Opening arguments must be delivered by just one House manager and one of the president’s attorneys, while closings can be a two-person show, unless otherwise decided upon by the Senate.
As lead impeachment manager, Schiff — endlessly mocked by President Trump as “Shifty-Schiff,” a nickname criticized for its anti-Semitic overtones — will draw on experience as a prosecutor in the most recent impeachment trial of U.S. District Judge G. Thomas Porteous. In December 2010, the Senate found the Louisiana judge guilty on all four impeachment articles and voted 94-2 to forever disqualify Porteous from “holding an office of honor, trust or profit,” a move taken by senators just eight times in U.S. history at the close of judicial impeachments.
David Seide served as a federal prosecutor alongside Schiff in the U.S. Attorney’s Office in Los Angeles. A former attorney with the State Department Inspector General’s Office, he said in an interview with Courthouse News in November that the California Democrat is well-equipped for impeachment after years of prosecuting in the well of a courtroom.
“As part of the experience of being in court a lot you develop a sense of intellectual nimbleness so you can deal in real time,” Seide said.
The 1986 rules allow the Senate to take up a special order to limit closing arguments to four hours, as in the impeachment trials of two federal judges in the 1930s.
In other trials House managers and the president’s attorneys were given free rein to submit arguments for the record or deliver them orally from the Senate floor.
The Senate opted for that open format in Johnson’s trial and the closing argument in 1868 ran from April 22 to May 6.
But now in an election year – with four senators pulled from the campaign trail to sit in judgment for Trump – Villanova University professor John Johannes said Democrats will not want to drag out the trial.
“The longer they push this off,” he added, “the more and more it looks like a pure political coup as opposed to a constitutional issue.”
The document dump of handwritten notes and text messages from Parnas proved this week there is more to the Ukraine scandal than the House investigation unearthed. Documents tell the whole story, Democrats have said for months, as the White House blocked the release of records as well as witness testimony.
Bowman said that without testimony from key witnesses like Bolton and Secretary of State Mike Pompeo, the record will be incomplete.
“It will be at least possible for the Republicans to argue that there are gaps in proof...to which part of the response is, ‘Yeah if there are any gaps in proof it’s because the president is refusing to permit his people to testify. Therefore we are entitled to impeach him on that ground alone,’” Bowman, the University of Missouri professor, argued.
Republicans have demanded testimony from Schiff and the Bidens, specifically from Hunter Biden on how he came to sit on the board of the Ukrainian gas company, Burisma Holdings.
Bowman said the issue may set off “saber rattling” in the Senate but in the end he does not expect the vice president or his son will be called as witnesses.
The impeachment expert also said Republicans would falter attempting to cross-examine witnesses on Ukraine, and not Russia, interfering in the 2016 presidential election, as they did in the House hearings.
“Proving it gets your throat ripped out,” Bowman said.
The hyper partisan politics in today’s Washington, he added, means “a lot of the factors that made it possible to essentially drive Nixon from office as a result of misconduct…just don’t exist anymore.”
Both Bowman and Johannes drew comparisons to Democrats jockeying today to present the American people with a clear understanding of how Trump violated his oath of office to the effort to push Johnson from office in 1868.
Seeking to end Southern Reconstruction after the Civil War, Johnson was widely unpopular. Congress laid a trap for the president, said Johannes, when it passed the Tenure of Office Act, restricting the president’s ability to dismiss certain officeholders without Senate approval and making it a high crime and misdemeanor to violate the new law.
When Johnson fired his secretary of war, the House voted to impeach him three days later, followed by a three-month trial that failed by one vote to reach the two-thirds majority to trigger removal from office.
“That was purely a crass political thing,” Johannes said. “Now the Republicans say that that is what’s going on right now. But it clearly goes beyond just raw politics.”
Closed-Door Deliberations
Like a traditional jury, as the trial nears to an end, the Senate will disappear behind closed doors to deliberate.
A “sunshine” proposal to open the secret debate to remove Clinton from office for the public to view failed with a 59-41 vote — falling short of the two-thirds majority required to change the impeachment rules — but could be raised again in Trump’s trial.
Republicans came out with roaring tempers and slinging mud in the House impeachment hearings. But as the Senate picks up the polarizing debate, Johannes said lawmakers are sure to exhibit more decorum and proper procedure than the neighboring chamber.
“That’s inherent in the institution of the Senate,” he said. “It’s almost always the case.”
Senator Lindsey Graham, R-S.C., was one of 13 House managers in the Clinton trial. Alongside him were two current members of the House Judiciary Committee, Republicans Steve Chabot and James Sensenbrenner, who both voted against impeaching Trump.
Trump’s loudest GOP defender, Graham argued back in the Clinton impeachment that the constitutional remedy is about “cleansing” and “restoring honor and integrity to the office.”
Graham said, now famously, back in 1999: “You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role.”
This time around, however, the top Republican said the House probe was a “bunch of garbage,” and that he knows exactly where he is going to land when the time comes to vote.
“There was no quid pro quo, no bribery, they got the money, they got the meeting, they didn’t investigate the Bidens,” Graham said in an interview last month. “The way they’ve conducted the trial is a danger to the presidency itself.”
But Democrats argue the stakes are high for Americans on both sides of the aisle. Judiciary Chairman Nadler said during the House investigation that the integrity of the 2020 presidential election is at stake.
The warning echoed words from North Carolina Democrat Samuel Ervin, chairman of the Senate committee that investigated Watergate back in 1973.
Before Nixon stepped down to avoid a House vote on impeachment, Ervin said if the claim that the president coordinated the Watergate break-in was true, the black-masked burglars effectively broke into the home of every U.S. citizen.
“And if these allegations prove to be true,” Ervin said, “what they were seeking to steal was not the jewels, money or other property of American citizens, but something much more valuable, their most precious heritage – the right to vote in a free election.”
Jack Rodgers contributed to this report.
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