What to expect from the Zombie impeachment trial
The Senate Trial of Donald Trump starts Tuesday, February 9, 2021. The trial is a Zombie because, as Rand Paul famously said, it’s “Dead On Arrival” After 45 Senators Vote It’s Unconstitutional.
Yet it still will walk and talk.
Lots of talk.
The deal reached between Schumer and McConnell provides that each side will have two hours on Tuesday to argue over the constitutionality, or not, of an impeachment trial for someone no longer in office.
3 SEC. 2. When, pursuant to Senate Resolution 16, the
4 Senate convenes as a Court of Impeachment on Tuesday,
5 February 9, 2021, there shall immediately be 4 hours of
6 argument by the parties, equally divided, on the question
7 whether Donald John Trump is subject to the jurisdiction
8 of a court of impeachment for acts committed while Presi
9 dent of the United States, notwithstanding the expiration
10 of his term in that office.
Of course, the vote on constitutionality is a done deal, 50 Democrats will vote to move forward, and at least 1-2 Republicans will vote with them. The only issue is whether more than 45 Republicans will vote that the trial is unconstitutional.
You can read Trump’s Trial Memorandum here, the part addressing unconstitutionality starts on page 13. Jay Sekukows ACLJ also issued a Memorandum on why the trial is unconstitutional, and Byron York lists 5 Reasons the trial is unconstitutional in non-legal terms.
You can read my posts here:
- Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office
- Impeachment Problem? Chief Justice Roberts May Not Have Constitutional Authority To Preside At Trial Of FORMER President
- Report: Senate Republicans Negotiating Terms of Unconstitutional Post-Departure Trump Impeachment Trial
- Mitt Romney on board with post-departure impeachment trial of Trump
- Reports: Chief Justice John Roberts Will Not Preside At Upcoming Trump Senate Trial
Under the deal (see link above), Wednesday will be devoted to motions, the House then gets up to 16 hours over two days to present its case. What will that case look like? Accorgding to Politico, there probably won’t be any witnesses during the House presentation:
Democrats made a push for witnesses central to President Donald Trump’s first impeachment trial. But not this time.
Senate Democrats are making it clear they’re taking a different approach than they did for Trump’s infamous Ukraine call. Now, they say their experience as witnesses to the Jan. 6 insurrection is enough.
Trump then gets the same time to present his defense. As we previewed this weekend, Trump’s lawyers intend on playing video of Democrats, some of whom are in the Senate, using more threatening and inciting language than Trump used.
There is the possibility of witness subpoenas, but it’s not clear Democrats even will try that:
8 SEC. 8. (a) If the Senate agrees to allow either the
9 House of Representatives or the former President to sub
10 poena witnesses, the witnesses shall first be deposed and
11 the parties shall be allowed other appropriate discovery.
12 The Senate shall decide after deposition and other appro
13 priate discovery which, if any, witnesses shall testify, pur
14 suant to the Rules of Impeachment. No testimony shall
15 be admissible in the Senate unless the parties have had
16 the opportunity to depose such witnesses and to conduct
17 other appropriate discovery.
18 (b) If the Senate agrees to allow either party to sub
19 poena witnesses, provisions for the admission of evidence,
20 issuance of subpoenas, arrangements for depositions,
21 other appropriate discovery, testimony by witnesses in the
22 Senate, if such testimony is ordered by the Senate, and
23 any related matters are to be determined by subsequent
24 resolution of the Senate.
As much as some Democrats may want to subpoena Trump, he won’t obey a subpoena from an unconstitutional tribunal, and if Democrats tried to enforce it (not sure how they would do that), the constitutionality issue ends up in court and eventually SCOTUS. Considering that the Chief Justice is not presiding, because this isn’t a real impeachment trial, Democrats are likely to lose.
Then there’s more talk. And more talk.
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