By John P. Flannery

In the closing hours of the impeachment trial, there are several observations to be made. One is the fact that at least one Republican Senator, Mitt Romney, of Utah is going to vote based on the oath he took and convict Mr. Trump of abusing his power and obstructing congress’ effort to uncover his misconduct.

But there are others who ask how was the trial conducted. And the answer is to look to Judge Roy Bean for a more liberal model with witnesses and documents than the Senate relied on in this railroad.

Several lawyers, on their own, have looked at the proceeding and they think it will enable us to continue this discussion in the time that follows the faux trial.

THIS IS THEIR POST — MORTEM — it’s worth a read — because we’ll be talking about this trial going forward.

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Commentators and Tweeters have had their opportunity to justifiably cast aspersions on the results of the Trump Impeachment Trial and the failure of the Senate to hear a single witness or subpoena a single document from the Trump Administration during the course of the proceedings. There is little evidence available to defend the Senate and its conduct of this trial. It may be useful, however, to conduct a brief post-mortem in the interest of identifying the contributing causes for this disaster.

Senator Majority Leader Mitch McConnell is everyone’s favorite number one candidate for causing this disaster and there is much evidence to support this position. After all, the Majority Leader publicly repudiated his own impartiality and informed anyone who would listen that he intended to coordinate his activities with the accused President and his defense team. Faced with this threat, an obvious course of action for proponents of impeachment would be to move as many trial procedures as possible beyond the grasp of the Majority Leader and the majority of Senators (53) that he controls with an iron hand.

The Senate’s Rules governing impeachment trials (in place since 1868), do not carve out any particular role for the Majority Leader nor do they confer on him any special powers or prerogatives. https://biotech.law.lsu.edu/blog/SMAN-104-pg177.pdf Thus, if the Majority Leader were to propose a schedule for the trial or other procedures to govern the proceeding on behalf of the accused President such request could only be made in accordance with Senate Impeachment Rule XVI which provides:

​​All motions, objections, requests, or applications

whether relating to the procedure of the Senate or

relating immediately to the trial (including

questions with respect to admission of evidence or

other questions arising during the trial) made by the

parties or their counsel shall be addressed to the

Presiding Officer only, and if he, or any Senator,

shall require it, they shall be committed to writing,

and read at the Secretary’s table. (Emphasis added).

The House Managers would, of course, have the opportunity to object to the Majority Leader’s proposal and, more importantly, to offer a proposal of their own. Thereafter, under the Senate’s Impeachment Rules, it is solely the Presiding Officer, Chief Justice Roberts, who has the authority to both consider and determine how the trial will be conducted. He is to do so in accordance with the oath he has taken to impartially ensure that a fair trial is conducted in accordance with the Constitution and laws of the United States. Thus, Rule VII provides:

The Presiding Officer of the Senate shall direct all

forms of proceedings while the Senate is sitting for

the purpose of trying an impeachment, and all forms

during the trial not otherwise specially provided

for. (Emphasis added).

Rule V is in accord with Rule VII:

The Presiding Officer shall have power to make and

issue, by himself or by the Secretary of the Senate,

all orders, mandates, writs, and precepts authorized

by these rules or by the Senate, and to make and

enforce such other regulations and orders in the

premises as the Senate may authorize or provide.

(Emphasis added).

Thus, it is the Presiding Officer, not the partisan acts of individual Senators, that should control the proceedings.

Under these rules, the House Managers should have asserted themselves at an early stage by insisting that: (1) only the parties or their counsel may make motions with regard to how the trial is to be conducted; and (2) it is the exclusive role of the Presiding Officer to approve or disapprove trial procedures. The first major blunder by the House Managers was to fail to propose a set of reasonable trial procedures for submission to the Chief Justice under Rule XVIbefore the Majority Leader seized the initiative with his “resolution”. The Chief Justice would have been authorized to rule upon such a request under Rule VII. Instead, the House Managers sat by passively while the Majority Leader proposed his own one-sided and unfair set of rules (S.Res. 483) for approval by a vote of Senators. To no one’s surprise, his rules were “purportedly”adopted by a vote of 53–47. But, of course, rules governing an impeachment trial could only have been approved by the Presiding Officer under Rules V and VII following their filing by a party under Rule XVI. The legal status of the rules embodied in McConnell’s S. Res. 483 is, therefore,in substantial doubt. In any event, Senate proponents of impeachment, in an act of sheer futility,proposed some twelve amendments to the Majority Leader’s rules which were each tabled on a motion by the Majority Leader by a vote of — — you guessed it — — 53–47. While all this was going on, Chief Justice Roberts (as Presiding Officer) sat by passively as his prerogatives under Rules V and VII were usurped by the Majority Leader.

The Majority Leader’s usurpation of the Senate’s Impeachment Rules continued during the proceedings dealing with authorization for subpoenas to witnesses and the production of documents. As discussed above, applications for such subpoena’s could still have been filed with the Presiding Officer by any party or party’s counsel. The Presiding Officer has the power under the regulations to authorize such subpoenas. (Jon P. Flannery (@JonFlan), Twitter (Jan. 29, 2020, 12:14 PM), https://twitter.com/JonFlan/status/1222614053643788294.)

But the House Managers incorporated their efforts for subpoenas in resolutions to be voted upon by partisan interests (Senators) rather than being addressed by an impartial Presiding Officer. The House Managers could not muster four Republican votes to support the issuance of a single subpoena.

The Trump Impeachment Trial was, by any measure, a total fiasco. Who to blame? The Majority Leader’s usurpation of prerogatives belonging to the Presiding Officer under Rules V, VII and XVI is certainly the leading suspect. The legal status of S. Res. 483 — — which covers matters clearly within the exclusive authority of the Chief Justice serving as Presiding Officer — is in substantial doubt. The House Managers (or others who may have been calling the “legal shots”) are also blameworthy for failure to assert the rights of a party to propose trial rules or make applications for subpoenas under Rule XVI or to insist that only the Chief Justice has the authority to rule on such matters. Finally, the Chief Justice himself must be held accountable for failure to exercise his authority, as provided by the applicable Rules, “by himself” to act at crucial times for the good of the country even though the actual parties before him may have failed to file a motion or application to him invoking his authority.

While, in the end, the outcome of a President escaping impeachment may have been the same, the prospects for a real trial were doomed from the start.

Paul D. Cullen, Sr.

Gregory R. Reed, &

Daniel Toomey