I was one of the lawyers defending President Clinton in his 1999 Senate impeachment trial. Collegiality then was in short supply. Can it continue now?
When it came to drafting the rules for conducting former President Donald Trump’s second impeachment trial, an outbreak of collegiality apparently occurred in the Senate. All the parties, including the House managers and Trump’s legal team, came to easy agreement on the procedural rules for the trial. They got to this result by deciding not to decide until a later vote one of the most important issues of the entire process — whether witnesses will be called to testify. Senate Majority Leader Chuck Schumer and Senate Republican leader Mitch McConnell nevertheless deserve credit for reaching an agreement, and with 24 hours to spare.
I was one of the lawyers defending President Bill Clinton in his Senate impeachment trial 22 years ago, and collegiality then was in short supply.
But can it continue now? What will Trump’s trial look like?
The Senate schedule envisions a quick trial. That the sides could agree to such an abbreviated timetable suggests that neither sees benefit in a drawn-out proceeding. Trump, believing he already has the votes for acquittal, wants to get it over with. The Democrats might well conclude that rather than reliving the assault on the U.S. Capitol, precious floor time is better spent doing the country’s business, such as passing President Joe Biden’s “American Rescue Plan” on COVID-19.
Two days to convince Senate jurors
The first day, Tuesday, was spent arguing and resolving the question of whether a former president can be tried in the Senate “notwithstanding the expiration of his term in that office.” The House managers, led by Maryland Rep. Jamie Raskin, a constitutional law scholar, argued convincingly that the Constitution does not deprive the Senate of jurisdiction under these circumstances, and that in fact, the framers were explicit about that. Six Republicans joined the Senate’s 48 Democrats and two independents in agreeing that it was constitutional to hold the trial, for a final 56-44 vote to proceed.
The House managers now have two days, not to exceed 16 hours, to make their case for Trump’s conviction. They can be expected to pack their presentation with multiple mixed-media exhibits, including audio and video showing Trump’s efforts — before his supporters’ Jan. 6 attack on the Capitol as well as in the events of that day — to nullify the results of the presidential election by inciting the insurrection. The Trump team will have the same amount of time to defend the former president.
Following the presentations, the senators will have up to four hours to pose questions to the two teams and address the issue of whether to call live witnesses. It is unlikely that the Trump team will be pushing for testimony, but the House managers might well want to call two or three live witnesses — perhaps members of the Capitol Police — to testify about the Jan. 6 events, which led to the death of officer Brian Sicknick and four other people.
Adding live testimony to the schedule could add days to the trial, because the witnesses would be subject to discovery and could be deposed before testifying in the Senate. At this point, Biden’s interest in ending the trial and moving on to pursue his own agenda in Congress might well diverge from the interest of the House managers. They will see live testimony — with eyewitness reports about the violence of the crowd and the actual jeopardy to life and limb — as necessary to make a full record and to hold Trump accountable.
House managers can be expected to argue, as they did when President Clinton was tried in 1999, that however colorful the audio and video presentations, the jury must hear live firsthand testimony to fully grasp the role that then-President Trump played in causing the insurrection and then doing nothing to halt it.
It will be hard for Democratic senators to vote against the House managers, also Democrats, if they seek to include live testimony. The private debate among the Democrats is likely to be intense, but pressure to have some live testimony will be tough to resist.
After the witnesses (if any) have testified, the Senate will vote to admit the evidence, move on to final arguments and take a final vote on guilt or innocence. The trial will be completed sometime next week.
There are no settled rules as to how the Senate must conduct an impeachment trial of a president. Each time senators are confronted with this task, they must establish their own rules. Only three presidents have ever been impeached — Andrew Johnson in 1868, Bill Clinton in 1999 and Donald Trump in 2019. Each trial was different from the one that preceded it.
Chaos on the floor on Clinton Day One
I was one of the lawyers defending President Clinton in his Senate impeachment trial, and our Day One was nothing like Tuesday. When we arrived in the Senate on that first day, none of us or any of the senators had any idea what was going to happen. There was chaos on the floor.
For the month leading up to the trial, all efforts to reach an agreement had failed. An informal proposal from Sens. Slade Gorton, R-Wash., and Joe Lieberman, D-Conn., looked promising. Their plan called for a vote after only a one-week proceeding.
President Clinton and his team liked the idea of a short trial. We wanted to get to “the vote” as soon as possible, and we let it be known that the White House supported the Gorton-Lieberman proposal. We were told that the Senate was unanimous about one thing: The White House would have no say in how the trial would be conducted.
Majority Leader Trent Lott and Democratic leader Tom Daschle liked the Gorton-Lieberman plan, but the Republican House managers and Senate hard-liners were hostile to a short trial. The 13 House managers in charge of the prosecution, one of them now-Sen. Lindsey Graham, wanted a full-blown trial with 16 witnesses. A “Gang of Six” trying to come up with a compromise was disbanded the day before the trial began with nothing to show for their work.
It took a full day of secret proceedings for the Senate to agree on how the trial would begin, and it only worked out because they left the question of witnesses for later — the template for this month’s successful rules agreement. “Let’s just see if we can agree on how to get to second base. Then we can decide how to get home,” Democratic Sen. Edward Kennedy, one of the negotiators, told me in a phone call, echoing a point GOP Sen. Rick Santorum had made the night before.
So kudos to Schumer and McConnell. Perhaps because we have had much more experience with presidential impeachments since 1999, they achieved clarity on how the Trump trial will unfold. What’s more, they established the rules of the road with little ruckus or rancor.
Actually trying the case could be a very different story.
Gregory B. Craig led President Bill Clinton’s legal defense in his 1999 impeachment trial and was White House counsel under President Barack Obama