WASHINGTON
Democrats have won a historic victory with the impeachment of President Donald Trump. But the moment they send charges of high crimes and misdemeanors to the Senate is the moment they will lose control over his fate.
With articles of impeachment soon headed to the Republican-led chamber for a trial of Trump, Democrats are debating how to proceed in a way that maximizes their leverage over a president firmly supported by Senate loyalists already prepared to acquit him.
Democratic lawmakers are weighing whether to withhold the transmission of impeachment articles to the Senate until a bipartisan agreement is reached that would govern trial procedure.
But the more likely scenario is expected to unfold early next year, at the Senate trial itself, when Democrats would pin their hopes on an implausible savior: Supreme Court Chief Justice John Roberts.
House Democrats will send impeachment managers to act as prosecutors in the upcoming trial, where they plan on challenging Roberts to take an active role as he presides over the proceedings.
Absent a bipartisan breakthrough, Roberts may be their last, best chance of securing additional evidence from key Trump administration officials who were blocked from testifying in the House — top aides who witnessed the president orchestrate an alleged aid-for-favors exchange with the newly elected government in Ukraine.
“I think he’s the only hope we’ve got,” Rep. Steve Cohen of Tennessee, a Democratic member of the House Judiciary Committee, said of Roberts.
Republicans expect Roberts will take a passive role, as his predecessor did in the 1999 Senate impeachment trial of former President Bill Clinton, deferring to legislators on the most consequential questions before them — a model that is likely to benefit the White House.
But they are not taking chances, either, leaning heavily on Senate Majority Leader Mitch McConnell as their first line of defense against any procedural rulings that could harm the president.
“There’s not a Senate majority leader out there that will turn over anything of significance to the discretion of the chief justice,” one White House official told McClatchy.
The House voted on Wednesday to impeach Trump for abuse of power and obstruction of Congress. He is accused of withholding $391 million in military aid to Ukraine in exchange for the announcement of investigations into his political rival, former Vice President Joe Biden, and Biden’s son, Hunter.
It is only the third time in American history that the House has approved articles of impeachment against a president. After an impeachment, the Constitution requires a Senate trial to determine whether the president should be removed from office.
In the Senate trial set to begin early in the new year, Democrats are especially eager to hear from acting White House Chief of Staff Mick Mulvaney and former National Security Adviser John Bolton.
If Democrats make a procedural motion on the Senate floor to compel these witnesses to appear — as Senate Minority Leader Chuck Schumer, D-N.Y., said he would — it could be up to Roberts to decide the issue.
“I would hope that Chief Justice Roberts can exert some pressure on the Senate majority leader, to say to him that everything Americans hold dear in terms of due process, in terms of the constitutional requirements for the Senate, to be impartial and to have a fair trial,” said Rep. Pramila Jayapal, D-Wash., who is a member of the House Judiciary Committee.
McConnell, R-Ky., has already signaled his disinterest in hearing from Bolton and Mulvaney. If he and fellow Republicans don’t like Roberts’ rulings, they could vote to overrule the chief justice by a simple majority.
Some House Democrats are counting on this scenario, which would force GOP lawmakers to publicly defy the chief justice.
“Having the chief justice say that [the witnesses] are relevant will put senators in a position where they’d have to vote against the rules that they were relevant,” said Rep. Eric Swalwell of California, a Democrat serving on the House Intelligence and Judiciary committees,
The notion that Roberts will rule in their favor is an improbable expectation that reflects the political weaknesses Democrats face entering a Senate trial, where Republicans hold the majority and are operating in concert with the president.
Senate Democrats may be more realistic than their House counterparts about the likelihood of Roberts intervening in lawmaker disputes over witness testimony.
“We know that the mechanism for decision-making in the midst of the trial is a majority vote for the Senate, and I would assume that he would give us our constitutional opportunity to debate things, or at least to discuss them and to reach that vote,” said Senate Democratic Whip Dick Durbin of Illinois. “Beyond that, I don’t know that there’s much he has power over.”
Some Democrats said they might have more success in compelling witness testimony if they can get Republicans to vote with them.
Republican converts could come from a coalition of Trump allies who want exculpatory witnesses for the president, paired with moderates who are sympathetic to Democratic demands.
“The simple answer is yes, I hope the Chief Justice will take a more proactive role. The tradition has been that he’s more passive,” said Sen. Richard Blumenthal, D-Conn., who is leading a lawsuit alleging that Trump violated the emoluments clause.
“I think our best hope is actually convincing a number of our Republican colleagues that the only way to achieve a fair and full proceeding is to give the American people the witnesses and documents they deserve to see and hear,” Blumenthal said.
‘TOTALLY DIFFERENT’ FROM ‘99
Eric Ueland, the White House director of legislative affairs, told McClatchy on Tuesday that the president’s team had “examined very closely” the “historic precedent” set by former Chief Justice William Rehnquist in the 1999 impeachment trial and by former Chief Justice Salmon Chase in the proceedings against President Andrew Johnson in 1868.
“I would expect … we will see Chief Justice Roberts in alignment with many of those precedents,” Ueland said.
Two White House officials said the administration expects Roberts will take a back seat as senators debate rules and procedure amongst themselves in the same model as Rehnquist, who later said of his own involvement, “I did nothing in particular, and I did it very well.”
“Obviously we’re not going to hear anything from Roberts ahead of time, so you have to sort of speculate how he’d handle these items,” said one White House official. “Maybe he’ll make some type of decision on low-hanging fruit, but anything that will be substantive — the Democrats demand that this White House official testify, the Republicans ask the Bidens to testify — I’d suspect he would submit the question to a vote.”
The president is no fan of the chief justice, in light of his 2012 vote to preserve the Affordable Care Act and his more recent criticism of Trump’s political attacks on judges.
The Constitution describes the top justice’s role in vague terms, simply stating that, “when the President of the United States is tried, the Chief Justice shall preside.”
Newt Gingrich, who served as speaker of the House during Clinton’s impeachment proceedings, speculated this week that Roberts would refrain from taking an activist approach. But if he were to weigh in, Gingrich said, the chief justice could just as easily rule to allow witnesses that Trump wants along with those requested by Democrats.
“I think to the degree that Roberts decides to be more aggressive, he’ll be more aggressive both ways,” Gingrich, who visited the White House earlier this month, told McClatchy. “He won’t just be one-sided.”
The president has suggested he’d like to see a trial that features Joe and Hunter Biden; the anonymous whistleblower who first reported an incriminating phone call between Trump and Ukrainian President Volodymyr Zelensky; and House Intelligence Committee Chairman Adam Schiff of California.
Generally, the White House expects McConnell will serve as the primary bulwark against Democratic efforts to draw up Senate rules establishing parameters for an impeachment trial — rules that could either guarantee witness testimony or empower Roberts with broad discretion to compel it.
There is also an expectation that McConnell will make an institutionalist argument in favor of adopting procedures nearly identical to those used in 1999.
Those previous procedures were decided over the course of two votes: one that set an overall framework for the duration of the trial prior to its start, and another that occurred during the course of the trial on rules governing witness testimony.
The 1999 trial did not allow live witness testimony. Gingrich said the legislative body might want to consider rewriting those rules to allow witnesses to testify. “If you go back and look at the trial in ‘99, I think our guys thought if anything, they were too cautious,” he said.
“I think this is such a totally different mess,” he said of the current situation with Trump, adding, “there’s no traditional way to think about it.”
Democrats are making a similar argument — that there is no way to compare the events of the late 1990s with those of today — with different goals.
In 1999, senators did not permit live witnesses, partially out of concerns the testimony would delve into explicit details of Clinton’s extramarital affair that would be broadcast on television.
“It’s a totally different situation,” Schumer said at a press conference earlier this week, comparing Clinton’s trial with the trial at hand. “There is no analogy.”
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