Peter Wehner: Are Trump’s critics demonically possessed?
The other possibility is that Nadler could use this process as his means of establishing the limiting principles. During the Clinton impeachment, the House actually voted on four articles, passing only two. Allowing a relatively open article-drafting process has the dual benefits of letting Democrats submit to judgment a wider range of Trump’s misdeeds and also potentially reducing the partisanship of the affair. If some members want to vote on articles of impeachment on payments to Daniels, a few Democrats might team up with the Republicans to kill them, either in committee or on the floor—thereby establishing that the House majority isn’t hell-bent on impeaching Trump for anything and everything.
But this strategy also has a big risk—that of letting impeachment spin out of control. What if Democrats end up finding it hard to vote against articles and thus end up sending a raft of them over to the Senate? The task of the House, which has to present its case against Trump before the senators, becomes substantially more difficult if the articles involve diverse charges, arguable facts, or matters the president’s defenders can reasonably cast as legitimate exercises of the presidency’s broad powers.
Things get even murkier when the articles—whatever they end up including—land in the Senate chamber. The Senate’s rules for impeachment trials are an odd combination of the highly specific and the maddeningly vague. On the one hand, they specify the precise time of day the impeachment trial shall go into session the day after the House members appointed to manage the trial march into the Senate chamber and present the articles the House has passed (1:00 pm, in case you were wondering—unless it’s a Sunday). On the other hand, they don’t specify rules of evidence, leaving almost everything of substance initially to the judgment of Chief Justice John Roberts and ultimately to the judgment of 51 members of the body, the vote required to overrule Roberts on a wide variety of motions.
In other words, the course of the Senate trial will ultimately depend on two variables that are, at this stage, mysterious. The first is how Roberts understands his own role as the trial’s presiding officer. The rules permit the chief justice to be—if he chooses—quite activist in ruling on evidentiary motions and the like, subject to being overturned by a vote of the Senate itself. The rules also permit him to be—if he chooses—quite passive; he’s entitled simply to submit such matters to the vote of the body itself in the first instance. So one key question is what role Roberts himself thinks he should play.
The other question is whether Republicans will be as disciplined in the Senate as they have been in the House in opposing Democratic actions, or whether a small number of defectors will give Democrats the 51 votes they will need to prevail on evidentiary disputes—either if Roberts’s rulings are challenged or if he submits questions to the judgment of the Senate. In other words, if the initial question is the personality and attitudes of the chief justice, the ultimate question is which side has the votes to carry motions.