This Week in Impeachment: A Senate Trial in Limbo

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S1: Previously in impeachment.

S2: All in favor, say I. No.

S3: The House voted to charge the president with abuse of power and obstruction of Congress.

S4: No one is above the law and the Constitution is the supreme law of the land.

S5: But is the president really been held accountable if Nancy Pelosi refuses to send the articles of impeachment over to the Senate?

S6: Meanwhile, other House Democrats seem to be suggesting they’d prefer never to transmit the article. I don’t need.

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S7: So Jim Newell, Slate’s man in Washington. I want you to answer one question for me. Is the president impeached or not? Let’s go is sure. Let’s go with Srini and Luis. He was impeached in the House.

S8: I know there’s a technical argument about which there can be no law review articles written about whether he’s actually impeached if the articles haven’t been transmitted to the Senate. But.

S7: Ye’s impeach. There’s a vote undertreatment. He was impeached. Well, you were there for the vote December 18th. Everyone gets into a room in the House of Representatives, decides to vote. And can you just put us back in that scene? Sure.

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S8: So I made the mistake of showing up around 9 8 AM when, you know, for the start of the debate and there are a few Republicans tried a few procedural motions just to sort of slow down the process early on. But then there was a couple hours of debate on the rule, either the procedure under which impeachment would be debated. And then there was another seven or so hours of debate. And I was in the chamber for all of that, which is a really stupid idea because I should have just shown up around 6 o’clock when debate was wrapping up. And we sort of have the heavy hitters coming up and giving their speech and then we actually have the vote. So it was.

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S7: So you were there for all of the throat clearing, all of it.

S9: Can you believe I did that? I don’t know why I did that. But I mean, I did I did take a couple of breaks just to to mosey around to get lunch, but otherwise in the chamber.

S1: I mean, you wrote about how the Republicans were really just enjoying themselves like they were loving life.

S9: Yeah. And I don’t know. You know, I don’t know if they read on the politics is correct or if they were just sort of putting on a show of their read of the politics. I think they really think Democrats are making a big mistake. You know, this conference, after their their drubbing, the last elections, is more conservative than than previous House Republican groups.

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S8: So, you know, there weren’t ever a lot of defections in play, but there was no one. I mean, even close to voting for impeachment, the Republican side, and I think they felt really animated that they were able to hold the line like that. It was just one of those moments where it felt like they think that that’s going to help them pick up a lot of seats in the next election. I don’t know that that’s right or not. Whereas on the Democrats, I think you had a little bit more, you know, unease among some of the vulnerable members, even though they all also got almost entirely in line behind impeachment. I think some of them, you know, are still a little nervous and know that this is going to make their re-elections a little more challenging.

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S1: Well, and there’s this issue, which is the constitution is really light on specifics about what happens after a vote like this. So the idea is that the House was supposed to send the articles to the Senate. The Senate holds a trial. But Mitch McConnell had been saying openly, well, I’m working hand in glove with the White House and everything I do during this, I’m coordinating with the White House counsel.

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S10: There will be no difference between the president’s position and our position.

S7: So then we got this idea that sort of burbled up from the legal community. What if we just held the articles of impeachment back?

S8: Yes, we did. And I I’m a little surprised how quickly that that theory gained traction within the House Democratic caucus, because it was really just a couple of days before the impeachment vote. We had Laurence Tribe, who’s the the esteemed Harvard professor. He wrote in The Washington Post that the House is under no obligation to immediately turn over the articles to the Senate. And then, you know, during the debate, there were some members, you know, more liberal members saying outside the chamber that this is something they really need to consider just because it’s gonna be a sham of a trial that Mitch McConnell was preparing. And then, you know, we didn’t know if that had exactly gotten up to House leadership entirely. I was at a press briefing with Steny Hoyer the day before. He had said that’s probably not the path will go down. But it’s an interesting idea. But then, you know, the next day after the impeachment votes, Nancy Pelosi is asked about whether she’ll transmit the articles and she was noncommittal. And I think that was a little bit of a of a surprise that this theory had gotten all the way up to her in just, you know, at least to the point where she’s not committing to naming the impeachment managers and sending it over to the Senate right away.

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S7: Well, it’s funny, because I really do have this question my mind, like what is the game plan here? Because as soon as this hold was announced, you saw, you know, the Republicans kind of embracing it like, sure, don’t send us the articles of impeachment. We’re cool. Right.

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S9: So here I I also have been trying to figure out what exactly the leverage is for a couple of weeks. I’m not sure I have an answer. I mean, if you look at the original Laurence Tribe op ed, he writes he’s talking about withholding the articles as a tactical matter. It could strengthen Senate Majority Minority Leader Chuck Schumer’s hand in bargaining over trial rules because of McConnell’s and Trump’s urgent desire to get this whole business behind them. Now, that’s one for two with hair. I think Trump does have an urgent desire to get this behind him. And I think he would like a quick acquittal. And he could say that, you know, this was entirely disproven. You did nothing wrong, Bob. Bob, I don’t think McConnell cares. Actually, I know McConnell doesn’t care. I mean, he has said, you know, pretty openly, I don’t care if we never, ever trial, you know? And there are a couple of reasons for that. One. He wants to preserve his. Wartimes we can keep confirming judges and two, he has some vulnerable members like Cory Gardner, Susan Collins, Thom Tillis, some others who are up for re-election this coming cycle. And if he is an option, they’re not having to vote one way or another here, like he’s gonna be pretty happy with that option. So it’ll be interesting to see when Pelosi and the rest of the House comes back early next week is if that’s still sort of the thinking that, OK, well, let’s just try to hash out a deal in next couple of days and then get the trial going or if this really is going to be a sort of indefinite hold, that could go on for a while.

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S1: On Friday, we got a better idea of how political leaders are thinking about this trial when Mitch McConnell and Chuck Schumer made speeches from the Senate floor. McConnell basically called the Democrats chickens. He expressed outrage that Nancy Pelosi and the Democrats in the House would try to control the process he oversees.

S11: Some House Democrats imply they’re withholding the articles. For some kind of leverage. So they can dictate the Senate process to senators.

S8: Denver Democrats made the choice in the House to get this done by Christmas pretty much. And now they’re expecting the Senate to try and gather more information when we can’t just, you know, try what they’ve already given us. And I think that’s, you know, that’s not an unreasonable point.

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S1: But then Chuck Schumer spoke. He tried to keep the emphasis on what Democrats want, which is rules that guarantee senators and the rest of us. We’ll hear from key witnesses who have until now been silent.

S12: There has never, never in the history of our country been an impeachment trial of the president, in which the Senate was denied the ability to hear from witnesses.

S8: So the four witnesses that Chuck Schumer has requested are Chief of staff Mick Mulvaney, former national security adviser John Bolton, an Office of Management and Budget official Michael Duffy, and a national security aide to Mick Mulvaney named Robert Blair.

S1: Schumer said that these witnesses, they were especially important in light of some new reporting that’s come out over the last week. More breadcrumbs linking the president to a hold on military aid to Ukraine. Allegedly, the White House held this money back to convince Ukrainian officials to investigate.

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S13: Joe Biden, one of those e-mails were released yesterday was from Michael Duffy, one of the witnesses we’ve requested. To the Pentagon comptroller and it read, quote, clear direction from POTUS’s. The president. To continue the hold clear direction from the president, to continue the hold many of these emails that were reported on in the last week.

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S1: Originally they were released with heavy redactions. But The New York Times and the Web site just security revealed what the Department of Justice had blacked out.

S12: It is completely redacted every word. Crossed out, not available, can’t be seen.

S14: And keep in mind, these are the same things that Congress has been requesting and hasn’t been getting. And you can see what the Department of Justice has decided to redact. What they’ve decided to redact is people directly linking the hold on aide to the president, specifically saying the president is requesting this via the chief of staff, saying, you know, this comes from POTUS and also the frustration of people, for instance, at the Pentagon, because the Pentagon, they had already decided they were going to release the aide. It’s very rare. I don’t know if it’s ever happened at someone, then clause the aide back. And so they get into this fight with the budget folks at the White House. And at the end, you know, you can sense the frustration. The quote is, you know, you’ve got to be kidding me. I think from this woman at the Pentagon saying, what are you doing?

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S9: Well, I mean, that was sort of I mean, she just. Yes, that I’m speechless because what happened was, you know, there’s this unexplained hold for all these months and it’s going into, you know, late August, early September. And then the OMB is saying to this Department of Defense official, like you’ve been told for, prepared to release this aid for whenever the hold is lifted. So if the hold is lifted and the money doesn’t get out in time before the September 30th deadline, then it’s your fault. And I mean, I thought she was polite in her response, saying just I’m speechless and not just cursing him out, you know? I mean, it was really quite it was really quite an incredible thing. Right. Because she had been warning her. And it was also just it was like classic, like D.C., just like but buck passing, you know, like it’s not my fault and protecting myself or directing protecting our agency here. You know, it was just gross.

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S14: Yeah. I mean, she it’s interesting because it’s just very disorganized. What it shows where, you know, the way they’re withholding this aid is just by, you know, putting a footnote into a document. And then the footnote kind of changes. And at first the Pentagon’s like you really need to put in there. If we don’t get this released by August 12th, we may not be able to release it like we just won’t be able to, like work the levers in time. And at first that note is in there and then gradually that note is not there, because clearly it’s not a detail anyone wants to highlight.

S7: Right.

S9: And I think in terms of, you know, looking to see whether this just shows a dysfunctional government process or whether it enhances the case that there was corrupt intent on Trump’s part. And more Democrats have been saying was they never notified Congress of this hold, which meant that they had something to hide. So I think that’s what they’re going with. But they also, you know. They still need to prove that a little bit. I mean, it seems like a strong inference as well, but it’s you always want to see more and more and more, but you’re just not quite sure when you’re going to get that. So I just don’t know if there’s some specific thing that Schumer and Pelosi have heard that they think they can get. You know, just with the documents they requested and with the specific witnesses that they want to hear from. But at some point, I think it will go lose their patients with this withholding process or just forget about it.

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S14: So we’re talking on January 3rd, but during the during the Christmas break, we did see some senators begin to sort of dip their toes in the water of saying they were disappointed at how Mitch McConnell was talking about how he would run the trial in the Senate. This is kind of the usual suspects. Senator Collins from Maine, Senator Murkowski from Alaska. What did you hear from. What did we hear from them in the last couple of weeks?

S8: So I guess the parts that that has been highlighted is that they were either very disappointed or disturbed or found it inappropriate to hear Mitch McConnell say, as he did at a press conference a few weeks ago, that he does not consider himself to be an impartial juror and that he is working hand in glove with the White House. So, you know, that’s Murkowski Collins. But they also both send their statements that they think the House has run this process in a really silly way. They both have mentioned that if there was a dispute over getting documents or compelling witnesses, they should have taken that to the courts and let it play out. I didn’t necessarily see anything in there. There’s actually I think Politico wrote yesterday there’s a big difference between feelings and actions. You know, they feel disturbed, but are they disturbed enough to to actually force McConnell’s hand and break from him in order to get witnesses?

S7: And I don’t know if we’ve heard we’ve seen that much how many senators would need to break off to force Mitch McConnell’s hand here for. So what’s the math here like? Who are we looking at?

S8: So the ones that everyone has sort of been thinking the most likely to be Murkowski, Collins, and then Senator Cory Gardner from Colorado, who’s the most endangered Senate Republican this cycle. And then maybe Mitt Romney, who, you know, is not endangered, but has been pretty vocal in how disturbed he’s been by the entire Ukraine scandal. He’s really actually been pretty alone in his caucus in expressing, you know, a lot of a lot of anger at the Trump for the way this played out in a lot of interest in hearing what the full story was. So those are the four likely sub suspects. Then there are a couple other vulnerable to semi vulnerable members like Martha McSally from Arizona. Thom Tillis from North Carolina. Joni Ernst from Iowa, who are all up for re-election this cycle. You know who else would be? I was in a reporter roundtable with Chuck Schumer the day after the impeachment vote. And he he said that the universe is larger than you think.

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S7: What was that and what was the context for that comment? Like what what was what was Schumer trying to say there?

S8: Well, some it asked him if, you know, there were any more that were capable of flipping on some of these votes beyond Murkowski. Collins, Gardner and Romney. And he was he was trying to suggest that there were a lot of people who are concerned about what they’ve heard and would like to hear more. So he was trying to suggest that there are many more potential Republican votes out there. They’re persuadable. You know, I didn’t believe him, to be quite honest. I said that. I said, no, it isn’t. You know, I think it’s it’s I think it’s four to five people. I don’t think that. I mean, Thom Tillis has been pretty lockstep behind the president. Martha McSally, I did not see her breaking with Trump. Joni Ernst, same thing. She’s a member of Republican leadership. You know, to be quite honest, I I really have trouble seeing any of these members breaking with McConnell to force his hand to try and compel original witness testimony. I just don’t think that Republican senators feel under much political pressure to get more information or really that they view this as difficult for them politically in the first place. I just you know, you look at the house, it was completely unanimous. The Senate, I think there are some who, you know, are not condoning Trump’s actions, but it’s a big deal to overturn Mitch McConnell’s control of the floor. And I just don’t see them feeling enough pressure anywhere near enough pressure to do something like that. I think it’s it’s you know, right now what Mitch decides is what goes.

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S15: We’ll be back after the break.

S1: With so much up in the air in Washington, I asked him to do one more thing for me. Lay out what the options are here for a trial when Congress is fully back next week. What happens then?

S8: So I know there are few possibilities. Rallies get turned on. One is that this Laurence Tribe idea, that of like bank shot leverage, you know, is going to work out and Democrats get all their witnesses and the documents they want. And and the trial starts immediately. You know, I don’t see McConnell giving into that.

S1: So that would be Schumer wins.

S8: Yeah. Yeah, that would be a complete sure. Win. Yeah. Schumer and Pelosi when I should say. Because she is putting her neck on the line right here. You know, another is that Democrats have sort of gone out on a ledge here and just need to find some way to save face. You know, in order to transmit the articles to the Senate, they have to get some sort of confession, concession from McConnell, even if it’s a superficial concession. So I think that this is a likely possibility. And then the other option is that the articles are never transmitted, which I I just don’t think that’s really tenable. I think it would don’t really see that lasting. I don’t think that’s what Pelosi ever wanted to do. Maybe she thinks he’s prepared to do it. I think he would make a lot of her vulnerable members who, you know, we’re really trying to keep politics out of this in their messaging, that this is about national security and they’re compelled to impeach President Trump because of what he had done. I think, you know, if you hold on to them forever, they’re going to get very irritated about that. And they’re going to, you know, let Speaker Pelosi hear that.

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S14: Well, I mean, we haven’t talked about the other option, which is all of this just kind of goes away. And Mitch McConnell wins. And what does he want?

S8: Yeah, I think a total win for McConnell would be just a week of the impeachment managers presenting their case, a week of the defense, a vote. It’s done. Move on. Go back to confirming 32 year olds to, you know, the Supreme Court or whatever. But I think I sort of similar to the idea of giving Pelosi and Schumer something to save face, to save faith and then going ahead with the trial as planned already.

S1: So your bet is on some kind of little fig leaf for the Democrats and we’re getting this over with on a pretty tight timeline.

S8: I don’t know. I just I have trouble seeing a total win for Democrats here. My bet is that we will get a trial. That is as my bet.

S3: Jim Newell, thank you so much for chatting about all this. Thank you. Jim Newell is our senior politics writer here at Slate. And that’s the show. What Next is produced by Mary Wilson. Jason De Leon, Daniel Hewett and Mara Silvers. Special thanks today to Rosemary Bellson out of Slate, D.C.. I’m Mary Harris. You can follow me on Twitter. I’m at Mary’s desk. If you go there at the very top of my timeline, you’ll see a little video that will teach you how to get your Alexa to play this show. It’s super easy. It’s kind of cool. Go check it out. We’ll be back next week with more. What next?