Now that President Donald Trump’s Senate Trial has begun there are some critical points to keep in mind in evaluating both the process and the likely outcome. All analysis, up to now, is based on the very low probability that 14 Republicans would break party ranks to convict Trump on the two articles of impeachment (Abuse of Power & Obstruction of Congress).
It is not likely they will abandon Trump, despite two recent developments. The nonpartisan Congressional Budget Office concluded Trump violated the law by withholding assistance to Ukraine. And, Lev Parnas, an associate of the president’s personal lawyer Rudolph W. Giuliani, said that Trump approved and directed public tax dollars to influence the election by asking Ukraine to investigate his potential main rival, former Vice President Joe Biden.
Republican senators won’t break from him because these “facts” don’t matter in their upcoming primary elections. It doesn’t matter if they lose liberal independents, they never had them, and in most states, they don’t vote in the primaries. As long as they can keep their core Republican primary voters, who are 90% plus behind Trump, they will win the primary.
But afterwards, winning their general election could be severely jeopardized if the public perceives the trial as phony or not taken seriously by the Republicans. More importantly, the conservative independents, who are more Republican than Trumpites, could be swayed to vote for a Democrat who believes in the rule of law. That doesn’t mean those voters would necessarily go for liberal candidates, they could just sit on their hands and not vote. This is the what makes the senate Republicans vulnerable, much more than their Democratic challengers.
For instance, there are 22 Republican senators up for reelection in 2020, while there are only 12 Democrats. Ballotpedia did an analysis of these races using the 2016 presidential election and race ratings from three of the top organizations analyzing the races (Cook Political Report, Sabato’s Crystal Ball, and Inside Elections with Nathan Gonzales) they identified 12 Republican incumbents and 5 Democratic incumbents as being potentially vulnerable. The Republicans have a greater exposure.
The Democrats do not need to win the Senate trial by convicting Trump, no matter how much evidence that he should be. If the Republicans refuse testimony or admittance of documents, polls indicate that would alienate more voters than anything else. A poll taken ABC News and The Washington Post on December 10th, before the House voted for impeachment, showed 70% of Americans believe that administration officials should be able to testify. That attitude crossed party lines; 79% of Democrats, 64% of Republicans and 72% of independents agree that Trump should allow them to appear in a Senate trial.
The struggle to control the trial’s image will not be a high drama TV event. The senators do not speak! Their questions or motions are submitted on paper to the presiding officer, i.e. Supreme Court Chief Justice John Roberts. He decides whether to bring them forward. If he refuses, he can be overruled by a simple majority of 51 senators. Almost all of the TV political pundits have made much of the 51 vote rule, that allows the Senate to create their own procedural rules for the trial. It gives control of the trial to the Republican, since there are 53 of them.
There is a slight wrinkle in that description because the Standing Rules of the Senate details the rules of orderof the United States Senate. Normally it takes a two-thirds vote to alter any of the 43 standing rules that were last adopted in 2000. These rules could serve as a possible hurdle for the Republicans, and they may seek alter them to protect Trump.
In the past, both Democrat and Republican Senate majority leaders, had employed a “nuclear” option, by using just a majority vote to permanently alter the standing rules. Both actions had to do with eliminating the 60-vote rule for approving federal judicial appointments, including Supreme Court nominations.
This means that the Republicans probably could exercise that authority; with 51 votes they could do anything. But they if they use this nuclear option, it would appear to the public as excessive force in manipulating the senate trial to Trump’s advantage. That could be the straw that breaks the public’s back in seeing the Republican run senate trial as a fair one.
Most dangerous to the Republican senators seeking reelection this November, is that this move could dampen the support of their traditional conservative constituents to get out and vote for their reelection. Interestingly, one of the few mentions of the two-third rule being needed to change the senate’s standing rules was brought up by Fred Lucas, a reporter from the conservative The Daily Signal, which is funded entirely by The Heritage Foundation.
The conservative tradition is to respect the law and procedures. Senate Majority Leader Mitch McConnell rejecting the request by Senate Minority Leader Chuck Schumer (D-N.Y.) to have four White House officials testify during the impeachment trial is going to hurt the Republicans more than the Democrats. When the Republicans realize that problem, they will offer to repeat the process that was used in President Bill Clinton’s trial; having off site testimony videotaped and then selected portions shared with the full senate.
Having live testimony with cross examinations, would make for a huge TV audience, but given the character of those testifying, the spectacle would likely confuse rather than educate the public on Trump’s guilt. Plus, there is no telling what they will say. In the Clinton senate trial, all of those testifying had done so before, so it was known what they were going to say.
The Democrats should propose having Chief Justice Roberts make the final decision on what portions of the videotaped testimony should be shared. Although the Republicans could overrule his decision, that action will be remembered by the public long after what was said in the testimony.
The bottom line for the Democrats, and the Republicans as well, is that their behavior will be judged as much as President Trump’s. Since he will not be present, the actions of the House Prosecution Managers and the President’s Defense Team will receive the immediate attention of the public watching and the media personalities commentating afterwards.