How Mitch McConnell could give impeachment the Merrick Garland treatment

It’s on track to be the trial of the century: President Donald Trump fighting to keep his job before a jury of 100 senators.

It also could never happen.

That’s because of a Constitution that designates the Senate with the “sole power to try” an impeachment that comes from the House. But nowhere in America’s founding document is the trial said to be a mandatory act.

Sure, it would be an unprecedented move in U.S. history for Republican leader Mitch McConnell to table Trump impeachment proceedings without allowing any significant debate or a vote to convict a president from his own party, thereby removing him from office. But it’d be well within his power.

Conventional wisdom still says there has to be a Trump trial. McConnell, after all, said in March that the Senate would have “no choice” but to hold one if the House voted for impeachment.

But political conditions can change quickly in the Trump era. And lawmakers from both parties say they wouldn’t be surprised if the Kentucky Republican ultimately made the same calculation he did in 2016 when President Barack Obama nominated Merrick Garland for the Supreme Court — only for the Democratic president to see his pick axed by McConnell under the auspices of letting voters decide who should fill the vacancy in the next election.

“You’re going to start hearing that argument and much more loudly, because we’re not too far away from the moment when voters start voting,” said Michael Steel, a longtime GOP operative and aide to former House Speaker John Boehner. “You’ve got to make the case why it matters and why it rises to the level of removing an elected president of the United States from the White House.”

Party politics are sure to be front and center in McConnell’s decision. The Senate Republican doesn’t need to worry about his most vulnerable incumbents facing serious primary challengers. The more pressing issue is whether he makes them take a vote exposing them next November to Democratic attacks that they failed to hand Trump the ultimate punishment for his misdeeds.

Among the many calculations Republicans say McConnell has in his favor is simply the whirlwind that is Trump. Think back to the Sharpie hurricane map, the president’s overtures to buy Greenland or even the “Access Hollywood” tape. The GOP can almost take it to the bank that any outrage voters are hearing in the short term about a thwarted impeachment trial would be subsumed by something else come Election Day.

“We move onto whatever the next thing is,” Steel said.

That doesn’t mean it won’t get ugly. Impeachment is bare-knuckles stuff, and House Democrats are fuming over a whistleblower complaint that Trump in the wake of special counsel Robert Mueller’s nearly two-year Russia probe asked for another foreign country to help him win an election.

At the same time, there’s pretty much widespread agreement on a point that would be central to the debate over a Senate trial — where a two-thirds vote is required for conviction but where the Constitution itself is sufficiently ambiguous on the requirements for him to do it. In fact, the word “must” doesn’t appear anywhere in the document.

“Up to the Senate,” former House Speaker Newt Gingrich said in an email. “No way to force them to act.”

“The Senate makes the decision,” agreed Don Ritchie, the retired Senate historian.

For most senators, the default answer on pretty much every impeachment question in the Trump era has been to punt. It’s too speculative, they frequently say, even when presented with the details of something the president has done that House Democrats are willing to declare has crossed a line worthy of his removal.

“That’s way, way — that’s way, way — way down the line,” Delaware Democratic Sen. Tom Carper said this week when asked whether he was concerned about McConnell tabling a Trump impeachment trial.

McConnell himself didn’t respond when asked by reporters earlier this week whether he’d even allow the Senate to hold a Trump trial, though he did show his cards in a statement to POLITICO that the latest presidential quagmire was “laughable to think this is anywhere close to an impeachable offense.”

A GOP Senate leadership aide sent a note to reporters Saturday afternoon, after this story published, citing a “definitive memo” from the Senate parliamentarian in 1986 saying “both the rules and the precedents on impeachment argue for a rapid disposition of any impeachment trial” in the Senate. The memo said that under the chamber's rules, “it would take specific Senate action to suspend the rules for impeachment” — meaning a two-thirds vote. The current Senate leadership aide noted that a majority vote to dismiss the articles of impeachment would be allowed under existing rules, a vote that occurred during the Clinton impeachment.

Still, McConnell in the coming weeks is expected to avoid specific questions on impeachment as hypotheticals, including whether he'd seek to have the rules or practices changed by the current Senate GOP majority.

On the other side of the Capitol, Democratic-led investigations have started moving into a new gear with the first wave of Ukraine-focused subpoenas and depositions. While there’s no firm timetable for committee or floor votes to impeach the president, there are plenty of opinions about how McConnell will handle things should the case end up in his court.

“I trust Mitch McConnell to run the Senate, so I’m sure he would operate in a procedurally appropriate manner,” said Oklahoma GOP Rep. Tom Cole. “But institutionally, if the House votes to impeach, I don’t see how you ignore a trial in the Senate. But, again, I trust his judgment.”

Ohio Democratic Rep. Marcia Fudge said she’s bracing for McConnell to hit the brakes — just like he did with the Garland nomination.

“I don’t know if it’s the correct thing to do, but I think that’s what he probably would do,” she told POLITICO. “I think there’d be so much pressure, though. I think he’d have to.”

One thing McConnell won’t be lacking for is precedent — a mishmash of historical examples on impeachment involving one senator, a Cabinet member, more than a dozen federal judges and a couple of presidents. All reach the same conclusion. It’s up to him.

In 1797, Sen. William Blount of Tennessee became the first federal official to face impeachment proceedings, though he got expelled from the Senate before his colleagues could hold a trial against him. During President Andrew Johnson’s impeachment, the Senate voted to acquit Abraham Lincoln’s successor on three House-passed articles dealing with his handling of reconstruction after the Civil War. Then the chamber adjourned and never took up the other eight.

More than a century later, President Richard Nixon appeared headed toward impeachment because of Watergate but his case never even got to the Senate. The Republican instead resigned once senators from his own party came to the White House and told him he’d be toast.

Fast forward to the late 1990s, where President Bill Clinton’s Senate acquittal was a foregone conclusion given Democratic opposition that meant the GOP didn’t have the two-thirds vote. But Republicans still forced a month-long trial that’s perhaps best remembered for the gold flair stripes that Chief Justice William Rehnquist had specially stitched onto the shoulders of his black robe.

"We had a hard time figuring out how to proceed,” retired Mississippi GOP Sen. Trent Lott, the majority leader during the Clinton trial, said in an interview. He recalled how his own lawyers had advised him that “if the House acted to impeach, we had to take it up in some way or another and consider it in the Senate.”

Lott’s Democratic counterpart, retired South Dakota Sen. Tom Daschle, said in an email that he too leaned on his party’s top lawyer, Bob Bauer, for help interpreting the requirements to hold an impeachment trial. Bauer, who would go on to become White House counsel under Obama, earlier this year penned an analysis on the blog Lawfare on exactly this topic.

He wrote that “in this time of disregard and erosion of established institutional practices and norms” McConnell could very well buck Senate tradition and move to skip a Trump trial. “And he would not have to look far to find the constitutional arguments and the flexibility to revise Senate rules and procedures to accomplish this purpose,” Bauer added.

Should McConnell allow a trial, the Senate would have a chance to vote on rules covering the whole process. In Clinton’s case in 1999, during a meeting in their historic early 19th century chamber in the Capitol, the Senate hammered out a plan for how many hours the House GOP impeachment managers and the president’s lawyers would have to argue their case and pose questions.

There’s also another set of applicable Senate impeachment trial rules that would probably come into play — and they are a throwback to another era. For example, there’s a specific script that the House sergeant at arms must read aloud when presenting the articles of impeachment on the Senate floor, including a command that all senators must be silent during the reading “on pain of imprisonment.”

Specific start times must be followed for the different parts of the trial: 1 p.m. for the first Senate session on the day after it receives the articles of impeachment from the House; 12:30 p.m. to swear in the senators as jurors: noon for each day of the trial itself. There are exceptions to change the times with a vote.

And then there’s this: An official facing impeachment is allowed to appear before the Senate or send lawyers to answer to the charges. Clinton used a combination of attorneys from the White House counsel’s office, his private team and former Sen. Dale Bumpers to make his case. With Trump, the line begs the question whether the former reality television star might use his pugnacious personal lawyer Rudy Giuliani or just make the trip down Pennsylvania Avenue and defend himself.

That is, if there even is a trial.

While the decision clearly rests with McConnell and his GOP counterparts, Texas Democratic Rep. Al Green argued in an interview that Supreme Court Chief Justice John Roberts, who under the Constitution presides over an impeachment trial in the Senate, could also play a key role in resolving any dispute.

“Does he want to preside over a kangaroo court, or does he want the reputation of the Senate, the Supreme Court and his own legacy to be upheld?” said Green, who has already forced three House floor votes on Trump’s impeachment. “I would hope that Chief Justice Roberts would have the concern of more than Mr. McConnell and the Republican Party within his thought processes. This is a time for us all to rise to the occasion and come to the aid of our country.”

Marianne LeVine contributed to this report.