Impeachment Trial Analysis, Day 1: Former Prosecutor on the McConnell Two-Step

As President Donald Trump’s impeachment trial unfolds, Courthouse News will be reaching out at the close of each day to prominent attorneys, scholars and other experts in the legal community for analysis on the historic proceedings. Joining us for the first day of substantive proceedings is Jennifer Rodgers, a former federal prosecutor from the Southern District of New York.

 

Senate Majority Leader Mitch McConnell, R-Ky., arrives at the Capitol, in Washington, Wednesday, Jan. 15, 2020. (AP Photo/Julio Cortez)

WASHINGTON (CN) – Before senators had cast a single vote on a resolution to set the rules of President Donald Trump’s impeachment trial, the Republican caucus surprised many on Tuesday morning by backing off from rules that might not have recognized any of the evidence gathered by the House of Representatives.

For attorney Jennifer Rodgers, a former federal prosecutor from the Southern District of New York, the turnabout smacked of a political gambit on the part of Senate Majority Leader Mitch McConnell.

“I think he kind of planned on doing this, coming out with this truly ridiculous set of rules and then backing off a couple of them to show what a good, reasonable guy he is – and assure the more moderate members of his caucus that he’s willing to negotiate and let the House managers be heard,” Rodgers said.

Follow her analysis on McConnell’s two-step on the rules and her reviews of the performances by House impeachment managers and Trump’s legal team below – along with insights by the seasoned trial attorney on the importance of strong visual aids when presenting a case to a jury.

 

Q: What do you believe were the most important developments in today’s proceedings?

A: So, I think the most important things are McConnell’s backing off of the most extreme parts of his rules, trying to cram everything into two days and not making the House record part of the Senate trial record – just because that’s the biggest change from this morning in terms of what is actually going to happen. I thought it was all kind of pre-orchestrated. I think he kind of planned on doing this, coming out with this truly ridiculous set of rules and then backing off a couple of them to show what a good, reasonable guy he is – and assure the more moderate members of his caucus that he’s willing to negotiate and let the House managers be heard. So, I think he’s trying to score some points there and that was all probably part of the plan. But as far as the impact on what’s going to happen, that’s the biggest development of the day—to make those two changes to the rules.

 

Q: How does that [strategy of backing off certain rules] help the people in the caucus that [McConnell] needs to convince to do things his way?

A: I think you just want to show yourself to be reasonable and not rigid. And he says something, and the Dems start screaming and say, “That’s not fair.” And then he says, “OK, you know what? I’ve heard you. I’ve listened to you. We all want a fair process here. So, I’m going to give a little and adjust it like so at your request.” And that allows him and everyone else in his caucus to say, “Hey, you know, he’s not being unreasonable. He’s actually listening to people and changing things at their request. So, it’s not this lopsided, one-sided, everything’s already-been-decided and we’re not to go allow a fair trial here that everyone is saying. We’re actually being reasonable about it.”

It gives them a little bit of evidence to back up that claim, and I think that that helps those moderates who have to go back to their districts and contend with constituencies that are not as red as some of the others to say, “Hey, we did this fairly. The Dems got their shot. The House managers got a fair trial in all of this. We conceded on some of the rules, and they put their case forward – and it happened as it did.” But it gives them that little bit of argument that they could use, especially the ones that are up for reelection this fall. It gives a little bit for them to work with there.

 

Q: This is the first time we’ve seen some of the people on the president’s team speak before the Senate. How did everyone do on the president’s team? How did the House impeachment managers do? How would you grade them?

Former Southern District of New York prosecutor Jennifer Rodgers.

A: So, I thought the House managers did very, very well. I saw Schiff of course, Val Demings, Zoe Lofgren and Jason Crow. They have a coherent message. They are very, very well prepared. They have visual aids with the arguments on them. Anyone who’s tried a case to a jury knows visual aids are great. They love them. They have clips. They have witness testimony clips. They have visual aids with documents on them, some of the documents that have been released. They’re really well prepared and their message across all of these presentations – it sounds the same. It strikes the same tone. It’s clear that they all worked very closely together to put together these presentations in a way that’s very seamless. I don’t know if they’re all former prosecutors. [Each of the seven House impeachment managers is an attorney, save Demings, who is a former law enforcement officer.] So, they’re comfortable in this spotlight. They’re kind of comfortable in the litigation aspect of presenting a case like this. And of course, they have the evidence to back it up.

The president’s team is more uneven. They have a harder row to hoe because they don’t really have any compelling legal arguments to make. So, they’re trying to muddy up the waters and making ridiculous claims, sometimes about things that didn’t even happen – like when [Trump’s attorney] Pat Cipollone claimed that Republicans were not let into the depositions. And this whole notion of these secret hearings and lack of due process: No one with a brain who knows anything about this that followed it at all are buying those arguments.

So what they’re doing is not really for the senators in front of them. It’s for the American people who are following along much less closely and are willing to buy the soundbites that are going to appear on Fox News, or Breitbart, or wherever they get their news stories later tonight or tomorrow or so on. So, I think they’re doing not such a good job if you are a knowledgeable, legal-minded consumer, but that’s not really the point. And, for the folks that they’re trying to please, particularly the president, they’re probably doing an okay job because they are continuing to repeat the talking points that they’ve been repeating all along.

 

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