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We have entered a new year. I, for one, want to start with a fresh outlook, regardless of my tendency to assume the worst when it comes to politics. I think that breaking through the stand-off regarding the impeachment of Donald Trump could start a tidal shift in the power of the Republicans. I’m calling out Mitch McConnell to disregard any demands by the Democrats, rally the Republicans, and get this show on the road!
In a previous post, I explained some of the requirements, or lack of them, for impeachment. The articles of impeachment have essentially been delivered (by public announcement); the trial can proceed whether Pelosi appoints Managers or not; and there do not have to be witnesses. These points make up the crux of the stalemate:
This is not a criminal trial. The Democrats are demanding the processes of a criminal trial, and yet they refused to follow those types of procedures in their own investigation.
They can’t have it both ways; no acrobatics they try will make it a criminal trial. So, all of the demands they are making go out the window.
The trial must be fair and impartial—Senators take an oath that they will “do impartial justice,” but technically declaring they’ve made up their minds doesn’t contradict that statement. Mitch McConnell has declared that he is not impartial at all, and Frank Bowman, a University of Missouri law professor responds:
‘In the past,’ Bowman said, ‘senators try to maintain at least the fiction of impartiality, to maintain at least the notion that they could be persuaded. What we have with McConnell … is essentially a statement that there’s nothing you can do that’s going to persuade us: We’re the president’s men and women, and he’s going to stay in office.’
Democrats may see this as brazen, but it’s not unconstitutional.
In a criminal trial, lawyers probably would keep someone off the jury if he declared as little impartiality as McConnell.
In an impeachment trial, senators can’t be disqualified if they express bias. That makes sense, Bowman said. Otherwise, ‘the majority will just disqualify the minority and you have this sort of bizarre free-for-all, with six people left standing. It will be silly.’
So Chuck Schumer and Nancy Pelosi can call it “unfair” all they want, but it’s a meaningless charge. This impeachment is not a criminal process.
Nancy Pelosi is making demands about the rules the Senate should make for the trial—just as the House made its own rules for the impeachment process, the Senate has sole authority to make rules for the trial process. No ifs, ands, or buts.
Due process, which the President has been demanding, does not apply to an impeachment–Michael Gerhardt, a University of North Carolina law professor, explains due process in this way:
The Fifth Amendment says no one can be deprived of ‘life, liberty or property’ without due process of law. A president facing an impeachment trial is not at risk of losing life, liberty or property.
Congress ‘is not obliged to follow due process, (though) it may well decide to provide things that look like due process,’ Gerhardt said.
Due process, at a minimum, requires an impartial decision-maker. ‘You can see how that doesn’t really apply to impeachment,’ he said.
I’m sure the President is frustrated by this fact, and he may already know he has no grounds to stand on; I hope his protest is just part of his “show.” This is not a criminal trial.
I understand that Mitch McConnell might choose to wait until the Christmas break has ended. Beyond that date, I see more negatives than positives for allowing Nancy Pelosi to drag out delivering the articles.
If she waits—she could deliver them right before the election, and hope to affect the results. She could drive Donald Trump crazy (which I believe gives her a certain level of satisfaction); you can say that his protests are theater, but I think he wants this thing done.
If she continues to demand to have input to the Senate rules—there is no good reason for McConnell to acquiesce. None.
If McConnell moves forward after the Christmas break—he can give Pelosi three days to deliver the articles, and if she doesn’t, he has many ways of appointing managers to acquire them or even proceed without them. He should forget about bringing in witnesses as part of the trial. He should either set limits to how long the attorneys can take to present their sides or dismiss the entire case.
(Other investigations can be scheduled to depose all the people they wish to interview about the last four years; those people don’t need to be part of the trial.)
Then the Senate should vote.
The Republicans can use this moment as a launching pad for an assertive and determined beginning to the year. It’s time to put impeachment behind us: the sooner, the better!