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Jan 22, 2020

Analysis | Tuesday’s Senate trial debate, in 5 minutes

Amber Phillips

Okay, so President Trump’s impeachment Senate trial has started. Kind of. Think of what happened Tuesday, which we’ll break down below, as a practice round for the actual trial part of the Senate trial.

Opening arguments didn’t start. Instead, we got a lengthy debate about the rules for how the Senate trial will work, with Senate Democrats introducing a number of amendments to call witnesses and documents at the outset of the trial. Senate Republicans have voted each one down, and they eventually approved rules for how the trial will work after the debate over amendments ended.
We also got a look at how Trump’s team will mount its first legal defense of his actions: It includes plenty of hyperbole and inaccuracies.
Let’s start with the rules, since they will govern what happens in coming days. It’s notable that as their amendments continue to get defeated, the battle over how to shape the trial included a relatively small, symbolic victory for Democrats. Here are three big things about the rules.
1. Each side will have 24 hours to present its case, just as each side did in the trial of President Bill Clinton.
The drama over that: Senate Majority Leader Mitch McConnell (R-Ky.) originally told each side to smush its testimony into two days. That would have forced Democrats to present their arguments well after midnight, instead of in prime time.
The Post’s Seung Min Kim and Elise Viebeck report that two Republican senators, Susan Collins of Maine and Rob Portman of Ohio, objected behind the scenes to that schedule. McConnell likely recognized it would look bad if any Senate Republican broke from him before the full trial even began.
So at the last minute, he changed the plan to allow each side to present their arguments over three days. That is more in line with what Democrats want.
2. The trial will punt the big vote on witnesses until a week or two in, after opening arguments and questions from senators.
The drama over that: Even though this vote was also delayed during the Clinton impeachment trial, Democrats point out that it was less consequential then. That trial had a separate grand jury investigation that thoroughly interviewed key people, so there weren’t any new witnesses to uncover.
McConnell isn’t completely ruling out witnesses, so what’s his end game in delaying the vote? He is likely hoping by that point, a majority of senators will be tired and want to move on. When the trial is in session, senators can’t talk or use their cellphones or do other senator-y stuff, like campaign or fundraise or legislate. I could see their inner monologue at this juncture going something like this: So, do you want to vote to extend this one or two more weeks? No, thank you.
3. The trial allows evidence House Democrats gathered to be presented at the outset — but only after a fight.
The drama over that: McConnell’s rules originally required the Senate to vote a few weeks into the trial on whether to allow evidence from both sides. That was a big departure from the Clinton trial, when senators sat down at their desks on the first day to pages and pages of evidence printed out by both sides.
But Republican pressure forced McConnell to change that, too. Now all evidence each side has gathered (think impeachment testimony, documents subpoenaed by the House) can be presented unless a senator objects.

Does designing a trial to benefit Trump break the rules?

No, impeachment expert Sarah Burns with the Rochester Institute of Technology tells me. The rules say that as long as McConnell has a majority vote, he has freedom to shape this trial in ways he wants. It might break the constitutional spirit of a Senate trial to be impartial, but that was always a lofty goal.
But on Tuesday, we saw how some pushback from just a small number of members of McConnell’s party can make a big difference in this trial. That’s something to watch for going forward. Will there be Republican pressure to force Trump’s top aides to testify?

About the White House’s defense of Trump

Trump’s defense team will give its opening statements later this week. But it participated in Tuesday’s debate on the Senate rules for the trial, and we got a preview of the tone planned for the president’s defense. So far it includes:
Multiple inaccuracies: Here’s a big one. White House counsel Pat Cipollone said that Republicans weren’t allowed into the depositions of impeachment witnesses. That’s wrong. Republicans on three relevant committees had access and did indeed participate.
Hyperbole: “Frankly it’s the kind of thing the State Department would criticize if they saw it in a foreign country.” That’s Cipollone, accusing Democrats of overreaching so much so that he compared them to an undemocratic country.
Attacking the Democratic impeachment prosecutors and senators running for president: Trump’s lawyers are trying to make this personal. That prompted lead House manager Rep. Adam B. Schiff (D-Calif.) to use a vulgarity on the Senate floor: “We don’t want to talk about how, pardon the expression, ass-backwards it is to have a trial and then ask for witnesses, and so we’ll attack the House managers, because maybe we can distract you for a moment from what’s before you.” In one instance, Sekulow severely overreached, misquoting one of the managers.

A parting thought: How the times have changed from the last modern impeachment trial

Former Senate historian Donald Ritchie told me that the top Senate Republican and Senate Democrat during the Clinton impeachment trial worked together closely and in as much of a bipartisan manner as possible to set up a trial both sides could be comfortable with. “They wanted the Senate to look good, to look dignified and to look serious,” he said.
That trial ended with a Senate divided on whether to remove Clinton from office. But every senator gave the two leaders a standing ovation for how peaceful and relatively nonpartisan the process was.
Two decades later, there are no backroom negotiations between McConnell and Senate Minority Leader Charles E. Schumer (D-N.Y.), the top Senate Democrat. Democrats didn’t even know about the rules until a day before the planned trial. Instead, both sides are choosing to fight each other in front of the cameras and on the Senate floor.
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What else you need to know about the Senate trial’s Wednesday session

It starts at: 1 p.m. Wednesday with House Democrats beginning their opening statements.
It ends at: Whenever the Senate and Chief Justice John G. Roberts Jr. decide it’s done for the day. (Ritchie told me recently that during the Clinton trial, Senate Republicans tried to wrap up one day by dinner time, and then-Chief Justice William Rehnquist told them to keep going.)
Also, some of you have asked whether this trial interferes with Roberts’s day job; the answer is yes. The Supreme Court is supposed to be hearing oral arguments for cases in the morning.
You can watch it at:, including a live Washington Post show I’ll be on at noon Eastern time analyzing the day ahead.
We expect the whole trial to last: Anywhere from two to six weeks is a good guess. The trial goes on for six days a week, with only a break on Sunday, until there are votes to convict or acquit Trump on each count of impeachment. Around two weeks in, the senators will vote on whether to call witnesses, which could lengthen the trial significantly.
There are a lot of big 2020 events this trial is bumping up against, including Trump’s State of the Union planned for Feb. 4.

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