The fight over the impeachment rules, briefly explained

One of the biggest disagreements between Democrats and Republicans: when senators will decide whether to call witnesses.

The Senate impeachment trial opened Tuesday with its first major conflict: a fight over calling witnesses.

Republicans have emphasized that they can wait to decide this question until after the two sides offer opening arguments, which are expected to start Wednesday — the same timing they say was used during President Bill Clinton’s impeachment trial. In 1999, the Senate unanimously passed a rules resolution at the start and considered witness testimony later in the trial, ultimately approving it via a partisan vote.

Democrats, meanwhile, would like the vote to happen at the beginning of the trial to guarantee the consideration of witnesses. They note that this trial differs from Clinton’s because witnesses in the 1999 trial had already testified in prior depositions, unlike witnesses they’d like to call this time around who resisted appearing in front of the House.

In December, Democrats listed four witnesses they’d subpoena: acting White House Chief of Staff Mick Mulvaney, former national security adviser John Bolton, White House aide Rob Blair, and Office of Management and Budget official Michael Duffey. All four officials, who are believed to have direct knowledge about President Donald Trump’s handling of Ukraine aid, declined to testify in front of the House. More recently, Bolton has said he’d be willing to appear in front of the Senate, if subpoenaed.

Democrats say McConnell’s unwillingness to consider the witness question from the get-go is just one example of how Republicans are unfairly skewing this trial in Trump’s favor.

Tuesday’s fireworks began as the House impeachment managers and Trump’s defense counsel debated the rules resolution, which define the trial’s day-to-day schedule and procedures. It’s a measure that was first released by Senate Majority Leader Mitch McConnell on Monday. As part of the proposed rules, the prosecution and the defense will have 24 hours each over three days to make opening arguments, followed by up to 16 hours of questioning via written questions submitted by senators.

The resolution also specifies that the question of witnesses won’t be considered until the trial is well underway.

A key factor in the disagreement is that senators must approve the rules resolution before opening arguments can begin. Both sides dug in on Tuesday amid debate over McConnell’s proposed resolution, as Senate Minority Leader Chuck Schumer prepared to offer a slew of amendments.

“It is completely partisan, it was kept secret until the eve of the trial,” Schumer said at a press conference criticizing the GOP rules on Tuesday morning. “The McConnell rules seem to be designed by President Trump, for President Trump.”

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The rules need a simple majority — or 51 votes — in order to pass. Because of the GOP’s current majority in the Senate, McConnell will likely be able to advance his take on the measure with the backing of 53 members of his conference. Though some of Schumer’s amendments could wind up getting adopted, the central one about witnesses is not expected to pass at this point.

A handful of moderate Republicans have signaled they’ll eventually back the call for witnesses but aren’t expected to break from McConnell just yet.

Democrats are worried a late vote on witnesses could mean no witnesses at all

Given McConnell’s repeated emphasis on holding a speedy impeachment trial, Democrats have been eager to sort the witness question early, as considering it later could mean that no witnesses are called at all.

Democrats’ focus on the witness question is driven by a couple of factors: First, they anticipate that these witnesses will offer even more information about Trump’s willingness to withhold aid to Ukraine in exchange for an investigation into Hunter Biden and Burisma. Secondly, they are using this issue to raise concerns about the legitimacy of the trial and Republicans’ handling of it, in an effort to shape public opinion.

“It’s a cover-up, and the American people will see it for exactly what it is,” Schumer said in a statement over the weekend.

In a CNN poll conducted January 16-19, 69 percent of respondents — including 48 percent of Republicans, 69 percent of Independents, and 86 percent of Democrats — agreed that new witnesses should testify in the Senate trial. Following McConnell’s unveiling of the rules resolution on Monday, the term #MidnightMitch, a hashtag criticizing McConnell’s attempts to hold a rushed trial that’s doesn’t thoroughly weigh the evidence against Trump, began trending on Twitter.

Hammering the witness question is just one of several points Democrats are trying to make to highlight how skewed they see the trial becoming.

In addition to concerns about witnesses, Democrats are furious about the timing of the trial itself, which they see as hurried and compressed, especially when compared with that of the Clinton trial in 1999. One example: The McConnell resolution initially forced both the prosecution and defense to present their arguments over the course of two days, while the Clinton trial had no such limitations. Politico’s Burgess Everett reported that this time constraint has since been expanded to three days.

As his first proposed amendment, Schumer is also pressing to subpoena from the White House additional documents related to the Ukraine scandal. Democrats remain concerned about the way evidence is broadly treated by the Senate rules, which don’t say that the House’s evidence will automatically be admitted into consideration, either.

“Leader McConnell’s plan for a dark-of-night impeachment trial confirms what the American people have seen since day one: The Senate GOP Leader has chosen a cover-up for the president, rather than honor his oath to the Constitution,” Speaker Nancy Pelosi emphasized in a statement.

The drama is expected to reemerge next week

The question about witnesses will likely be settled by Tuesday evening, but it’s expected to reemerge again soon.

As part of the rules resolution, McConnell has committed to holding a vote on the subject as soon as early next week. Democrats will need the support of four Republican senators in order to advance a push for more evidence, including witness testimony. These discussions could also open the door for the GOP to request testimony from individuals like Hunter Biden, who could paint a potential Democratic presidential nominee in an unflattering light.

If the 47-member Democratic conference remains united, the four Republican votes will help it get to the required 51-vote threshold. “It will be whatever, after having heard initial arguments, 51 senators decide they want to do,” Sen. John Thune (R-SD) previously told the Hill.

Thus far, three Senate Republicans — Susan Collins (ME), Lisa Murkowski (AK), and Mitt Romney (UT) — have signaled interest in hearing from more witnesses, though they haven’t specified exactly which people they’d like to call. Sens. Lamar Alexander (R-TN), a moderate who’s retiring, and Cory Gardner (R-CO), one of the most vulnerable senators this election cycle, are seen as lawmakers who might provide that pivotal fourth vote.

Whether these senators wind up breaking from the Republican conference remains an open question. But given the unique roles they occupy, they have the power to shape one of the impeachment trial’s key aspects.