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Impeachment Today Podcast: What Will The Trial Actually Look Like?

In today's episode: a guide for how it will all go down once the Senate trial of Donald Trump kicks off.

Posted on January 3, 2020, at 6:54 p.m. ET

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It's Friday, January 3rd, 2020, 101 days since House Democrats began impeachment proceedings. Every morning, the Impeachment Today podcast helps you separate what’s real and groundbreaking from what’s just, well, bullshit.

You can listen to today's episode below, or check it out on on the iHeartRadio app, Apple Podcasts, Spotify, or wherever you listen to your favorite shows.

It's Friday, January 3rd, 2020, 101 days since the House began its impeachment inquiry, and this is Impeachment Today.

Good morning. I'm Hayes Brown, reporter and editor at BuzzFeed News. Yesterday may have felt like a Monday, but it is already almost a weekend. There may not be a trial date set yet, so we've got that going for us at least, which is nice.

Okay, today we're talking to BuzzFeed News congressional correspondent, Paul McLeod, for Senate trial 101, going through what we know and very much don't know about the next phase of impeachment. But before we get to all that, let's catch up on what happened yesterday.

Defense Department officials were really concerned that they were breaking the law when military aid to Ukraine was held up this summer, and they said so in several emails. A heavily redacted version of those emails was released last week, but friend of the show, Kate Brannen, the editorial director at the website, Just Security, got to look see at the clean versions. And according to her report, there's a lot of important stuff under those black lines.

Here's the best example. Mike Duffy, a top official at the White House Office of Management and Budget told the Pentagon on August 30th not to distribute nearly $400 million in aid, because of a quote, clear direction from POTUS to continue to hold. That's a few days after the hold on that military aid first became public, thanks to an article in Politico.

The Pentagon senior budget official in these emails repeatedly told both her leadership and OMB that if the holds continued, there would be problems. See, Congress approves the money and so not spending it like the DOD already said it would could be considered breaking the law, which is bad. And so DOD asked OMB if they should start planning for what happens if the money did not get out the door before it went poof at the end of September.

But Duffy just basically said, "It'll be fine." That is until September finally arrived and he tried to pin the whole thing on the Pentagon. In an email that copied in OMB and DOD's lawyers, Duffy told the Pentagon that if the money didn't wind up spent once the hold was eventually lifted, it would be the Defense Department's fault, not the White House. The response from the Pentagon was and I quote, you have to be kidding. I'm speechless, end quote.

Adam Schiff, the Chairman of the House Intelligence Committee, which led the impeachment inquiry said in a statement that the emails and the major redactions that blocked out the most damning information leaves people asking what else is the president hiding? As reminder, the White House refused to turn over those and other emails related to Ukraine to the House during the impeachment inquiry.

That stonewalling eventually became the second articles of impeachment against Trump, charging him with obstruction of Congress. The first article, abuse of power related to holding up the military aid to Ukraine in exchange for investigations that would help Trump in his 2020 reelection campaign.

Meanwhile, the Senate is back from their holiday recess today. Good for them. That means that hopefully there'll be some progress soon on setting up Trump's trial. Speaker of the House, Nancy Pelosi is still refusing to transmit the articles of impeachment to the Senate to kickstart that trial until she knows better how things will work.

Senate Democrats are insisting that witnesses be called during the trial, and they want that decision made before anything starts, especially in light of the new reporting that's been published about the internal chaos over the Ukraine aid. But that's something that Senate majority leader Mitch McConnell has said can wait until later. And several Republicans, including Marco Rubio have said outright that there's no need for witnesses at the trial, period.

One Senator though has gone even farther and decided that if that's the way Pelosi wants to play, no trial for anyone. Senator Josh Hawley of Missouri tweeted that on Monday he'll be introducing a motion to dismiss the case for lack of prosecution, which is a new one by my account.

In a followup tweet Hawley said that this would come in the form of a proposal to amend the Senate's rules on impeachment, but he's unlikely to find a ton of support. Members of his own caucus, likely to face a challenging reelection campaign, have pushed for there to at least be enough of a trial to be able to say they did the thing. Dismissing the case now would do nothing to support that claim.

Oh, and by the way, fun fact, one of the four witnesses, the Democrats say should definitely be called, our friend Mike Duffy, the senior OMB staffer from earlier in this segment. I don't know, it seems like he might have some things to say. And now at only three days into the new year, we face impeachment and a major foreign policy crisis at the same damn time, it is time for us to turn today's reading from our Nixometer.

On our scale, zero, normal day, normal White House, 10, Richard Nixon resigns, flies away in Marine One. This morning we're at a 7.8. Let's be really real. The country's collective focus on impeachment got yanked away first by the holidays, then again last night with the news that the US had killed a major Iranian military official in a strike. And with the Senate still not sure when the president's trial will begin, that's even more true. But new reporting continues to come out and it continues to be hella damning towards the president's defense once this whole thing really does kick off.

Okay. After the break, we've got Paul McLeod on to discuss fucking impeachment trials. How do they work? Stay tuned.

All right. Time for the first 2020 edition of This Fucking Thing. It's where we zoom in on a person, place or thing that's shaping the impeachment process. Today, we're running through the basics of what Trump now faces in the Senate. Well, eventually faces, probably. I repeat, things are very, very weird right now. Joining us to break it down is BuzzFeed News correspondent Paul McLeod. Thank you so much for joining us, Paul.

PM:

Hey, Hayes.

HB:

So, let's start at the beginning. Every trial has a judge, prosecution, defense and jury. I'm assuming that's the same in Canada where you're from. Who plays what role during impeachment?

PM:

Well, you came to the right place, as I am widely regarded as the biggest Canadian expert on the American political system. And as laid out in the Declaration of Independence, the trial is proceeded over by Abraham Lincoln's ghost and the jury is played by the role of every American who votes on whether or not to impeach the president via a Twitter poll.

HB:

Our founders were so wise.

PM:

They're really ahead of their time on that one. It's going to be weird. The Chief Justice John Roberts of the Supreme Court is going to be the judge. He's going to oversee all of the proceedings, and he will be in charge of making key decisions, hearing objections. And the Senate, who everyone thinks of as a political body is going to be playing a weird role in that. They will be the jury.

PM:

So they are actually off to the side. They are not going to be really directly involved in the making of the cases, and the trying to shoot down of the cases. They're just going to be sitting there playing the role of the jury. The prosecution will be the House of Representatives, that of course just recently voted to impeach President Trump.

PM:

Nancy Pelosi will send over a series of impeachment managers to make the case, and then the White House will select a team of its own representatives to serve as essentially defense counsel and rebut the House's case.

HB:

So these senators who are acting as a jury, they're kept on a pretty tight leash during the trial itself, from what I understand.

PM:

Exactly. They have to basically sit there silently and watch everything. They can't get involved, because it is helpful to think of this as a trial. You, of course, would not have jury members be able to get up and speak their minds about what's going on. So it's going to be a pretty uncomfortable position for most of them to be in.

PM:

These are not a group of people who like to sit silently.

HB:

Absolutely true. So, will they be taking part at all during the process or is their role really just sit and listen up until the point that they have to vote later?

PM:

Well, it depends. So they're not going to be exactly involved as I say in the argument side of it. But in terms of the shaping of the contours of the trial itself, that does come down to the senators and essentially a majority of senators can vote to approve any motion, in terms of something like let's say calling witnesses or setting out what a witness list will look like, or setting out how long people will be able to talk for. All of that can be handled by a majority.

PM:

So you have this weird dynamic where the senators are mostly going to be sitting there silently, not involved, except for when it comes to the main decisions of how the case will run, in which case a majority 51 senators can then at any given point, have a huge amount of sway.

HB:

So these senators, when they're sitting quietly, what's their daily schedule look like?

PM:

In theory, this is supposed to run six days a week, Monday to Saturday from around 1:00 p.m. into the evening, which is interesting because it means for the people who are still running for president, they can then take off to Iowa and New Hampshire in the evening and then maybe have a pancake breakfast in the morning and get back in time for the impeachment proceedings or start up around 1:00.

PM:

I would just caution people, there's going to be some flexibility in that. I had one Republican Senator flat out say to me, "There's no way we're staying here through Saturdays."

HB:

What? But the rules.

PM:

We're going to immediately vote to change the rules to five days a week, which they can do.

HB:

They can do.

PM:

And you're definitely going to get 51 senators who don't want to work weekends.

HB:

Oh, bless. They're just like us. Right. And I know at some point the senators will have a chance to submit written questions to the prosecution and defense, but that's still not the same as getting up and giving a speech like we've had before. So you mentioned witnesses, and I know that's one of the biggest holding points on why the trial hasn't started yet. Do we have a sense yet of how they're going to decide who's actually going to be called, if anyone yet?

PM:

Yeah, it looks like the plan is that they're going to open with the House and the White House making their respective cases without witnesses, and then decide whether witnesses are needed from there. Democrats really want witnesses to testify, because they feel like the testimony they got in the House was extremely damning.

PM:

We had a series of civil servants get up and testify that they believed there was a political quid pro quo demand from Trump to Ukraine, and then that can get overshadowed by the shouting and the political back and forth. And certainly a lot of Republicans got very good at muddying the waters and distracting from the content of those hearings.

PM:

Well, Democrats want to have another go at that and bring these people forward in the Senate. Obviously, Republicans, many of them are a little bit leery of that. I think a lot of Republicans would just like to get in and get out, and have this be done quick and easy without having too much risk of damaging testimony.

PM:

Again, it comes down to 51 senators. So you would need a handful of Republicans to side with Democrats potentially, to force witnesses being called.

HB:

And that argument over who actually gets to testify and what the conditions are, as far as I know, what's holding up the trial from getting started, right?

PM:

Yeah. That's essentially Nancy Pelosi's only leverage right now is withholding the articles of impeachment, and that is what she's doing. And her stated reason is we want to ensure that there is a fair trial. We want to ensure that witnesses are going to be called and there was a fulsome discussion here about whether or not the president should be impeached.

HB:

So if this is an episode of Law & Order, who's going to be playing the assistant DA and actually making the case? I know that one of the things that Pelosi has to do to get the trial started is appoint these House managers. I know she hasn't done so yet, but are there folks that we should be keeping an eye on for that role?

PM:

Oh yeah. This is going to be one of the prime gigs in Washington over the Trump years. You are going to be in the spotlight, you're going to be making the case why the president needs to be impeached. So everyone in the House is going to want to get on this team.

There are a lot of people we can point to, but there's one in particular I want to highlight, because to me, he's far and away the most interesting candidate and that is Justin Amash of Michigan, who is not a Democrat. He was a Republican. He left the Republican party. He is pro impeachment. He is an extremely smart guy, and I've talked to him about it.

He's very good at making the case for why he believes the president committed impeachable crimes, and also, he has a certain credibility that Democrats don't have, because he's one of the most right wing libertarian members of the House. So he speaks from a different point of view, and it would really flesh out the House attack if they could get him to agree to come on.

HB:

So on the defense side, do we have any idea yet who's going to be representing the president?

PM:

Rudy would be the dream. I would love if Rudy... I don't think they're going to let him take the reigns, given how every time he talks, we have some Biden-esque fiasco, but I think he'll leave it more to the professionals. Pat Cipollone who is the White House Counsel, he was seen going in and meeting with Mitch McConnell last month when they were talking about setting up the contours of this trial. I think he's been handling a lot of the front end of dealing with the impeachment investigation. I could see him leading things up.

PM:

The real fun question is whether or not they get in some of the attack dogs, like Jim Jordan or Matt Gaetz or Doug Collins, some of these guys who for weeks now have been leading the charge and just attacking every charge against the president and defending President Trump. If they get brought over and they are part of this process, it immediately becomes 10 times more chaotic and absurd.

HB:

Because it's much like Air Bud. There's no rule saying your dog can't be a lawyer in a defense trial. So there's no rule that says that members of the House can't also be members of the defense counsel.

PM:

Exactly. And that would be a sign that we are moving away from a more legalistic hearing type thing or towards a purely political process, where we are just going to have the people who can shout the loudest and put them at the forefront here and that's going to be the defense strategy.

HB:

Speaking of shouting the loudest, can we expect Trump to come up on the stand and give his best, I ordered the code red?

PM:

I think Mitch McConnell would chain himself to the White House doors to lock Trump inside before he would let that happen. Keep in mind, that a big key part of the Trump defense is that the administration has refused to allow senior administration officials to testify at any point during the House investigation. The top people who were in the room when this was being discussed have stonewalled Congress.

PM:

It would be quite a turnaround for Trump now to show up and just be able to speak freely and be questioned by representatives in the House-

HB:

Under oath, which he wouldn't even do for Mueller. It'd be a mess.

PM:

The potential for disaster there would be so high. That again, I think Republicans, they would slash his tires, they would do whatever it took to make sure that that does not happen.

HB:

Okay, so biggest question of the moment, once we actually do get this process started, what time range are we looking at for this to actually wrap up and how will the Senate decide when to vote on the charges against the president?

PM:

Yeah, that's a great question, and I've had a lot of discussions with people where we've had our different guesses about how long this is going to go. Some people think it'll be closer to a month. Some people think it'll be one or two weeks. I tend to fall somewhere in the middle. I think somewhere in the three week range sounds about right.

PM:

The trick is this, Republicans need to have a full hearing of the evidence against the president before they push it to any vote, because you need the process to have legitimacy. You need to be able to say, look, we heard them out and we made our decision and it can't just look like a show trial where you're wrapping it up after one day.

PM:

That said, they also don't want this to drag on for an extremely long time. We don't know exactly what it's going to be. At a certain point, you're probably going to have 51 Republicans once you can convince some of the Susan Collins that they're comfortable with it. You're going to have them move to push this to a final vote and then you will have a largely party line vote to acquit the president.

HB:

All right, well, Paul, there's so many question marks in the air right now, but thank you for coming on and breaking this down with us. I'm sure that we'll be talking to you a lot in the coming weeks.

PM:

Yeah, I think we'll have some stuff to talk about.

HB:

Thanks Paul.

PM:

All right, have a good one.

HB:

All right, just one more thing before we go. Now that we are in 2020, aka the future, we want to hear what you all think is going to happen with impeachment down the line this year. For instance, when will a Senate trial start? Will Trump testify? Will the trial ever actually happen? What robe will Chief Justice John Roberts wear? Because he gets to pick his own, and I for one am fascinated.

Just open the voice memo app on your phone, record your prediction and email it to impeachment@buzzfeed.com, or just send me a direct message on Twitter. I'm @HayesBrown and my DMs are always open. Who knows? If enough of you submit, maybe we'll get a betting pool going. Probably not. I don't want to handle your money.

All right, that's it for our short first week back. Next week, we'll dive into the Senate trial itself, all the parts and the major players as we wait to see what will actually happen with the trial itself. Hurray. Even more uncertainty in 2020. You love to see it. I hate to see it.

This show is produced by Dan Bouza, Alan Haburchak, and Jacopo Penzo, with editorial assistance from Tom Gara, editing by Josh Fisher, Taylor Hosking and Ryan Kailath. Julian Weller is our supervising producer. Special thanks to Mangesh Hattikudur, Nikki Ettore, Samantha Henig, Maggie Shultz, and Ben Smith.

Lastly, if you're not already for some reason, make sure to subscribe to Impeachment Today on the iHeart radio app, Apple podcasts or wherever you frequent to hear my disembodied voice. And please, please leave a rating and a review. It will be a great resolution for you. It's the best way to help us reach out and teach more people about this wacky thing called impeachment. Also, tell your friends about the show as we all figure this out together.

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