Wednesday, January 08, 2020

Who is in Charge Here?

David Super

     Senate Majority Leader Mitch McConnell announced today that he has sufficient votes to begin the impeachment trial of President Trump without agreeing to Democrats’ demands that he promise that the House may call witnesses.  This has caused considerable confusion about just how much power he really has to control the process, assuming he has at least fifty-one senators ready to support him. 

     As I have explained previously here and elsewhere, media reports and the apparent understandings of some Members of Congress attribute to him much more power over the impeachment process than he actually has.  Because the Senate has standing rules governing impeachment trials, many of the questions being debated by Democrats and Republicans already have been answered.  Those that remain open, such as whether the managers the House appoints may subpoena witnesses, will go in the first instance to Chief Justice Roberts, not Senator McConnell.  Although a majority of the Senate could overrule the Chief Justice, strong reasons exist to believe that they will not.

     All this radically differs from the all-powerful image that many people have of Senator McConnell.  It therefore seems useful to understand the source, extent, and limits of that power, with particular attention to how it could shape a trial of the House’s articles of impeachment. 

The Majority Leader’s Agenda-Setting Power

     Through the Vice President, the president pro tem, and the Republican senators designated to preside, Senator McConnell can ensure that he is recognized to propose whatever business he wants for the Senate’s consideration.  Commonly, but not universally, the majority leader exercises this prerogative by offering a “motion to proceed” to whatever bill or resolution he desires. 

     Unless a situation is covered by one of a few special rules or statutes barring or limiting debate, other senators then can prevent the Senate from voting on the motion to proceed with a filibuster (euphemistically “extended debate”).  To cut off debate on the motion to proceed and bring it to a vote, Rule XXII.2 typically requires Sen. McConnell to marshal sixty votes.  If the underlying resolution proposes to change the Senate’s standing rules, that rule requires the votes of two-thirds of the senators present and voting to cut off debate. 

     Thus, Senator McConnell could propose to amend the Senate’s impeachment rules, but even getting a vote on such a proposal would require the votes of fourteen Democrats, which seems improbable absent a deal.  Slightly more plausibly, he could propose a special order of the kind that governed President Clinton’s impeachment trial in 1999.  Because no statute or rule limits debate on such a proposed order, Senate Democrats could filibuster such an effort and would prevail unless Senator McConnell could somehow lure away seven of their number.  If Senator McConnell takes this route, it is for the purpose of forcing Senate Democrats to filibuster so that he can portray them, rather than Republicans, as obstructing a trial. 

     Senator McConnell could try to increase pressure on Senate Democrats by having the same resolution establish his preferred rules for the trial and set the day for the trial to begin – taking advantage of some looseness in the Senate rules about the starting date for impeachment trials.  Ultimately, however, Senate Democrats likely could put vulnerable Republicans in an awkward position by pressing for a “clean” resolution setting the trial date or seeking to amend it to allow a more complete exploration of the facts.

The Majority Leader’s Ability to Restrict Amendments

     In almost any situation where the motion to proceed is agreed to, the majority leader has the further ability to prevent senators from offering unwelcome amendments of the underlying bill or resolution by repeatedly seeking recognition to offer meaningless amendments himself up to the maximum limit of pending amendments allowed under Senate rules.  This process, known as “filling the tree”, often sets in motion a negotiation between the majority leader and other senators over what amendments will be allowed.  The majority leader can prevent other senators from amending the bill or resolution for as long as he likes, but for whatever period he keeps the “tree” filled the legislation cannot move forward. 

     The common result is a special order that the Senate adopts by unanimous consent establishing a list of permissible amendments, capping debate on each of them and on the underlying legislation, and setting a timetable for a final vote on the merits.  These “unanimous consent” agreements sometimes come a bit at a time, with a few amendments for each side allowed to move forward at a time until both sides have a clear enough idea of how the legislation is shaping up to settle on a final set of procedures for the legislation or to decide to kill the legislation (by withdrawing it from the floor, in the case of the majority leader, or by committing to a filibuster, in the case of the minority). 

     If Senate Democrats allow Senator McConnell to bring a resolution to the floor setting procedures for an impeachment trial, they might seek to amend it to compel the issuance of subpoenas for witnesses or to postpone the opportunity for the President to move to dismiss the articles of impeachment until after the House has presented its case in chief.  If these amendments were well-crafted, some Republicans might find them politically difficult to vote down.  Senator McConnell could block those amendments by “filling the tree”, but that would put him in the position of stalling his own proposed resolution.  The optics of that could be difficult. 

     It therefore seems that, even if he has fifty-one votes, Senator McConnell would have considerable difficulty imposing his preferred rules for an impeachment trial prior to the trial beginning.  To be sure, if the Democrats overplay their hand they could put themselves in a position where they have to acquiesce in much of what Senator McConnell wants.  But forcing through his preferred rules seems unlikely unless he can find additional leverage.  I suspect Senator McConnell has something else in mind. 

Starting a Trial then Curtailing It

     Once the Senate begins to sit as a court of impeachment, Chief Justice Roberts presides and the rules for impeachment trials apply.  At that point, Senator McConnell’s usual means of controlling the Senate’s agenda disappear.  He becomes just another senator – albeit an extremely savvy one and one who has proven adept at keeping his caucus in line – and has no preferential right to be recognized.  The chief antagonists will be the House’s impeachment managers and the President’s lawyers, not him and Senate Minority Leader Schumer. 

     Once the trial begins, Senator McConnell or another Republican senator could move to dismiss the articles of impeachment or move to foreclose the calling of witnesses.  That motion, in the first instance, would be directed at Chief Justice Roberts, whom the Constitution makes the presiding officer for impeachment trials of the President.  Rule XVI provides that “[a]ll motions, objections, requests, or applications whether relating to the procedure of the Senate or relating immediately to the trial (including questions with respect to admission of evidence or other questions arising during the trial) made by the parties or their counsel shall be addressed to the Presiding Officer only”.  Thus, Senator McConnell will no longer be the one making motions nor the one receiving them. 

     Under Rule V, “[t]he Presiding Officer shall have power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.”  In other words, a motion to dismiss the articles of impeachment without trial or to deny the House’s managers the opportunity to call witnesses would be directed to the Chief Justice rather than going to a vote of the Senate. 

     Rule VII goes on to provide that “the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate”.  Surely whether the various officials the House seeks to subpoena may be compelled to testify is a question relating to evidence.  Trial judges in civil and criminal trials rule on such motions routinely.  Filibusters on these questions would be impossible as Rule XXI allows the House and the President one hour each of oral argument on motions. 

     Senator McConnell apparently is banking on a further provision of Rule VII, which allows any senator to request a vote to overturn a decision of the Chief Justice.  In theory, the President’s lawyers could move to preclude the House’s managers from calling witnesses or move to block any subpoenas the House sought to have issued, with Senator McConnell or another Republican senator seeking a vote of the full Senate to overturn an unfavorable ruling from the Chief Justice.  In practice, persuading the voters that Senate Republicans were right to overrule a very conservative Chief Justice nominated by a Republican president and confirmed by a Republican Senate would be no small trick.  Avoiding the loss of more than two Republican senators – with several looking at difficult elections and several other respected Republicans retiring – would also be challenging.  I have trouble seeing the instinctively cautious Senator McConnell gambling that he could do so.  (If he did try, Democrats could not filibuster:  Rule VII requires the Senate to vote on such appeals without debate.) 

     Rule VII also allows the Chief Justice to put any question to a vote of the Senate in the first instance rather than ruling on it himself.  On issues within a presiding officer’s competence, for the Chief Justice to decline to rule would be widely seen as a partisan act favoring the Republicans.  Given the Chief Justice’s tireless efforts to prevent the Court from being perceived as partisan, he seems unlikely to take this option.

The Limited Value of the Clinton Analogy

     It should be noted that comparisons to President Clinton’s impeachment trial in 1999 tell us little.  Then, few senators of either party had much appetite for the trial and everyone knew exactly what President Clinton had done.  Senate Republicans needed to do just enough to avoid being accused of undermining House Republicans.  In this setting, Senate Majority Leader Trent Lott and Senate Minority Leader Tom Daschle relatively easily negotiated a set of special procedures.

     Here, by all indications, Senate Democrats really do want this trial to take place and the two parties hotly disagree about what the President did.  Senate Republicans may have a difficult time maintaining their position that the House has proven nothing if they prevent it from doing so. 

     In sum, even if Senator McConnell has fifty-one senators committed to supporting him on procedural questions relating to the impeachment trial, he has no easy, safe route to impose his will on those questions.  He can force Democratic senators to filibuster the start of the trial on his terms – something Speaker Pelosi is effectively doing already – or he can seek to hold his caucus together on a vote to overrule Chief Justice Roberts once the trial begins.  Ultimately, his claim of fifty-one votes, even if true, changes very little. 


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