McConnell on Impeachment Procedures: The Senate’s Duty Is To Conduct a Trial, Not Re-Do House Democrats’ Homework For Them
‘Instead of the tried-and-true 1999 model — start the trial and then see how senators wish to proceed — the Democratic Leader wants to write completely new rules for President Trump… The Senate is meant to act as judge and jury. To hear a trial. Not to re-run the entire fact-finding investigation because angry partisans rushed sloppily through it.’
WASHINGTON, D.C. – U.S. Senate Majority Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate floor regarding impeachment:
‘All signs seem to suggest that later this week, House Democrats are finally going to do what many of them have been foreshadowing for three years now and impeach President Trump.
‘It appears that the most rushed, least thorough, and most unfair impeachment inquiry in modern history is about to wind down after just 12 weeks and that its slapdash work product will be dumped on the Senate.
‘I’ll have much more to say to our colleagues and to the American people if and when the House does move ahead. But as we speak today, House Democrats still have the opportunity to do the right thing for the country and avoid setting this toxic new precedent.
‘The House can still turn back from the cliff and not deploy this constitutional remedy of last resort to deliver a pre-determined partisan outcome.
‘This morning, I just want to speak to one very specific part of this.
‘Over the weekend, the Democratic Leader decided to short-circuit the customary and collegial process for laying basic groundwork in advance of a potential impeachment trial.
‘The preferable path would have been an in-person conversation, which nonetheless I still hope to pursue.
‘Instead, he chose to begin by writing me an 11-paragraph letter on Sunday evening, deliver it by way of the news media, and begin a cable television campaign a few hours later.
‘The Democratic Leader’s letter is an interesting document from the very beginning.
‘For example, in the second of its eleven paragraphs, our colleague literally misquotes the Constitution. That error actually aligns with our colleague’s apparent confusion about some of the deeper questions.
‘I’ll come back to that in a moment.
‘At first, our colleague’s letter appears to request that a potential impeachment trial adopt similar procedures to the Clinton impeachment trial in 1999. Now, I happen to think that’s a good idea. The basic procedural framework of the Clinton impeachment trial served the Senate and the nation well in my view.
‘But the problem is that while the Democratic Leader notionally says that he wants a potential 2020 trial to look like 1999, he goes on to demand things that would break with the 1999 model.
‘In President Clinton’s trial, we handled procedural issues in two separate Senate resolutions that passed at different times.
The first resolution passed unanimously before the trial. It sketched out basic things like scheduling, opening arguments, and the timing of a motion to dismiss.
‘Other, more detailed questions about the middle and the end of the trial, including whether any witnesses would be called, were reserved for a second resolution that was passed in the middle of the trial itself.
‘As a matter of fact, we passed it only after a number of Democrats including Senator Schumer himself voted to dismiss the case. They got a motion to dismiss before the Senate had even decided whether to depose a single witness.
‘Instead of the tried-and-true 1999 model — start the trial and then see how senators wish to proceed — the Democratic Leader wants to write completely new rules for President Trump.
‘He wants one single resolution upfront instead of two, or however many are needed. He wants to guarantee upfront that the Senate hear from very specific witnesses, instead of letting the body evaluate the witness issue after opening arguments and Senators’ questions, like in 1999.
‘And – very tellingly – our colleague from New York completely omits any motions to dismiss the case, like the one he was happy to vote for himself as a new senator back in 1999.
‘Almost exactly 20 years ago today, prior to the Senate trial, Senator Schumer said this on television – direct quote:
“Certainly any senator, according to the rules, could move to dismiss, which is done… Every day, in criminal and civil courts throughout America, motions to dismiss are made. And if a majority vote for that motion to dismiss, the procedure could be truncated.”
‘That was Senator Schumer in January 1999. But now, the same process that Senator Schumer thought was good enough for President Clinton, he doesn’t want to afford President Trump. Go figure.
‘Look, most people understand what the Democratic Leader is really after: He is simply trying to lock in live witnesses. That is a strange request at this juncture for a couple of reasons.
‘For one thing, the 1999 version of Senator Schumer vocally opposed having witnesses — even when the question was raised after hours of opening arguments from the lawyers, hours of questions from Senators, and a failed motion to dismiss.
‘How can he have pre-judged that he favors live witnesses so strongly this time before the Senate even has articles in hand?
‘Moreover, presumably it will be the House prosecutors’ job to ask for the witnesses they feel they need to make their case.
‘Why does the Democratic Leader here in the Senate want to pre-determine the House impeachment managers’ witness request for them before the House has even impeached the president?
‘Might he be coordinating on these questions with people outside the Senate?
‘Here’s one possible explanation. Maybe the House’s public proceedings have left the Democratic Leader with the same impression they’ve left on many of us:
‘That from everything we can tell, House Democrats’ slapdash impeachment inquiry has failed to come anywhere near the bar for impeaching a duly-elected president, let alone removing him for the first time in American history.
‘And so those who have been eagerly hoping for impeachment are starting to scramble.
‘Chairman Adam Schiff and House Democrats actively decided not to go to court and pursue potentially useful witnesses because they didn’t want to wait for due process. Indeed, they threatened to impeach the President if they had to go to court at all. That intentional, political decision is the reason why the House is poised to send the Senate the thinnest, least thorough presidential impeachment in our nation’s history.
‘By any ordinary legal standard, what House Democrats have assembled appears to be woefully inadequate to prove what they want to allege. So now the Senate Democratic Leader would apparently like our chamber to do House Democrats’ homework for them.
‘He wants to volunteer the Senate’s time and energy on a fishing expedition to see whether his own ideas could make Chairman Schiff’s sloppy work more persuasive than Chairman Schiff himself bothered to make it.
‘This concept is dead wrong. The Senate is meant to act as judge and jury. To hear a trial. Not to re-run the entire fact-finding investigation because angry partisans rushed sloppily through it. The trajectory that the Democratic Leader apparently wants to take us down — before he’s even heard opening arguments — could set a nightmarish precedent for our institution.
‘If the Senate volunteers ourselves to do House Democrats’ homework for them, we will only incentivize an endless stream of dubious partisan impeachments in the future.
‘We will invite future Houses to paralyze future Senates with frivolous impeachments at will.
‘This misunderstanding about constitutional roles brings me back to something I raised earlier. The Democratic Leader’s letter to me, by way of the press, literally misquoted the Constitution.
‘Senator Schumer wrote that we should exercise, quote, “the Senate’s ‘sole Power of Impeachment’ under the Constitution with integrity and dignity.” He attributed to the Senate, quote, the “sole Power of Impeachment.”
‘Well, there’s his problem. That’s the role the Constitution gives to the House! Article I, Section 2 says “The House of Representatives… shall have the sole Power of Impeachment.”
‘If my colleague wants to read about our responsibilities here in the Senate, he needs to turn to the next page. Article I, Section 3 says, “The Senate shall have the sole Power to try all Impeachments.”
‘We don’t create impeachments. We judge them.
‘The House chose this road. It is their duty to investigate. It is their duty to meet the very high bar for undoing a national election. As Speaker Pelosi herself once said, it is the House’s obligation to, quote, “build an ironclad case to act.” End quote.
‘If they fail, they fail. It is not the Senate’s job to leap into the breach and search desperately for ways to “get to ‘guilty.’” That would hardly be impartial justice.
‘The fact that my colleague is already desperate to sign up the Senate for new fact-finding… which House Democrats themselves were too impatient to see through… well, that suggests something to me. It suggests that even Democrats who do not like this president are beginning to realize how dramatically insufficient the House’s rushed process has been.
‘Well, I hope the House of Representatives sees that too. If House Democrats’ case is this deficient, this thin, the answer is not for the judge and jury to cure it here in the Senate. The answer is that the House should not impeach on this basis in the first place.
‘But if the House plows ahead, if this ends up here in the Senate, we certainly do not need “jurors” to start brainstorming witness lists for the prosecution and demanding to lock them in before we’ve even heard opening arguments.
‘I still believe the Senate should try to follow the 1999 model. Two resolutions. First things first. The middle and end of this process will come later.
‘I look forward to meeting with the Democratic Leader very soon and getting our important conversation back on the right foot.’