Cutting through the ‘legalese’ of Trump’s impeachment

Last month—as the House of Representatives prepared to impeach President Trump, setting up his trial in the Senate—Mitch McConnell, the Senate majority leader, laid his cards on the table. “I’m not an impartial juror,” he told reporters. Nevertheless, as the trial began last Thursday, McConnell, along with every other senator, swore an oath to do “impartial justice” in the process. Richard W. Painter, who served as White House ethics chief under George W. Bush, accused him of perjury. Yesterday, more evidence emerged that McConnell is—as he previously admitted—helping coordinate Trump’s defense. Ahead of a vote on them today, McConnell revealed his rules for the trial: each of the two parties will get twenty-four hours for its oral argument, but must use that allocation across two calendar days. In light of their late start time, proceedings could stretch past midnight. Elsewhere, the Washington Post reported that if the Senate ends up voting to hear from witnesses (John Bolton, for example), McConnell will likely “ensure that those individuals are questioned in a closed-door session rather than a public setting.” Last night, Jeffrey Toobin, CNN’s chief legal analyst, reacted to the developments. “I don’t have a problem with the president talking to the senators of his own party; that’s just realism,” Toobin said. “The problem is that they are setting up a process that is a farce.”

Such opacity isn’t limited to the trial itself; top Republicans in the Senate are acting to limit transparency on its margins, too. Last week, it emerged that reporters covering the trial would likely face much tougher restrictions than normal on their interactions with senators. The details remained murky, but on Thursday, several journalists reported that police officers had curtailed their conversations with senators, including a few who had been happy to talk to them. Capitol Police also gave senators cards suggesting phrases that they might use to tell reporters to go away, including “You are preventing me from doing my job” and “Please do not touch me.” (Some senators didn’t need the prompts: when CNN’s Manu Raju tried to question Martha McSally, an Arizona Republican, she called him a “liberal hack,” and hurried off.) Today, reporters will have to file through a magnetometer before they can enter the chamber. Inside, even the camera angles will be controlled by the Senate; according to Michael M. Grynbaum, of the New York Times, “even sedate C-SPAN is aggrieved” by that decision. (For all the platitudes about the trial being a “made for TV” moment, TV, it seems, will not be permitted to make it one on its own terms.)

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As Grynbaum notes, such restrictions represent a departure for the normally cordial Senate, suggesting that “the bash-the-press mentality that led the White House to kill off the daily briefing and strip reporters of their credentials has now crept into” Congress, too. Trump, at least, is explicit about his hatred of the media. As his impeachment trial starts in earnest, there is a worry that the Senate’s war on transparency will operate in the shadows—fought not in ALL-CAPS Twitter screeds, but in the language of decorum and procedure. That could add a patina of legitimacy and fairness to Trump’s rank impulses.

As part of the “decorum,” senators will have to sit in silence during the trial, “on pain of imprisonment”; unlike their counterparts in the House, Senate Republicans won’t be able to pepper proceedings with Fox-friendly sound bites. That’s not to say there’ll be no Foxiness on display; the president, as ever, is keen to litigate his case on TV as much as in the courtroom. Outside the chamber, some of Trump’s most ardent defenders from the House—Jim Jordan, Mark Meadows, John Ratcliffe, and others—will act as surrogates for his defense team. Inside the chamber, Trump will call on a formal legal team that, collectively, has averaged roughly one Fox appearance per day in the past year. In addition to Pat Cipollone, the White House counsel; Jay Sekulow, a personal lawyer to the president; and Pam Bondi, a White House adviser, it will include Kenneth W. Starr (of Clinton-impeachment and being-fired-from-Baylor fame), Alan Dershowitz (of closeness to Jeffrey Epstein fame), and Robert Ray (of… me neither). Appearing on Fox on Sunday morning, Ray thanked host Maria Bartiromo for inviting him on her show so often. “If not for you, I don’t know that I would have come to the president’s attention,” he said.

Even on the president’s end, some of the usual, easy-to-spot bombast has put on a smart suit for its court appearance. Touring cable news over the weekend, Dershowitz advanced a measured, legalistic rationale for what he sees as the inadmissibility of the impeachment articles. (Justice Benjamin Curtis, who defended Andrew Johnson during his impeachment trial in 1868, is not a normal fixture on the Sunday shows.) And yet his core argument, that abuse of power isn’t impeachable unless criminal, is far from a consensus view. Similarly, Quinta Jurecic and Benjamin Wittes write in The Atlantic, the White House’s initial formal filing in the trial, which it entered on Saturday, looked “a little more lawyerly” than Trump’s campaign rallies—and yet “the message is unchanged. It’s not a legal argument. It’s a howl of rage.” The Post reached the same conclusion on reading Trump’s first full legal brief, which followed yesterday, calling it “a legalese version of the scorched-earth rhetoric commonly used in the president’s Twitter feed.”

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As the trial proceeds, we’ll likely see Trump’s defenders try plenty more stonewalling and dissembling under the cover of “legalese.” Senate Republicans, for instance, may call for Hunter Biden to testify under a principle of witness “reciprocity”—a move that would, in practice, only lend institutional credibility to water-muddying smears. The press will need to be extra-vigilant, and call these moves for what they are. So far, pushback has been reasonably robust. Last night, after McConnell revealed his rushed trial timetable, Carl Bernstein referred to him, on CNN, as “Midnight Mitch.” On MSNBC, Neal Katyal, a top Trump-impeachment enthusiast, told Rachel Maddow that “The only things that happen at midnight are trash collection and the execution of prisoners.… Major government decisions and trials don’t happen at that time.”

But such vigilance is not, on its own, sufficient. As the trial progresses, the press also needs to center the facts of the case, and on that score, we could be doing a better job. Scrutinizing procedural skulduggery is important, but it is not an end in itself—process is only valuable to the extent that it brings facts to the fore. If we obsess over process too narrowly, then we abet those—inside and outside of the Senate—who want the facts forgotten. For them, the process is the point.

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Jon Allsop is a freelance journalist. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.