TDS Strategy Memos
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By Ed Kilgore
My efforts to understand and explain the murky process for impeachment trials led me to this realization which I shared at New York:
[F]or six particular Democratic presidential candidates and their campaigns (Michael Bennet, Cory Booker, Kamala Harris, Amy Klobuchar, Bernie Sanders, and Elizabeth Warren), the possibility of a Senate impeachment trial occurring during the early stages of the caucus/primary season represents a potential calamity. And as the Washington Post reports, that’s a real possibility, particularly if the House drags its feet for reasons ranging from administration obstruction to the desire not to spoil the festive holiday spirit:
“House Democrats increasingly expect their impeachment effort against President Trump to stretch well past Thanksgiving, possibly forcing a Senate trial into January or later — a timeline that could disrupt the final weeks of campaigning before the party starts to choose its nominee.
“House leaders had initially hoped to hold a floor vote before the Nov. 28 holiday so the Senate could hold trial before Christmas. But the surprising number of witnesses agreeing to testify behind closed doors in the Capitol over the past few weeks has extended the timeline and sparked a debate over whether prolonged impeachment proceedings are politically prudent.”
More recently House Democrats have been talking about Xmas as a practical deadline for concluding their part of the impeachment process, which means the beginning of any Senate trial will extend well into 2020.The standing Senate rules do require a fairly expeditious beginning for impeachment trials after the House has passed articles of impeachment, so it’s not like Mitch McConnell can deviously get it rolling the night of the Iowa Caucuses (February 3). But if the House really doesn’t get its part done until near the end of the year, you could easily see a trial running through the critical pre-Iowa stretch of frenzied activity. The Clinton trial, which was about as cut-and-dried as any presidential impeachment trial could be, lasted from January 7 until February 12, 1999. Let’s say for the sake of argument a Trump trial begins and ends precisely on those dates in 2020. It would encompass both the Iowa caucuses (February 3) and the New Hampshire primary (February 11). If it started later or ran longer, it could directly interfere with the Nevada caucuses (February 22), the South Carolina primary (February 29), or — worst-case scenario — the 12 states (including California and Texas) holding primaries or caucuses on Super Tuesday (March 3).
Senate Intelligence Committee Chairman Richard Burr, who is presumably privy to Mitch McConnell’s thinking, said on November 12 that he anticipated a six-to-eight week trial. That would be longer than the Clinton trial.
An impeachment trial doesn’t allow for time off to do campaign events: The Senate rules require that once the trial begins, it must stay in session six days a week (Burr suggested a daily schedule running from 12:30 to 6:30). Perhaps some senators think they could make more hay at an impeachment trial than they could hitting the potluck circuit in Iowa or working street corners in New Hampshire, as the Post suggests:
“Several senators running for president, including Sen. Kamala D. Harris (D-Calif.), a former state prosecutor, are likely to try to use a trial of Trump as a showcase for their candidacy.”
Unfortunately, the current Senate rules compel virtual silence from senators during the trial itself, though they are free to run their mouths before it begins and after it ends. During the trial, unless precedents are ignored, all senators get to do is to send written questions to be posed by the House managers or the president’s attorneys, and then stand up and vote “guilty” or “not guilty” when the deal goes down. Not much room for showboating there.
Now I suppose it’s possible the rules could be interpreted in a way that would allow Kamala Harris and her senatorial rivals to leave the Capitol building each night of the trial, go two blocks away, and make brilliant presentations on the case against Trump or anything else that popped into their heads. But that’s likely going to be subject to ad hoc impeachment trial rules that a majority of the Senate — e.g., the Republican majority — will impose. It’s doubtful GOP senators will feel inclined to accommodate the political needs of their Democratic colleagues. In talking about the precedents dictating silence, McConnell said earlier this month:
“McConnell … warned that senators won’t be allowed to speak because they are jurors. McConnell said such silence ‘would be good therapy for a number of them.’”
If an impeachment trial is a headache for those six senators (or however many of them are still in the race, if any, when this all happens), it could be a boon to non-senators — particularly Joe Biden, who can bloviate to his heart’s desire about the lessons he learned on impeachment and all the issues involving Trump during his 44 years as a member or presiding officer of the Upper Chamber.
For candidates and their staff, all these contingencies make the already difficult task of planning and executing a campaign in the hothouse atmosphere of this cycle impossibly tricky. And for senators who want to be president, knowing that Mitch McConnell and his troops will get the final say on some of the most crucial questions of timing and procedure is like knowing that Satan gets one final shot at your soul right there at the Pearly Gates.