Jan 17 2020
This Wednesday, seven Democrats selected by Speaker Nancy Pelosi (D-CA) to be Impeachment Managers for the House of Representatives presented two articles of impeachment against President Trump to the Senate.
Per Senate rules, the articles were then read on the Senate floor Thursday before Chief Justice John Roberts was sworn in to preside over the trial. Senators then swore en masse to “do impartial justice according to the Constitution” before signing a book acknowledging the oath they had taken.
This Saturday the House will deliver its trial brief to the Senate, and the White House response brief is due Monday.
On Tuesday the Senate will vote on a new set of rules for the trial that closely resemble the rules for President Clinton’s impeachment trial in 1999. If those rules are adopted, and it looks like they will be, the rest of the trial will unfold as follows.
First the House Impeachment Managers will have two days to present their case against the president. Then the president’s lawyers will have two days to present their defense.
After arguments by the prosecution and defense, senators will have one day to ask questions of the House Impeachment Managers and one day to question the White House. All questions will be submitted in writing to Chief Justice Roberts, who will then submit the questions to the proper party.
After those first six days (two for the House, two for the WH, one questioning the House, one questioning the White House), the Senate will have a debate and a vote about whether there is a need to hear from more witnesses.
If the Senate votes that more witnesses are not needed, then it can move to vote on a final verdict for both articles of impeachment.
If, however, the Senate votes to hear more witnesses, it will be up to the House Impeachment Managers to name the first witness they want to call. There will then be a vote on whether the Senate wants to hear from that particular witness.
But if the Senate votes to hear from a particular witness, that doesn’t necessarily mean that witness will testify. All of the witnesses that Minority Leader Chuck Schumer (D-NY) has said he wants to hear from (former National Security Adviser John Bolton; current acting White House Chief of Staff Mick Mulvaney; Mulvaney’s chief deputy Robert Blair; and Office of Management and Budget Associate Director of National Security Programs Michael Duffey) are advisors to the president.
That means that the president, not the Senate and not the witness, can assert executive privilege to block that testimony. This is important. It is the president, not the witness, that owns the privilege.
Thus, even if the Senate votes to here from, say John Bolton, the White House will immediately initiate litigation seeking a declaratory judgment in federal district court quashing the Senate subpoena on the grounds that anything relevant to the facts of the impeachment trial would be covered by executive privilege.
At a bare minimum, it would take a week for the district court to issue a decision, another week for the appeals court to make a decision, and then another probably two weeks for the Supreme Court to decide. (This whole process would usually take years to complete, but might be expedited here; nevertheless, it’s hard to imagine it taking less than a month under any circumstance).
At that point either the Court would rule for the president, meaning the Senate had wasted an entire month (possibly longer) for nothing, or a new precedent would be established functionally ending executive privilege forever.
I can’t say I’m looking forward to this trial but I promise to give these issues the attention they deserve.