Before we get into the actual facts of the case, consider the setting and the rules contingent therein. First, the House hearings in the fall of 2019.
The House managers made frequent reference to their formal impeachment in the House of Representatives as akin to a grand jury hearing, where the prosecutor (represented by the Chairmen of the several House Committees that held public hearings) calls witnesses and develops evidence to see if there’s sufficient cause to submit everything to a more formal tribunal for consideration. What comes out of the grand jury is a formal indictment.
I prefer the term “preliminary hearing” to a grand jury, like in the Perry Mason TV series and novels. If you’ve ever seen the Perry Mason show, the trial portion has all the trappings of a formal trial, with the prosecution calling witnesses, a judge rules on points of order, and the defense rebuts and calls its own witnesses. If the accused is not exonerated of guilt, the case is “bound over to a superior court.”
In the Trump impeachment, per the preliminary hearings in the House, there was sufficient evidence to bound over the case to a superior court, which in this case was the US Senate, sitting in a formal impeachment trial.
The President’s counsel repeatedly said the President was denied due process in the House hearings because his attorneys were not allowed to present evidence and question witnesses. The House manager said, rightfully so, that the President was, in fact, allowed to have his attorneys present in the House hearings and to call witnesses. His attorneys just declined to do so, probably because the Republicans on the committees in the House hearings did just fine asking questions and calling witnesses to rebut the prosecutor’s case.
That is not denial of due process. It’s refusal to participate in due process, which can no way be held against the House manager’s prosecution, as counsel for the President repeatedly tried to do.
Therein lies the inherent flaw in the way Senate Majority Leader Mitch McConnell structured the hearings in the upper chamber. In a true trial, as soon as the counsel for the defense claimed the President was denied due process, Perry Mason would jump right up and object, “facts not in evidence.” And Justice Roberts would uphold the objection.
We, the jury watching on live TV, would register that objection and the judge’s ruling, and therefore take points away from Team Trump for trying to pull a fast one.
McConnell’s rules, however, eviscerated the whole trial atmosphere. Each side had an allotted time to present their case, during which time no interruptions were allowed. This permitted the president’s attorneys from stating a litany of lies without any objections being made. (Arguably, the House managers did the same thing, in how they presented the facts around the Ukraine corruption allegation.)
The result is anything but “the most deliberative body in the world,” but a Kangaroo Court. And with the kangaroo’s hind feet tied together and locked to the floor so the poor creature couldn’t jump up and object when an obvious falsehood was made in fact-witness testimony by either team of attorneys.
This agonizingly slow unfolding of evidentiary “facts” over the first six days of the Senate hearings, opening with three days by the House managers and closing with three days by the counsel for the defense – with no interruption in between – was set up in the very beginning by Leader McConnell.
The Republicans already had a lock on a dismissal, with a guaranteed 53 out of 100 votes – 67 needed to convict. No Senator had ever voted to impeach against their party in any of the three previous presidential impeachments. Mitt Romney was the very first to do so, voting against his Republican caucus to convict on Article One, “abuse of power.”
Given an inevitable dismissal of all charges, why did Mitch McConnell need to stack the deck even further against the House prosecution? Doing so itself reeks of contempt and abuse of power, bringing to mind the “piling on” by sports teams that everybody perceives as a terrible lack of sportsmanship. The only thing even close to a debate we ever got was when the live-action broke to the network commentators, who then debated the merits of the case.
I, for one, didn’t tune into the hearings to hear pundits postulate. I wanted to hear the Senators themselves stand up and argue. Alan Dershowitz and others frequently belittled the British legal system, from which ours emerged, as not being democratic. Well, at least they have knock-down-drag-out shout matches in the House of Commons over the issues. That’s what I wanted to see.
Optics. That’s why the Senate Republican caucus rigged the “debate,” to castrate all deliberations in favor of stultified, formal presentations by self-proclaimed expert witnesses. The Republicans were painfully aware that an election is coming up, and they didn’t want to stand up and formally argue any position that could be held against them during the general election or in campaign ads by the opposition (both from the Democrats and members of their own party).
I’m sorry, but that doesn’t even have the most rudimentary trappings of a trial, much less in “the most deliberative body in the world” as the commentators said ad nauseum. We had neither deliberation or a trial in any sense of either word.
The only possibility for deliberations of the kind that are integral to the exercise of impartial justice was if witnesses were called, and both sides were given the opportunity to prove their case through direct and cross-examination. Again, as was painfully obvious at every step of the whole process, the Republicans were adamantly opposed to giving any face time in front of the cameras as would happen in a cross-examination atmosphere.
So, what we got was exactly what we saw on the Senate television cameras: A trial with no jury (you never saw any of the Senators in the gallery). Worse yet, a jury that was terrified to stand up for their decision made in judgment.