Thursday, January 02, 2020

...to the ridiculous


How, you ask?
Hawley ID's himself as a "Constitutional lawyer," whatever that is (it's a designation without a designee, so far as I can tell).  He should be familiar with the clause in the Constitution that gives "sole power" over impeachment to the House.  How he gets articles of impeachment "dismissed" when he's a U.S. Senator and they haven't been delivered to the Senate yet, is beyond me.  But not beyond his imagination, apparently:
If I understand Laurence Tribe correctly, that action would require a 2/3rds vote of the Senate.  The GOP doesn't control 2/3rds of the Senate.  But thanks for playing, Senator.  We have some lovely parting gifts for you.

Buh-bye!

The problems with analyses of these issues is lack of knowledge of how the Senate rules work.  I assume, again, Laurence Tribe knows more about this than Amber Phillips, because:

Let’s pause to understand the mechanics of how senators set up this trial. Before the trial gets started, senators vote on the parameters. It takes a majority vote to approve the rules. But they can make a decision later to vote on whether to add witnesses, and The Washington Post has reported that McConnell is hoping that after hearing opening arguments from both sides, Senate Republicans will just want to vote and be done with the trial. (If all Senate Democrats stick together, it will take defections from four Republican senators to get a majority on board with anything.)

There are a lot of errors floating in that paragraph, starting with the rules of the trial.  Those rules are already set.  Changing them would require a 2/3rds majority.  Voting acquittal on some kind of motion to dismiss would require the acquiescence of the Presiding Officer, who would be Chief Justice Roberts.  After his end of year message on democracy and the judiciary, he would be quite an empty robe if he simply let the Senate dismiss the articles on a simple voice vote with no witnesses and no evidence presented except arguments (which are not evidence in any sense of the word).  Phillips lists possible outcomes of the impeachment process in the Senate in order of likelihood.  This outcome is only slightly less likely than Hawley's tweets, or conducting a trial without the articles being forwarded (one major problem there is:  who conducts the prosecution if the House doesn't approve and forward to the Senate a resolution appointing managers?)

I really don't think conducting a trial without witnesses and with a vote to dismiss right after perfunctory arguments are made is going to work, whether McConnell wants it to or not.

Why this might not happen: Although McConnell controls the majority in the Senate, this isn’t the likeliest option, because there’s an argument that he and Trump want the trial more than Democrats do.

Trump sees a trial in the Republican-controlled Senate as a chance to exonerate himself and maybe even to undermine the Democratic-led House impeachment. A GOP Senate aide told The Fix that it’s possible that some red-state Senate Democrats vote to acquit Trump, which would go a long way toward Trump being able to argue that opposition to his impeachment was technically bipartisan. (Two Democrats in the House voted against impeaching him.)

Aside from the reasons above (McConnell doesn't have that much power over the trial, nor enough Senators to do as he pleases), there's the fact Trump wants a trial.  The GOP is jumping through Trump's hoops on absolutely everything.  Why will they stop now?  As Phillips acknowledges:

....McConnell has said that he’s working in “total coordination” with White House lawyers and that there is no such thing as fair in a political body, so why even try? “This is a political exercise,” he has said.
If McConnell gives Trump what he wants, Trump's supporters can't complain McConnell was responsible for what happened or failed to happen in the trial.  Will anything convince even 4 GOP senators to convict?  Nah.  So why not have the trial and avoid the anger of the base?  McConnell knows he's not going to win over non-Trump supporters with this fight.

Which is why the likeliest outcome still is:  "They come up with some kind of compromise".  If the trial is still in abeyance on February 4, Trump will come unstuck in the SOTU.  If the information release continues in the press, McConnell will find it impossible to resist allowing witnesses and evidence into the trial.  And there's absolutely nothing stopping the House from returning in January and conducting further hearings on the released e-mails alone and adding more articles of impeachment before sending it on, finally, to the Senate.  In fact, it might almost be malpractice for Pelosi not to do so.

The Senate is not in charge of this until the House turns it over to them, and even then, they have a Presiding Officer to reckon with who is not a Senator.  There is a great deal more in play here than McConnell's wishes, or his 51 seat majority.

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