Coordinated deception in Senate trial

With Chief Justice John Roberts presiding, and a dozen prominent attorneys participating, you might be forgiven if you imagined actual law was being practiced in the recent Senate impeachment proceedings. You’d be wrong.

Indeed, as a longtime litigator, I cringe to think anyone might have thought the hearings were representative of trials in legal cases.

Defense counsel’s complaint that the House process was unfair because it deprived the president of “his rights” when, among other ironies, Senate Majority Leader Mitch McConnell vowed publicly not to be impartial, and openly announced his intention to coordinate with the White House throughout, had a Through the Looking-Glass quality perverse enough to embarrass George Orwell. That’s especially true considering McConnell, unlike his House colleagues, was required to swear to be impartial.

But the Constitution does not impose any requirements on the House to conduct its portion of the investigation in any particular way.

And that is the point. Impeachment is sui generis, a special and distinct proceeding created and governed solely by the U.S. Constitution as originally drafted. Amendments, like the Bill of Rights, don’t address impeachment at all. So the “right” to participate or call witnesses—options the House managers did, in fact, offer Mr. Trump—simply do not exist.

Impeachment is established, on the federal level, in a mere handful of clauses in the U.S. Constitution. The only language anywhere pertaining to proceedings in the House states that it “shall have the sole power of impeachment.” So the House alone determines how the president is impeached. He literally has no rights there unless representatives vote to give him some. This is because the House action serves merely as an indictment. The trial of the impeachment, in which the sole issue is whether the president should be removed from office (Art. 1, Sec. 3), occurs in the Senate, but there it must be “on oath or affirmation.”

The attorneys defending Trump were well aware of all this, so in complaining he was not afforded his rights, they were intentionally making show arguments intended to mislead an ignorant public.