CNN Opinion is curating commentators’ smartest takes on the first day of President Donald Trump’s Senate impeachment trial. The views expressed below are their own.
Joe Lockhart: Roberts is keeping both sides on a short leash
Perhaps the most dramatic moment on camera in opening day of the Senate trial was when Chief Justice Roberts admonished both sides for their rhetoric after a heated exchange between Democratic Rep. Jerry Nadler and Trump lawyer Jay Sekulow. Roberts called them out for what he saw as their inappropriate behavior. (“In the 1905 Swayne trial, a senator objected when one of the managers used the word ‘pettifogging’ and the presiding officer said the word ought not to have been used,” Roberts said. “I don’t think we need to aspire to that high of a standard, but I do think those addressing the Senate should remember where they are.”) It was significant because Roberts, in the first night, has now already inserted himself in the process more than Chief Justice William Rehnquist did in the entire impeachment trial of President Bill Clinton in 1999.
And, while the chief justice scolded each side “in equal terms,” the remarks have far more significance for the President’s legal team going forward than for the House managers. It is an early indication that Roberts views his role as more than window dressing. Rehnquist famously said about his role in the Clinton trial, “I did nothing in particular but I did it very well.” Roberts remarks may – and I emphasize may – signal a more active role. That role may be needed as this trial and its rules don’t have the bipartisan support the Clinton trial did.
Crucially, the lecture from the chief justice applies much more to the White House defense team. Tuesday gave us an obvious window into both sides’ strategies. The Democrats will be – as they showed on day one of the trial – arguing about evidence, witnesses and the law. The White House lawyers signaled clearly that they intend to program their defense, like the defense in the House, for Fox News viewers. Rather than citing evidence or exculpatory witness testimony, the President’s lawyers attacked the House case repeatedly with language like “ridiculous” and “outrageous.” While they are strong words, they have no evidentiary function in a trial.
If the trial so far is any indication, Chief Justice Roberts appears to be considering keeping both sides on a short leash. And that short leash will play to the House managers and throttle the strategies of the President’s team.
Joe Lockhart was White House press secretary from 1998-2000 in President Bill Clinton’s administration. He co-hosts the podcast “Words Matter.”
Elie Honig: McConnell’s daring executive privilege claim
Republican Sen. Mitch McConnell told those gathered in the Senate for President Trump’s impeachment trial today that “some of the proposed new witnesses include executive branch officials whose communications with the President and with other executive branch officials lay at the very core of the President’s constitutional privilege.” Thus, McConnell has fallen in line with the strategy previously announced by Trump. Days after National Security Adviser John Bolton’s seismic announcement two weeks ago that he would testify if subpoenaed by the Senate, Trump claimed he “would have no problem” with Bolton testifying but would try to stop it because “we have to protect presidential privilege” and “I think you have to for the sake of the office.”
While Trump’s statement related specifically to Bolton, executive privilege could also apply to other former or current executive branch employees – including Secretary of State Mike Pompeo, acting White House Chief of Staff Mick Mulvaney and Office of Management and Budget official Michael Duffey.
The law surrounding executive privilege is complex, and its application varies depending on the specific nature of the witness and communications at issue. The leading case is the Supreme Court’s historic 1974 ruling in the Richard Nixon White House tapes case. The court unanimously recognized executive privilege but determined that it applied only to a narrow class of communications between a president and his close advisers. The Supreme Court ruled that executive privilege is not a general shield to hide impropriety but rather primarily “protect[s] military, diplomatic, or sensitive national security secrets.” Depending on the specific nature of Trump’s conversations with Bolton (or other witnesses) about the hold on foreign aid to Ukraine, the privilege might or might not apply.
There also is a compelling argument that executive privilege does not apply at all to impeachment. No court has yet decided the issue (the Nixon opinion came down in the context of a criminal grand jury subpoena, not a formal congressional impeachment proceeding). But there is a legitimate historical argument that an impeachment trial necessarily must penetrate the inner workings of the executive branch, the President and his staff, given that impeachment may be necessary to ensure constitutional balance of powers. Essentially, the argument goes, given the stakes, the need for sensitive information outweighs the need for secrecy.
But McConnell’s strategy here may be less about invoking the substance of the legal doctrine of executive privilege, and more about simply trying to delay – or to threaten to delay. Indeed, McConnell stated (or perhaps suggested) on Tuesday, that “[p]ursuing those witnesses could indefinitely delay the Senate trial and draw our body into a protracted and complex legal fight over presidential privilege.” In other words, according to McConnell: if you get witnesses, I’ll invoke executive privilege and take this train right off the rails. The parties would have to litigate the complex issue – likely separately as to each witness – which could cause a delay in the trial that neither side would want or tolerate.
Elie Honig, a former federal and state prosecutor, is a CNN legal analyst and a Rutgers University scholar.
Laura Coates: The “Godfather” defense
To quote noted “Godfather” consigliere Peter Clemenza, “(l)eave the gun. Take the cannoli.” While it may seem completely counterintuitive to leave a literal smoking gun at the scene of the crime, the fictional Clemenza tampered with the gun, rendering it untraceable. His belief that there would be no way to tie the incriminating evidence to him emboldened him to such an extent that he taunted investigators with their own perceived impotence.
Which brings us to President Donald Trump’s impeachment trail, which began in the US Senate Tuesday.
It seems Trump’s legal defense team is following this odd Clemenza-inflected roadmap: be dismissive of the incriminating evidence in plain view, knowing your stonewalling strategy may have inoculated the President. This is no coincidence. Trump’s defense team’s strategy is attempting to capitalize on a kind of Catch 22 approach that requires the Democratic House impeachment managers to prove their case using evidence that the administration has refused to provide, all while Republican overseers in the Senate attribute the insufficiency to the incompetence of the House. We’ll have to wait and see whether this taunt will ultimately leave Senators wondering how much smoke and mirrors their voters will take.
Laura Coates is a CNN legal analyst. She is a former assistant US attorney for the District of Columbia and trial attorney in the Civil Rights Division of the Department of Justice. She is the host of “The Laura Coates Show” airing weekdays 10 am -12 pm on SiriusXM. Follow her @thelauracoates.
Scott Jennings: The debate over impeachment rules reveals Democrats’ hypocrisy
The big Senate debate Tuesday over the rules to govern President Donald Trump’s impeachment trial was irrelevant. Two-day limit on opening arguments? Three days? Twelve hours? Eight hours? It makes no difference, because there’s no way to spin this Rubik’s Cube to engineer a conviction of the President. Most disappointed, though, are the Democratic Party hashtag makers who had their “#MidnightMoscowMitch” name-calling campaign derailed.
Now, with McConnell’s rules change giving 24 hours of presentations over three days instead of two, there will likely be no late night arguing on the Senate floor, much to the chagrin of the branding gurus over at the Democratic Senatorial Campaign Committee. (It is a mystery to me why McConnell’s opponents continue to contrive splendid nicknames for him, but so be it.)
The bigger story to come remains whether witnesses will be called during this trial. On that point, Democratic hypocrisy was on full display ON Tuesday. Chuck Schumer, the Democratic leader, made impassioned remarks calling for witnesses. But, in 1999, during the impeachment of a president of his own party, he had a different view: “It seems to me,” Schumer said back then, “that no good case has been made for witnesses.”
What’s changed? Just one thing – there’s a Republican president now instead of a Democratic one. Does anyone think there’s any configuration of rules or witnesses that would cause 20 Senate Republicans to vote to remove this president from office? I think not. For the Democrats, this is all about election politics and not some duty to the US Constitution.
Congressman Adam Schiff, the lead House impeachment manager, was also on the floor of the Senate today with his team arguing now for witnesses that House Democrats had declined to call or vigorously pursue. Former National Security Advisor John Bolton was never subpoenaed in the House, despite Democrats claiming to want his testimony; Democrats there opted not to use the courts to compel witnesses over which the Trump administration had claimed executive privilege. For some reason, though, Schiff thinks it is the Senate’s job to do his job for him.
Further, the House is still in session! If House Democrats wanted to subpoena or pursue administration witnesses, they could meet tomorrow and do that instead of demanding that Republican Senators – who never thought Trump should have been impeached in the first place – join their partisan crusade.
Bottom line: this is all a pathetic effort to use the gravest punishment in our political system for nothing more than collecting fodder for a few attack ads come this fall.
Scott Jennings, a CNN contributor, is a former special assistant to President George W. Bush and a former campaign adviser to Sen. Mitch McConnell. He is a partner at RunSwitch Public Relations in Louisville, Kentucky. Follow him on Twitter @ScottJenningsKY.
Jen Psaki: Democrats can feel good about these developments
The first day of the third Senate impeachment trial in history was not about the facts. There were moments completely devoid of accurate information. The White House lawyers made numerous false claims – including the easily debunked claim that House Republicans were not allowed into the secure hearing room during the impeachment investigation (they were) – as opposed to giving a strict defense of the President’s actions.
It is also highly unlikely that the view of whether or not the President of the United States should be convicted and removed from office changed simply on the basis of Democratic Rep. Adam Schiff being a far more credible messenger than the lawyers defending President Donald Trump.
But Democrats can feel good about three developments after round one.
First, while it may have been Senate Majority Leader Mitch McConnell’s intention all along, his announcement Tuesday morning that he was extending the time each side had to make its opening arguments from two days to three days was a small win for the Democrats. It gives more time in daylight and prime-time for the House impeachment managers to make their case to the American public.
Second, Democrats successfully pushed for a change to the initial rules laid out by McConnell – rules that would have required the Senate to vote on whether or not evidence from the House impeachment hearing should be entered into evidence in the Senate. It will now be entered automatically.
Third, putting aside the fact that any Senator who opposes the addition of evidence and testimony is exhibiting a real dereliction of duty, Republican Sen. Susan Collins reiterating that she will “likely” support having witnesses once both sides have made their opening arguments was another victory for Democratic leadership clamoring for a serious trial with evidence and witnesses.
Jen Psaki, a CNN political commentator, was the White House communications director and State Department spokeswoman during the Obama administration. She is vice president of communications and strategy at the Carnegie Endowment for International Peace. Follow her at @jrpsaki.
Frida Ghitis: Schiff’s opening day plan worked to perfection
If President Donald Trump and his Republican defenders thought the first day of the Senate impeachment trial would be a day to bore viewers with droll procedural debates, they could not have been more wrong. Though Tuesday was dedicated to setting the rules of the trial, Democrats had a smart plan, and it worked to perfection. The result was gripping and compelling – and harmful to the President’s case.
The Democrats’ lead impeachment manager, California Rep. Adam Schiff, used the debate about procedures to lay out the case against Trump, even as he battled against the rules set out by Senate Majority Leader Mitch McConnell – who has already announced he would coordinate all moves with the White House.
Not only did Schiff open by explaining the substance of the charges against the President in the two articles of impeachment, but he highlighted that “The misconduct set out in those articles is the most serious ever charged against a president.”
And then Schiff raised the stakes, essentially putting the Senate on trial. The most important matter before the Senate now, he explained, is not whether the President is acquitted or convicted, but “whether we have a fair trial.”
Schiff bolstered the gravity of the matter by showing video clips of the President himself declaring on various occasions that the Constitution gives him the right to do essentially anything he wants. If a President can obstruct his own investigation, if he places himself above the law, Schiff noted, that “makes him a monarch.”
Americans, Schiff said, “believe that the result [of the trial] is pre-cooked.” He exhorted senators to “prove them wrong … not by convicting the President, but by letting the House make its case.”
Trump’s lawyers provided a response that seemed more suited to Fox News than to a sober constitutional contest. Their strategy is not as absurd as it seems. In order for Trump to secure acquittal, he needs his base, the Fox News audience, to remain solidly behind him, so that any Senator who strays will feel he or she risks losing an election.
But the larger public may not be on the same page as the Fox audience. A recent CNN poll found nearly 70% of Americans want a real trial with new witnesses who did not appear before the House.
Nonetheless, Trump’s attorneys were dismissive of the proceedings. “Why are we here,” Trump’s lawyer Jay Sekulow – claiming it is all a corrupt ploy by Democrats. Schiff later responded, “I’ll tell you why we’re here – because the President used the power of his office … to withhold hundreds of millions of military aid … because he wanted to coerce Ukraine into these sham investigations of his opponent.”
It would take a miracle for Democrats to win in this trial, but Tuesday was a strong day for the team prosecuting the historic case against Trump.
Frida Ghitis, a former CNN producer and correspondent, is a world affairs columnist. She is a frequent opinion contributor to CNN, a contributing columnist to the Washington Post and a columnist for World Politics Review. Follow her on Twitter @fridaghitis.