(Bloomberg Opinion) -- Senate Majority Leader Mitch McConnell’s proposed rules for the impeachment trial of President Donald Trump, expected to be adopted today, would allow a bare majority of the Senate to exclude all the evidence collected by the House of Representatives. That’s an outcome being urged by Trump’s lawyers, with whom McConnell has pledged to coordinate. And it could allow the Senate to reject the impeachment for lack of evidence.
The provision sounds deceptively simple. After the House files the record of its evidence with the Senate, “Materials in this record may be admitted into evidence by motion.” But compare this to the rules the Senate used in Bill Clinton’s impeachment trial, on which McConnell’s rules are supposedly modeled: After the House files its record with the Senate, “Such record will be admitted into evidence.” No separate Senate vote was required. The House evidence was admitted automatically, without a debate or a vote.
What explains the difference? Trump’s lawyers’ legal strategy. In their trial memo, Trump’s lawyers have advanced the audacious argument that the testimony and documents gathered by the House were obtained illegitimately, and therefore must not be considered by the Senate.
The lawyers’ reasoning is that subpoenas were issued by House committees before the House as a whole voted to authorize the impeachment inquiry. That is not a basis for excluding the evidence, and the House did eventually vote to authorize the inquiry. But Trump’s lawyers, using language almost identical to that found in an Office of Legal Counsel memo dated January 19, say that the House vote did not retrospectively authorize the subpoenas, because it did not specifically say it was doing so.
This argument is legally implausible. But that isn’t the point. The point is that Trump’s lawyers want the Senate to act like a court and exclude the House’s evidence on the theory that it was illegitimately obtained — the way a judge would exclude evidence improperly obtained by police in a run-of-the-mill criminal case.
The point of McConnell’s plan to vote on admitting the evidence is to give the Senate the chance to accept that argument — and reject all the evidence gathered by the House — with a simple majority vote. At a minimum, the debate would allow Trump’s lawyers to attack the House inquiry once again. It also gives the Senate the chance to exclude the evidence from the House from its record — and its consideration.
What would follow would be a motion for the Senate to reject the impeachment inquiry for lack of any evidence. That could be a boon to Republican senators looking for an excuse to vote against removing Trump. Instead of saying he wasn’t guilty of high crimes and misdemeanors, they could claim to be saying only that there was no evidence — because the House did its job wrong. They could dismiss the case on a technicality.
Trump’s lawyers likely don’t know it, but there is a kind of precedent for this impeachment trial strategy in the UK. At the impeachment trial of Warren Hastings, former governor general of Bengal, Hastings’ defenders in the House of Lords insisted on excluding that all evidence that would not be admissible in a court of law. Edmund Burke, the lead House of Commons prosecutor, argued powerfully that the Lords were not an ordinary court and that an impeachment trial was not an ordinary legal proceeding. But Burke lost. The House of Commons voted to exclude much of the evidence against Hastings. And although the trial dragged on for a total of seven years, Hastings eventually escaped conviction. The evidentiary exclusion gambit had done its work.
In practice, Senate Republicans may not have the chutzpah to vote to ignore all the testimony gathered in the House (and aired on TV to the public). But it’s well worth noticing that McConnell, working hand in glove with the Trump White House, is aiming to give them the opportunity. The trial hasn’t even begun, and the trial gamesmanship is already starting.
(A few hours after this column was published, the Senate agreed to change the proposed rules so that the House's evidence would be submitted automatically.)
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Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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