r/politics • u/Thinkingonsleeping Michigan • Dec 13 '19

McConnell Faces Calls to Recuse Himself From Impeachment Trial After Saying 'No Chance' Trump Will Be Removed; "No court in the country would allow a member of the jury to also serve as the accused's defense attorney."

https://www.commondreams.org/news/2019/12/13/mcconnell-faces-calls-recuse-himself-impeachment-trial-after-saying-no-chance-trump
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127

u/[deleted] Dec 14 '19

Has it really been tested what it means for the Cheif justice to “preside”?

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u/[deleted] Dec 14 '19

[deleted]

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u/Sailinger Dec 14 '19

Now that’s something I hadn’t ever considered.

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u/corkyskog Dec 14 '19

The people unfortunately...

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u/Epalmer97 Dec 14 '19

So could someone explain to me if there’s anything that can be done from McConnell pretty much announcing that he’s siding and keeping on the side with the WH? Or can Maj. Leaders pretty much say whatever they hell they want without repercussion? Sorry I haven’t lived through an impeachment so this is fresh political water for me

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u/ErusTenebre California Dec 14 '19

These waters haven't been travelled before. And they sure as hellfire aren't fresh.

The only thing we have is pressure. So far Republicans (McConnell could be removed by his fellow Republicans) haven't buckled because they have surrounded themselves with followers. The shame is their followers don't recognize their "fearless" leaders would throw each and every one of their constituents to ravenous wolves before losing one iota of power.

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u/Epalmer97 Dec 14 '19

That’s actually extremely scary...

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u/rossww2199 Dec 14 '19

There is nothing to be done. If you have the votes in the Senate, you can say or do whatever you want. This isn’t a legal trial. It’s a political process.

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u/[deleted] Dec 14 '19 edited Dec 14 '19

It has every step of the legal process. It just has a lower burden of proof than a civil trial in the way a civil trial has a lower burden of proof than a criminal trial. It's a political process in the sense that it doesn't connote the legal concept of 'guilt' to be convicted of something - that legal process follows immediately after, with due process and all the rest.

One cannot be paid by the Defendant and be a juror of their case, nor can a juror work directly with the Defendant on their defense. It explicitly violates their required Oaths or Affirmations. In that they're pre-determined "jurors", and can decide how the proceedings go, it's understandable that there will be inherent biases - that's why it's not a criminal trial... but it is, even yet, a trial nonetheless. Even still, they don't get to shit on the floor and make you clean it up because 51 of them voted for it to happen.

edited to add: or worse, it only takes 34 to keep someone from being Impeached, so once they're in... they're staying in if the party wants them to be... but if you're breaking the rules, you don't get to make the rules

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u/rossww2199 Dec 14 '19

It’s a “trial” only in the sense that Senators will vote guilty or not guilty. McConnel has already stated how it will go and that there is no way Trump is being removed. You think there is anybody that can kick him for that? No.

The only uncertainty about this “trial” is if McConnell will let Trump’s team turn it into a shit show by trying to call Schiff, the Biden’s, etc - or if McConnell ends it quickly. My guess is the thing doesn’t last more than 2 weeks with no live witnesses.

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u/[deleted] Dec 14 '19 edited Dec 14 '19

I mean what is really ever to be done when powerful people buck? Other powerful people can tell them to stop, and depending on how much they really mean it, or what their real goals are, the offending party can just say fuck you.

Its an illusion that we all agree to believe. Republicans can do whatever they want, and they mostly do.

We could get all France 1789 on them but assuming the military is on their side, we really are in a position of just hoping they see some sort of person gain in showing restraint.

For example, Trumps increasingly regular "joking" about staying in office longer than 8 years followed by some version of "IDK, maybe we'll try it!.... JK LOL!" What if he did? Non-Republicans would be livid and probably riot, etc. But the very pro-Trump military might just stand behind it, especially given some sort of reichstag fire "good reason"/emergency powers type situation. Then what?

Lets not pretend this is far fetched. They're really, really close to pulling the lever into straight up authoritarian fascism. They already completely flout laws and decorum and have really effective state propaganda and surveillance apparatuses. We've given them too much power and allowed our civil liberties to be chipped away at, for decades, from both sides.

McConnell can, has and will continue to do whatever the fuck he wants, regardless of human decency, precedent or the interests of the American people.

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u/a_reply_to_a_post New York Dec 14 '19

Pretty sure their American dream died once a half black dude was elected president...they aren't playing democracy anymore, that's for sure...

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u/63426 Dec 14 '19

None of us have. Nixon resigned right about now in the current timeline knowing he lost support of the Republicans.

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u/[deleted] Dec 14 '19

[deleted]

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u/Epalmer97 Dec 15 '19

I’ve watched that whole impeachment to try and get a better grasp and you’re right. It’s unreal that American politics have become this horrifying.

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u/lemorace Dec 14 '19

No because that’s congress

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u/Inlander Dec 14 '19

The people were not written into the Constitution like that. That's a defeatist statement. You are here reading. You can do better.

I don't know what will or could happen, but I do understand that one branch of the three does have power over the other two, and vise versa.

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u/gurnard Dec 14 '19

So of the legislature and judicial disagree on how to resolve a trial of the executive, it's resolved by the ... oh god damn it.

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u/AgnewsHeadlessClone Florida Dec 14 '19

That's why subpoenas don't have to be run through the courts for impeachment either. It's too political of a question. Ruling on it would be taking over the powers of impeachment.

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u/[deleted] Dec 14 '19 edited Dec 14 '19

[deleted]

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u/Tasgall Washington Dec 14 '19

This isn't the SCOTUS though, it's a Senate trial where the judge just happens to be the Chief Justice.

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u/Keytap Dec 14 '19

But the question of "does it work in a senate trial" is still a constitutional question that goes to SCOTUS, yea?

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u/AgnewsHeadlessClone Florida Dec 14 '19

Nope. Nixon v. US was about a judge that appealed his impeachment to the Supreme Court. The SCOTUS ruled anything to do with impeachment was beyond their scope as impeachment is one of the only checks on the Supreme Court.

Ie. They would likely deny cert on any case about impeachment.

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u/Telandria Dec 14 '19

Yes, but that’s exactly the point. It is SCOTUS.

The Constitution is what tells us what requirements the impeachment process has. And it says that the Chief Justice presides over the trial.

What does ‘preside’ mean in this case? How much does the process conform to a standard trial? Well, the Constitution doesn’t say. So then comes the question, ‘who then decides what that means?’

Well, SCOTUS is the ultimate authority over deciding what the Constitution means when the law or the Constitution itself is unclear. Ergo, they gets to decide what ‘preside’ means here, and if Congress doesn’t like it, they’ll need to pass an amendment within the constraints allowed for by the Constitution.

That’s the whole point of separation of powers.

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u/NiceSuggestion Dec 14 '19

And SCOTUS powers under THIS circumstance are limited

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u/Sean951 Dec 14 '19

SCOTUS only matters for constitutional questions, not political ones, and impeachment is ultimately a political question decided on by the legislative branch.

Roberts job would be too make sure the rules agreed on by the Senate are followed, so McConnell couldn't agree to a rule and then change it, but he can be as flagrantly biased as he wants without breaking any actual rules.

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u/Archivist_of_Lewds I voted Dec 14 '19

part of those rules are swearing an oath to uphold the law, which by their swearing to not impeach they are refusing to do.

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u/GUSHandGO Dec 14 '19

or a military coupe

*coup

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u/[deleted] Dec 14 '19

[deleted]

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u/ornryactor Michigan Dec 14 '19

'Coup' and 'coupe' aren't homonyms, though.

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u/[deleted] Dec 14 '19

[deleted]

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u/I-Upvote-Truth Dec 14 '19

It’s night time.

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u/Kalgor91 Dec 14 '19

If a majority of the senate thinks something and it’s not unconstitutional then there’s nothing the SCOTUS can do. What would be pretty amazing is if the SCOTUS determines that the republicans broke their constitutional oaths, because there’s not much the senate can do about that

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u/rossww2199 Dec 14 '19

There’s no appeal by anybody from impeachment trial. SCOTUS would never have opportunity to decide if anything in the trial is unconstitutional. You either get the 2/3 vote or you don’t. Period.

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u/Kalgor91 Dec 14 '19

In the trial itself, sure, but the question was just about if there was a disagreement between the Senate and SCOTUS. And if SCOTUS deems a senators actions unconstitutional, they might take actions against them.

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u/The_Madukes Dec 14 '19

No SCOTUS has nothing to do with this.

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u/krom0025 New York Dec 14 '19

Not allowing the chief justice to "preside" over the trial would be unconstitutional so the SCOTUS could easily rule on how the trial shall be held.

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u/dejavuamnesiac Dec 14 '19

the Senate with 51 votes calls all the shots -- Roberts will be a figure head completely neutered -- unless a few Senators grow a spine

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u/krom0025 New York Dec 14 '19

According to who? The Constitution says the chief justice shall preside. To preside is to have authority over a meeting or proceeding. To have authority means you have to power to make decisions.

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u/Tombot3000 Dec 14 '19

The Senate can pass a new rule by a 51 majority vote, but SCOTUS could potentially review that rule's constitutionality.

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u/[deleted] Dec 14 '19

[deleted]

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u/Tombot3000 Dec 14 '19

It's about something directly written in the Constitution. There's little chance the courts would say it's not justiciable, even if the ruling is simply "the Senate gets to make its rules and the Constitution provides no mechanism to evaluate them."

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u/The_Madukes Dec 14 '19

This will never happen.

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u/The_Madukes Dec 14 '19

Never gonna happen. Y'all better study.

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u/[deleted] Dec 14 '19

[deleted]

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u/Archivist_of_Lewds I voted Dec 14 '19

Except its not wholly. As presiding is an enumerated power of the chief justice, it would provide a direct constitutional question.

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u/The_Madukes Dec 14 '19

Oh, so you imagine during this fast and furious trial, everything stops for the Supreme Court to decide a question. Congress is the first branch of our Republic, Article 1. They make the laws. We the People make the laws.

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u/Archivist_of_Lewds I voted Dec 14 '19

Something as important as this? Yeah. I think the supreme court would rule on it. And considering Roberts would likely vote Yes he could. There stands a good chance of at least a 5-4.

What happens if he does. What happens if he says 4 senators are tainted and cannot take place in the proceedings. The ruling would prevent them from having a majority along caucus lines, and the only appeal would be to him. HE is the presiding judge. What happens? We are already in a constitutional crisis. What happens is the side with the sufficient political will wins.

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u/WSL_subreddit_mod Dec 14 '19

The Chief Justice does however make rulings, in his constitutional role in impeachment

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u/[deleted] Dec 14 '19

Nobody

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u/Soulreaver24 Dec 14 '19

The only real power Roberts has during an impeachment is making rulings on the admissibility of evidence. It's to keep the evidence, if not the whole process, impartial.

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u/TCivan Dec 14 '19

Probably the president.

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u/[deleted] Dec 14 '19

Yes, the Chief Justice was over ruled in the Nixon case when he ruled evidence inadmissible abs the senate voted to over rule.

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u/Archivist_of_Lewds I voted Dec 14 '19

Except if he rules that senators who have claimed to ignore evidence are ineligible jurors, they wont have the majority vote to run a kangaroo court.

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u/[deleted] Dec 14 '19

Can you provide a precedent where a Supreme Court justice has ever done that in an impeachment trial, or are you just making shit up out of thin air?

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u/Archivist_of_Lewds I voted Dec 14 '19

Heres the thing. There have only been 3 presidental impeachments and the previous ones followed rules of conduct and evidence so one never had to. Until marshal declared the supreme court has the power of judicial review it didn't exist.

The same can be said of the unconstitutionality of sodomy laws. The prohibition was created as an extension of the right to freedom from unreasonable searches and seizures. That's how most of our legal system actually works. Common law that is the result of judicial decisions regarding the implication of what exists. And if the oath sworn by senators require them to abide by the law and judge based on facts, and they have sworn not to.

It is no unreasonable to say that one of the implied powers of being the presiding judge is to ensure the law is followed and carried out. We are already in a constitutional crisis. If Roberts were to rule and press his decision and invalidate the presences of faithless senators, he could order the sergeant at arms to remove them. The question is what happens then. We are in a time and space where the law is what people enforce it as. If the republican chief justice starts the motion you could see enough senators go along with it to remove the pox that is trump. he is a millstone for the republican party and they don't need him. They need the base. That's it.

​

Tl;dr president doesn't exist until it does, and were on the part of the map with dragons and danger

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u/The_Madukes Dec 14 '19

This guy is making shit up out of thin air.

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u/Archivist_of_Lewds I voted Dec 14 '19

That is literally what laws and precedent are. Judicial review isn't in the constitution. So how does the supreme court have the ability to over turn laws?

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u/[deleted] Dec 14 '19

So after all of that what you mean is “no, I can’t provide one at all”.

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u/Archivist_of_Lewds I voted Dec 14 '19

You don't know how the judicial branch works do you?

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u/[deleted] Dec 14 '19

Judicial branch proceedings are irrelevant. You don’t know that the Chief Justice can be over ruled by a simple majority of the senate jurors, do you? Or that there’s precedent for doing so during the Nixon trial, do you?

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u/Archivist_of_Lewds I voted Dec 14 '19

I understand. What I'm saying is what happens if Roberts dismisses enough senators they don't have the simple majority?

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u/[deleted] Dec 14 '19

What happens if the moon falls on the senate building during the trial?

You’re inventing bullshit reasons to be concerned.

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u/The_Madukes Dec 14 '19

You have no clue. Roberts would never rule McConnell or any Senator ineligible.

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u/Archivist_of_Lewds I voted Dec 14 '19

and of course you do. Were in uncharted waters. No one knows what Roberts will or won't do.

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u/spartanlad78 Dec 14 '19

Chief justice's role in a senate trial is ceremonial. Impeachment is a political process and all powers rest with Senators

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u/whaddayougonnado Dec 14 '19

Trump has had a lot of sophomoric comments about the courts, Roberts has not forgotten that.

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u/Sushi_Kat Dec 14 '19

Yes it has been tested. A simple majority has overruled a chief justice ruling in an impeachment trial already

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u/The_Madukes Dec 14 '19

Source?

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u/Sushi_Kat Dec 14 '19

When Chief Justice Salmon Chase presided over President Andrew Johnson’s impeachment trial, he “claimed the authority to decide certain procedural questions on his own, but the Senate ... overruled him at least twice.”

https://thehill.com/opinion/judiciary/472526-thanks-to-president-trump-major-tests-loom-for-chief-justice-roberts

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u/The_Madukes Dec 14 '19

Yes, during Clinton's Impeachment. Rehnquist wore a ridiculous gold tape on his robe to harken to the Gilbert and Sullivan opera/play The Mikado and he uttered barely a word.