McConnell and Graham must recuse: how to make them

On December 12th, Senate Majority Leader McConnell went on Hannity’s show on Fox News and laid an egg. He reassured Hannity’s viewers that there was no way Trump would be removed from office and that he was coordinating closely with the White House counsel for the upcoming Senate impeachment trial, going so far as to say that he would “take his cues” from the White House team.

For normal Senate business this would be unremarkable. The Senate Majority Leader coordinating with the White House on Senate business, particularly if they are both of the same party, is quite normal. But he wasn’t talking about normal Senate business.

Senate trials for impeachment are a unique setting, especially impeachment of the President. The trial will be presided over by Chief Justice Roberts. The case for the prosecution will be presented by House Managers—members of the House or counsel selected by them to prosecute the articles of impeachment. The President will be defended by his lawyers. Each side can summon witnesses to the stand.

That leaves the Senators. They will have one job: to shut up and listen. The normally garrulous bunch are not permitted to talk: according to Rule 19, they must not “engage in colloquy“. Any questions they might have must be put in writing and handed to the Chief Justice.

This is because, during the Senate trial, Senators play the role of Jurors. They will take a Juror’s Oath, to be administered by the Chief Justice: ‘‘I solemnly swear … that in all things appertaining to the trial of the impeachment of Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’ Their role is to be impartial and weigh the facts presented at trial.

This is why Mitch McConnell’s statement was so inappropriate. He was not only reneging on the promise to be impartial, but also colluding with the defense.

There was a time when Sen. Lindsey Graham came across as open minded about Trump’s impeachment. “If you could show me Trump was engaging in a quid pro quo, that would be very disturbing,” he told Axios. That was then—late October. The only first-hand witness with a direct line to Trump who had testified to the House was Amb. Gordon Sondland, and he had resisted admitting to a quid pro quo between Trump and the newly-formed Zelensky administration of Ukraine.

Then Sondland changed his testimony. On November 5th he sent House committees a revised statement that admitted to withholding aid in return for political favors.

On that very day, Lindsey Graham decided that he had heard enough. He would not be reading or tuning in to the proceedings any further. “I’ve written the whole process off…. I think it is a bunch of B.S.,” he said.

After two articles of impeachment passed the House Judiciary committee, he said: “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.” He also predicted that the Senate trial would die quickly and he would do all he could to help it die quickly. He was, as it were, taking a pre-oath to renege on the oath he will be required to take.

It’s worse than it sounds.

The two of them weren’t just reneging on their oath. They were in fact promising, up front, to rig the process and assure an outcome.

But it’s even worse than that.

Lindsey Graham is the Chairman of the Senate Judiciary Committee: this is the committee particularly concerned with impeachment. While Mitch McConnell is of course the Majority Leader. By putting the weight of their positions behind their refusal to take the process seriously, they are sending a message—that the impeachment of Donald Trump is illegitimate.

But if and when articles of impeachment are passed by a House vote, it will be the will of the people who voted to give Democrats a House majority in 2018. By extension, McConnell’s and Graham’s message is that the will of those voters is illegitimate.

Many have pointed wonderingly at the words Lindsey Graham once said during the impeachment of Bill Clinton. There, he pretended to a judicial temperament, exhorting his colleagues to take their duty of impartiality seriously. How could such a one as Lindsey Graham could have turned completely around?

But it is completely explicable. In the last impeachment, he got to be the grave chin-stroker casting judgment on not just a President, but on an entire base of voters who still stood by him. In this current impeachment, the judgment is being cast on himself for selling his soul, knowingly, to a long-standing criminal. The further his chosen President slips into ignominy, the stronger are Lindsey Graham’s defenses against hearing anything at all.

Last Juneteenth, Mitch McConnell made a statement that to my mind, clarified instantly his years of obstruction of the Obama Presidency. The blocking of Merrick Garland; the refusal to negotiate on Obamacare; the refusal to provide a united front against an unprecedented attack by Putin’s Russia. It all made sense.

When asked about reparations, McConnell said that the election of an African American President itself was a form of atonement for slavery. He probably didn’t mean it this way, but it was revealing to me that he saw Obama as atonement: as an eight-year-long sacrifice in order to propitiate the gods, rather than the will of the people, worthy of legitimacy. Obama was a mistake, in his mind; an eight-year-long deviation—and so was the will of his voters.

Given this background, is it surprising that he would hold on so strongly to Trump, who in every way is a temper tantrum against the election of Obama? Should Obama’s Presidency be thought of as a successful one, while their own vengeful Presidency be under such a microscope of distaste? Ah, it is not to be borne.

A juror who cannot be impartial is removed from the jury pool.

I’m not a lawyer, and like most of us laypeople, what we know of the law comes from the movies—such as those based on John Grisham novels. I was reminded of a famous scene in one such movie, The Rainmaker (1997), by Francis Ford Coppola, that involves jury tampering.

The defense attorney (played by Jon Voight) suspects that the plaintiff’s attorney (played by Matt Damon) has had a phone call with a juror prior to the start of the trial. This leads to accusations of jury tampering and a dramatic scuffle on the courtroom floor. The suspicion of tampering and prior contact is enough to require the juror’s removal.

Indeed, several people with significant roles in the impeachment have demanded that Sen. Graham and Sen. McConnell recuse from the upcoming Senate trial.

Rep. Val Demings, who used to work in law enforcement and is now in the House Intelligence Committee, issued a statement instantly after McConnell’s appearance on Fox. Sen. Brian Schatz spoke up on Twitter; as did Rep. Karen Bass from the Judiciary Committee, and Rep. Justin Amash who used to be a Tea Party Republican.

Sen. Whitehouse wondered if they will not even take the oath—which means they would be removing themselves from the jury:

Of course, they must recuse, or lie under oath. This is not under any doubt. The only remaining question is how we, the people, will compel them.

And there’s the rub.

disqualify Senators for bias

Retired Federal Prosecutor Elizabeth de la Vega recently tweeted about the time when Chief Justice Roberts himself was randomly called up for Jury Duty. He too, like any other citizen, had to answer the juror’s standard question during voir dire: “Is there any reason it would be difficult or impossible for you to be fair and impartial in this case?” “Nope,” he answered. That time however, he was sent home.

During the impeachment trial, Chief Justice Roberts ought himself to be called upon to “send home” Senators who have claimed that they cannot be impartial jurors. This includes Sen. Graham and Sen. McConnell. Elizabeth de la Vega’s advice to the House Managers is to make a motion to disqualify these two Senators based on bias made to the Chief Justice. This would be done after the proceedings begin but before the Senators take their oath as impeachment jurors.

How likely is it that Chief Justice Roberts would do so? I agree with her response to the “defeated” sentiment on her Twitter feed: the House Managers must do the right thing; for his part, the Chief Justice understands what that is.

Keeping it in the House

Here’s another idea, suggested by John Dean, Nixon’s White House Counsel, who turned State’s evidence during Watergate.

The impeachment of Donald Trump has gone lightning fast. It was only three months from the time that the House Intelligence committee got to know about the whistleblower’s complaint to two articles of impeachment being passed by the House Judiciary, with dozens of hearings in between. The reason for the speed: as noted by top Democrats, this is a crime in progress, with Rudy Giuliani still traveling across Ukraine to dig up dirt, constantly confessing, while he, too, is under investigation at SDNY.

Of course, all that speed will come to naught if all we get is a sham trial in the Senate. A speedy trial, if it leads to a foregone acquittal, is counterproductive. It will embolden Trump to go back to criming strenuously; or rather, continue criming, because he never stopped.

This is why John Dean suggested that the House should keep the articles of impeachment open in the House, keep investigating, keep the pressure on, and don’t send them to the Senate.

Further, he suggested that the House explicitly tie sending articles to the Senate to getting fair rules passed. Well, isn’t it part of a fair trial to have jurors who have shown actual bias to be removed from the pool?

This reverses the incentives on Trump and the Republicans.

Republicans have always understood how to weaponize investigations into political opponents. There was the time Rep. Kevin McCarthy admitted the value, to them, of the Benghazi investigation (“look at her numbers now,” he basically said); and the time that FBI Director Comey was rat-fucked into re-opening Clinton’s email investigation. Of course, Trump is currently being impeached because he tried to extort Ukraine into announcing an investigation into Biden. They may not admit it publicly, but they know how damaging it is for Trump to be under impeachment during election season. Hence the desperation to twist it into an investigation into Biden instead.

To mix metaphors, instead of treating impeachment like a hot potato and passing it on as fast as possible, perhaps the House should not look a gift horse in the mouth, and keep it open, and use it as leverage? The leverage: Republicans don’t get to move out from under the weight of impeachment unless McConnell and Graham get out of the way.

Is it a head-fake?

Counterpoint. If I’m Mitch McConnell, what do I want more than anything?

If I’m McConnell, I don’t want Republican Senators—especially the vulnerable ones—to have to take a vote on the acquittal/conviction of Trump at all. Conviction might make them toxic to the base. Acquittal might make them toxic to the mainstream. Vulnerable Senators need both. There is no politically safe harbor for a single vulnerable Republican Senator except not voting on impeachment at all.

So what do I do? I signal to House Democrats that they are not likely to get a fair trial in the Senate. It is a foregone conclusion; better to not pass the articles of impeachment at all.

By employing John Dean’suggestion, are House Democrats playing into Mitch McConnell’s hands?

On the one hand, by keeping impeachment in the House, we end with a strong accusation—but no sham trial, and no fake exoneration. On the other hand, we also protect Senate Republicans from having to take an unpopular vote in an impressively popular impeachment.

Or perhaps it is a head fake of another sort. What are we to make of their pettish, un-Senator-like refusal, upfront, to even pretend to impartiality? Honestly, part of me wonders if, stuck between an unsavory set of facts, and an impossible choice, they are both simply begging to be disqualified. Neither can they convict their darling, nor can they bring themselves to look at his crimes full-face. Perhaps they just want to be put out of their misery.

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