TLDRUpFront: The opening day of President Trump’s Senate Trial focused on debating and passage of the Organizing Resolution governing Trial Procedures where the precedent of President Clinton’s Trial proceedings loomed large. At the end of the day with a GOP Majority Senator McConnell held the field getting most of what he and President Trump wanted. But McConnell did soften limitations on time to present opening arguments and allowed the House evidence to be included. Still the major questions of calling witnesses and subpoenaing information were kicked down the road until after opening arguments on party-line votes. Chief Justice Roberts showed he will play an active role, at least on behalf of respect to the institution itself. We also present a visual guide to the key segments and sub-segments within the Senate and begin a living guide on votes and behind-the-scenes pressures that are determining the progress of the Trial.
FullContext in the Back:
With the outcome of the Trial predicted to fall well short of the two-third’s majority needed to Convict and remove President Trump from office much of the focus is on the optics and narrative of the Trial itself. Senate Democrats with an eye to the election want to expose as much of the charged abuse of power, including additional witnesses and documents as possible. The President doesn’t want to have to come out of the locker room and take the field to play on that front. But wouldn’t mind if the Senate stood in for Ukraine and opened investigations into his potential opposing candidate, Senator Biden. Senate Republicans just want the pain to be over and return to the happier times of avoiding legislative duties. (1)
However, the interplay in Senate factions is a bit more complex than just the binary construct, Senate Democrats and Senate Republicans. The InfoMullet has combined two sources of additional segmentation, layering them on top of one another, to give a fuller picture of the dynamics at play as the Trial unfolds. The Politico segmentation consists of five large segments that range across the continuum of those already convinced Trump is guilty within the Democrats to the Always Trumpers who would turn the other way after a 5th Avenue Shooting. FiveThirtyEight, because it’s FiveThirtyEight, went a step further offering a 10-segment analysis split across both sentiment towards President Trump with electoral realities.
We’ve combined the two below in an overlay. The five Politico segments in the top band and the FiveThirtyEight segments (including two combined for space) in the lower band. (2),(3)
Segmentation analysis of actions in Senate
The visual shows that although there are only two parties in the Senate, there are not only two sides to consider. And these sides approach the question of the narrative and optics of the Trial differently, allowing some intrigue to play out even within the realization it’s not going to change the final outcome. Unless one of those intrigues is to make the final vote to acquit or convict secret.
We’ll be using this graphic to visually represent both key votes and some of the behind-the-scenes pressures. Something we wished we’d had when doing similar day-by-day coverage of the Affordable Care Act (ACA) in 2010. Back then we tried to use formulas to represent shifting factions, and we’re still feeling bad about that.
Clinton Precedent and the Organizing Resolution
This context of segmented intrigue are key to understanding what happened yesterday during the debate and passage of the Organizing Resolution, which outline the procedures of the Senate are so important. The Senate has existing rules in place for how an Impeachment Trial is supposed to be run. (4) But an Organizing Resolution still has to be presented, debated, and voted on by the body of the Senate.
Senator McConnell had indicated a preference to simply adopt the Organizing Resolution of the Clinton Trial of 1998. (9) Because this resolution was negotiated in a bipartisan fashion and was accepted with a 100-0 vote among the Senators – it’s a strong precedent in which to base todays’ trials on. The Clinton Trial framework involved several days for each side; House Managers and Presidents Defense Team to make their opening arguments and incorporated the existing evidence of the Starr inquiry. After opening arguments, the Senate would reconvene to debate on the calling of additional witnesses and subpoenas.
It’s easy however to mistake the precedent as a good guide for the current situation. During the Independent Counsel inquiry and Impeachment inquiry in the House, President Clinton cooperated to a far greater extent than President Trump. Aides were allowed testify; documents produced upon request. And Clinton made limited use of Executive Privilege and only one technical aspect made its way into the court. Contrast that with the current proceedings where President Trump has instituted a complete ban across the Executive Branch on any participation in any form. This is why Democrats wanted to modify the Clinton precedent by ensuring certain key witnesses, such as National Security Advisor Josh Bolton, was on the list to be called and the Senate would subpoena key documents still withheld by the DoD, DoJ, and DoS.
All that being said, the precedent is still a strong one. The last time the Senate voted 100-0 was when it demanded that the 25 JUL Trump-Zelensky phone-call transcript be released. The Senate has the ‘sole power’ to conduct the trial in any form they choose and in this age of intense partisan rhetoric – casting ‘back’ to a strongly established precedent that met the President’s goals half-way was appealing to Senator McConnell.
In what appears now to have been a gambit for positioning, Senator McConnell modified the Clinton Precedent in the Organizing Resolution with less than 24hour hours before the start of the Trial on Tuesday. This came after months of refusing to negotiate with Senator Schumer and confirmed all the worst fears of the Democrats. It condensed opening arguments to only 24hours – to be held in 12hour shifts. It also didn’t include the evidence collected by the House inquiry as a matter of process, instead leaving that to a vote which the Senate would hold after opening arguments. The McConnell-shimmy raised the specter of four marathon days of testimony, much of which would be occurring into the wee hours, and a Senate voting for no further witnesses, evidence, or subpoenas concluding next week.
Enter our visual! We show here how a collection of segments behind the scenes exerted pressure on the opening day of the trial on Senator McConnell. We estimate some of the segments closer to the center on the matter, in this case, aligned with the Democrats in expressing concerns of the optics of finishing an Impeachment Trial in less time than my Facebook Page Promotions will last. (ed. note: I’m ready to seek a refund if that happens!)
Living analysis of Senate votes and negotiations.
By mid-day Senator McConnell abruptly changed his position by allowing more time to present opening arguments and the inclusion of House evidence into the trial record without requiring a vote. Though the President’s Defense team can object to parts of it. Some pundits called calling this an unexplained reversal. Others credited the pressure by the various interest groups. (5)
We feel that it was a combination of pressure and clever maneuvering by Senator McConnell. By pushing the Clinton precedent McConnell set up an ‘expectation’ that he could then hokey-pokey step-away from at the last minute. This gained the favor of President Trump who wants a harder line and the ire of Democrats everywhere, which also burnishes McConnell’s credentials among his base.
But McConnell then stepped right back again – returning to the Clinton precedent. In true hokey-pokey fashion McConnell ends where he started, shaking it all about. He’s gained some grudging relief of the Democrats and his own institutionalist colleagues, which may come in handy in keeping the trial on path in the next two weeks. The President and base are still happy because the “hardline” McConnell took received more coverage than the return to precedent. It can’t hurt the Senate Majority Leader to have offered a token gesture to Trump before the Trial begins even if he didn’t stick to it.
And just to be sure, McConnell fed a few more tokens into the Twitter-in-Chief’s Gumball machine as he led the GOP to table every single amendment offered by Senate Minority Leader Charles Schumer. The Schumer amendments are actually modifications to the Clinton precedent, aligned with the Democratic desire to ensure that the optics and narrative of the Trial maximize the exposure of President Trump’s charge misdeeds. This includes calling witnesses, subpoenaing documents etc. The amendments were defeated in order as they were presented , tabled until after the opening arguments had been heard, returning to the status quo of the Clinton precedent. Whatever good will McConnell gained from the GOP colleagues who had expressed concerns on the harder line paid off in that every vote was by strict party lines.
After yesterday’s maneuverings, we now have a good idea at least for how the opening act of the Trial will play out. (6) This schedule presumes there aren’t many or any additional opening motions made at the start that may delay opening arguments.
Opening Arguments House – Wednesday (22nd) through Friday (24th)
The House presents its case, which we already know. Few surprises here.
Opening Arguments President – Saturday (25th) through Tuesday (28th)
The President’s legal team presents their case. It’s hard to imagine how they’re going to stretch the seven-page brief of ‘perfect phone call’ and ‘nothing wrong’ submitted over the weekend into three days. But we anticipate a lecture by Dershowitz on his theory of unrestrained Executive Power (a theory we do not agree with.) This is also where the President’s team may try and put Senator Biden on the stand with allegations of impropriety for himself and his son in the Burisma dealings. This is where we want to watch closely what Presiding Officer, Chief Justice Roberts allows. According to Senate rules, he has the authority to rule irrelevance to the proceedings. Thought it’s not clear if that will occur during opening arguments, which even in a criminal trial (which this isn’t) tend to have a it more leeway than strict questioning. However, if the Chief Justice Roberts does rule against introducing Biden’s behavior, expect that to spark a chain of events where the Senate reconvenes behind closed doors to decide whether it will, in effect, over-rule the Chief Justice of the Supreme Court. A precedent that I’m not familiar with – I don’t think it’s ever happened before in this circumstance given the two previous Senate trials.
Presidential Objections to House Evidence Wednesday (29th) through ??
Following the Opening Arguments, the Presidents team also is afforded the opportunity to object to House evidence entered into the record. This is a wild card. It’s not clear how much they will attempt to do this, how Chief Justice Roberts will rule, and how many of his rulings will become subject to potential over-over-rule by the Senate.
Senate Questioning ??
Following the Presidential Objections to House Evidence comes a scheduled sixteen-hour period during which the Senate can question either side. All questions must be submitted in writing to the Chief Justice.
Return to the Table
After the Senate concludes it’s questioning then, according to the Clinton precedent, the entire Senate reconvenes behind closed doors. This is where the debate, and votes, on whether to call additional witnesses or subpoena additional documents will play out. This will go one of two ways. Boring (because they vote to do nothing.) Or chaotic – because as soon as witnesses are opened to be called or documents subpoenaed, a whole cascading effect kicks off. The President has already asserted he will exert Executive Privilege to bar the testimony of National Security Advisor Josh Bolton. A subpoena for Executive Branch documents may provoke the White House to stiff-arm them the same way they did the House. Both of those are likely to head to the Supreme Court for resolution. Also, any introduction of witnesses or subpoenas against the President opens the door for calling of witnesses or subpoenas against Senator Biden. Since this is a closed-door session of the Senate, it’s not clear how or if Chief Justice Roberts can rule on ‘relevance’, or whether that must be saved for the testimony itself.
It’s this session that will determine if the Impeachment Trial is a play of two Acts or three. If there are no witnesses or further subpoenas, the Trial will move to a vote for acquittal or conviction. If additional evidence is called – that becomes the new Act II with the final vote becoming the Act III. Finally, a key part of this debate is whether or not the final ballot will be secret. There is speculation that if the vote to acquit or convict was held in secret, President Trump might lose 30 or so Republicans. Though all speculation to date of “conditions under which Republicans would defect” has had all the predictive capacity of the 2012 Mayan Calendar Apocalypse forecast. The default option is a transparent vote, and it would take a change of the Senate rules to overcome that, so we don’t consider it likely.
As a postscript one question many were watching, including us, was what role Chief Justice Roberts would play as the Presiding Officer in the Senate. (7) His formal power is limited in that the Senate has ‘sole power’ to run the Trial and are ‘inherently political’, decided by a vote of the body. But he still has a strong narrative and shaping role he can play in how he goes about his duties.
This question was answered in part yesterday after House Manager Jerry Nadler and White House Counsel Pat Cipollone hyperventilated at one another trading insults. The Chief Justice put a quick end to that:
“I think it is appropriate at this point for me to admonish both the House managers and president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body,” Roberts said, in a rare comment. “Those addressing the Senate should remember where they are.”(8)
At a time that faith in Congress is at an time low, it’s nice to know that there is at least one adult in the room.
Even if they’re from a different branch of government.