05/10/2020

Constitutional scholars told Insider McConnell’s maneuver is “cynically Machiavellian” and a “hyper-partisan” manipulation of Senate norms.

Two weeks ago, Senate Majority Leader Mitch McConnell was in a bind.
Cracks were beginning to form in the ranks of Senate Republicans, and some moderate or vulnerable GOP senators were voicing their support for calling witnesses in Trump’s impeachment trial — a measure McConnell and other Trump allies were staunchly against.
Then, John Bolton, Trump’s former national security adviser, said he was prepared to testify. The announcement was McConnell’s worst nightmare. A pivotal witness who was in the president’s inner circle had stepped forward and offered to testify in a trial about the president’s misconduct. Could McConnell and Senate Republicans really afford to turn a blind eye?
The Kentucky Republican was stuck — until he wasn’t.
This week, he announced in a resolution that the Senate will begin opening arguments in Trump’s impeachment trial on Wednesday. If the Senate votes to hear from witnesses, it will depose them first and then vote on whether they should publicly testify.
The trial itself will be much more condensed than previous impeachment proceedings as well. If the Senate passes McConnell’s resolution on Tuesday, each side will be given 24 hours to argue their case over three trial days. During former President Bill Clinton’s trial, each side was allowed 24 hours of argument over four days.
Senators will then be given 16 hours for questioning. 
House Speaker Nancy Pelosi of Calif., left, and Senate Minority Leader Sen. Chuck Schumer of N.Y., right.
Associated Press
McConnell’s ‘cynically Machiavellian’ maneuver
Democrats sharply condemned McConnell’s resolution, calling it a rushed cover-up and a “significant” break from the precedent of Clinton’s 1999 impeachment trial. 
Schumer announced that he will introduce a series of amendments to McConnell’s resolution.
“McConnell promised over and over again, senators repeated over and over again, we’re going to follow the Clinton model,” Schumer said during a Tuesday press conference. “This departs from the Clinton model in many very significant and very important ways in an effort to cover up.”
Keith Whittington, a professor of politics at Princeton University and an expert on presidential impeachment, told Insider McConnell’s proposal to depose witnesses and then determine whether they should publicly testify “follows the rules” that structured Clinton’s impeachment trial.
“Depositions prior to public testimony seems to have been common in earlier impeachment trials as well,” Whittington added.
But some legal experts argue Trump’s trial shouldn’t be compared to Clinton’s, in part because of how differently the two processes played out. 
Clinton’s impeachment was informed by independent counsel Ken Starr’s year-long investigation into his affair with the White House intern Monica Lewinsky. All the relevant witnesses in Clinton’s case, including Lewinsky and the president himself, testified under oath during Starr’s investigation.
“There is really no applicability whatsoever between the two cases,” Allan Lichtman, a political historian at American University, told Insider. “McConnell blatantly lied” about the Clinton precedent being relevant and “that he would even follow it.”
Frank Bowman, a constitutional law professor at the University of Missouri school of law, called McConnell’s move “cynically Machiavellian” and a partisan manipulation of Senate norms and rules. 
“It’s not only a rush to judgment, but it is an effort to structure rules to avoid any possibility that the Republicans will have their fingerprints on the results,” he told Insider. 
“It’s a bad joke,” he added of the speedy process. “You wouldn’t set a briefing schedule like that in a DUI case.”
Professor Alan Dershowitz listens to U.S. President Donald Trump speak during a Hanukkah Reception in the East Room of the White House on December 11, 2019 in Washington, DC.
Mark Wilson/Getty Images
‘The machinery of representative democracy starts to break down’
Constitutional scholars condemned Senate Republicans’ handling of the impeachment process, which McConnell has publicly said he coordinated with the White House. 
Jens David Ohlin, a vice dean at Cornell Law School who’s an expert in criminal and constitutional law, told Insider that since the Senate trial is a public proceeding, holding closed-door hearings with witnesses who have key evidence that hasn’t yet come out would deprive the public of crucial information.
“Absent national security concerns regarding classified information, the depositions should be public,” he said. “The entire check on the process is that the public has a chance to vote for senators who are up for reelection. But if the Senate is hearing witnesses behind closed doors, the machinery of representative democracy starts to break down.”
McConnell’s move to depose key witnesses behind closed doors “seemed designed to satisfy some members of the Republican caucus … who might be insisting on leaving open the possibility of calling witnesses in at least some manner,” Ohlin added.
“McConnell doesn’t want Bolton testifying in open proceedings, but at the same time he needs to keep these senators from defecting and voting with Democrats on the witness issue.”
Bowman argued that McConnell wants to rush the trial to exhaust the public and ensure Trump is acquitted before he delivers his State of the Union address on February 4. 
“The obvious objective here, if you look at a calendar, is to have this thing done the day before the State of the Union,” he said. “That’s transparently what it’s for, is to get him acquitted so that he can walk into the chamber the following day and declare triumphantly that he’d been exonerated.” 
Corey Brettschneider, a constitutional law and politics professor at Brown University, told Insider the public should turn the Senate majority leader’s “hyper-partisan” actions “into an evaluation of McConnell and the Republican Senate.”
He added: “It’s as much a trial of their willingness to uphold the oath they took as triers of impeachment as much as it is about the president.”