(Bloomberg) — President Donald Trump has openly cheered for the impeachment process to move to the friendlier confines of the GOP-led Senate, but there may be some surprises in store for him on the way to a likely acquittal.
Majority Leader Mitch McConnell has said it’s “inconceivable” at this point that the Senate will convict Trump on any articles of impeachment sent over from the House. It would take at least 20 Republican votes — along with all Democrats — to form the two-thirds majority required to remove Trump, and at present there are exactly zero.
McConnell and Trump, though, do have a different math problem. Call it the Rule of Four: it would take only four Republican defections to give Democrats an advantage in setting the rules for who testifies, how long the process goes on and other procedural steps that will set the tone and tempo for the trial.
That has potential to add drama to the proceedings, along with the prospect of court rulings, new witnesses or evidence that could alter the trajectory of the impeachment process.
Here are five wild cards as the likely Senate impeachment trial takes shape:
Chief Justice John Roberts Presiding
The Constitution calls for the chief justice of the U.S. to preside over a Senate impeachment trial, so John Roberts — a man Trump has sharply criticized in the past — will be in position to play a potentially pivotal role.
Precedent is thin — only two other U.S. presidents have faced such a trial — and the Senate doesn’t have the standard rules of evidence that a case heard in a regular court would have. While that gives Roberts latitude in ruling on such matters, his predecessor, the late William Rehnquist, used a light touch when he presided at former President Bill Clinton’s impeachment trial.
Rehnquist ruled early on that, “The Senate is not simply a jury, it is a court in this case.” He also praised the Senate’s leaders for agreeing on procedural rules despite their differences on the substance of the trial, calling that “the hallmark of any great deliberative body.”
Any senator can subject a ruling by Roberts to a Senate vote, where the Republican majority would have the upper hand. But they may be reluctant to take the political risk of overturning the chief justice to protect Trump, given the certainty Democrats would accuse them of enabling a cover-up.
The Witnesses Who Haven’t Been Heard
House impeachment managers as well as the president’s legal team will face choices on who to try to call to testify — provided the Senate doesn’t shut down the testimony.
Some of Trump’s most vocal supporters among GOP senators have already talked about possibly calling former Vice President Joe Biden or his son Hunter Biden, the still-anonymous whistle-blower who first raised alarms about Trump’s call with Ukraine’s president, or even House Intelligence Chairman Adam Schiff, who led the initial House inquiry.
It’s not clear that 51 senators would back subpoenas for those witnesses.
Republicans likewise could feel pressure to call witnesses who refused to testify in the House — Secretary of State Michael Pompeo; Acting White House Chief of Staff Mick Mulvaney; former National Security Advisor John Bolton; and Rudy Giuliani, Trump’s personal lawyer.
The administration argued they shouldn’t have to testify in what they considered an unfair House process, but it would be harder for Trump to argue that the process in a GOP-controlled Senate isn’t fair.
Yet there may be few, if any, witnesses appearing on the Senate floor. At Clinton’s trial, senators decided they only needed to question three witnesses whose testimony was presented as excerpted videotaped depositions.
The Potential for New Evidence to Emerge
Trump’s refusal to let administration officials testify or turn over documents to the House inquiry may form the basis for an article of impeachment on obstruction.
While it’s highly unlikely at this point that Trump would get convicted by the Senate on any charge, the stonewalling by the administration raises the risk that a new witness or document could emerge close to the beginning of a Senate trial, through a leak or even a court order.
In the Watergate investigation of Richard Nixon, it was only after the Supreme Court ordered the White House to turn over withheld tapes that Republicans went to the president and told him it was time to go. Multiple efforts by House investigators to get evidence on Trump are already moving through the courts, though Democrats have said they don’t plan to wait for a Supreme Court ruling before moving forward on impeachment.
Potential Divisions Among Republicans
While no Republican has publicly supported Trump’s impeachment so far, numerous GOP senators have endorsed letting the trial play out. Several Republicans have insisted they are keeping an open mind about the outcome, despite a weeks-long effort by Trump to woo them in meetings at the White House. That could have consequences when it comes to setting the parameters for the trial.
The Senate’s formal rules governing a trial are sparse, handing House impeachment managers and the president rights that left undefined could create a process with almost no limits. Without an agreement, the Senate can’t consider any legislation or confirm nominees during the entire trial — and will stay in session six days a week. That gives both parties an incentive to agree on some basic structure for the proceeding.
If they’re united, Republicans could go it alone because they can pass a resolution framing the impeachment trial with just 51 votes. But if the 1999 Clinton impeachment trial is any guide, Republicans could agree with Democrats on the ground rules and leave more contentious questions — like who would be allowed to testify — to straight party-line votes later.
The bipartisan rules for Clinton gave the House impeachment managers and the president’s representative 24 hours each to present their arguments, and senators 16 hours to question both sides. It also addressed other matters, like how a motion to dismiss might be handled and a process for dealing with witnesses.
A second, partisan resolution was heatedly contentious, passing 54-44 nearly three weeks later with backing only from Republicans, who then had the majority in the chamber as they do now. It required subpoenas for depositions from just three witnesses, including former White House intern Monica Lewinsky. It also locked in a mid-February date for votes on whether to convict or acquit.
Both McConnell and Senate Democratic leader Chuck Schumer have indicated they will discuss a plan for the trial process once the House votes on any impeachment articles, but they’ve said little more.
A Quick Trial or a Long Process
Barring an unforeseen shock that shakes support among Republicans, the Senate appears destined to conduct an expedient trial with the likely outcome being a near-party line acquittal.
The Senate could debate a motion to dismiss the charges at some point, and Trump has a roster of close allies in the chamber including Senator Lindsey Graham of South Carolina and Senator Ted Cruz of Texas who could offer it. Simply debating and defeating such a motion during the Clinton impeachment trial consumed three days.
The entire Clinton trial took about a month and ended with his acquittal.
Democrats have incentives not to prolong the trial. Six Senate Democrats are running for the party’s presidential nomination. Every day spent in the Senate chamber for a trial is a day off the campaign trail, with the first contests taking place over the first three weeks of February.
Although they may be tempted to keep the Democratic presidential candidates tied down, Republicans aren’t likely to drag things out because they’ll want to minimize any political damage to the president.
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