It was only a couple hours into the first day of arguments in the Senate impeachment trial of Donald John Trump when Adam Schiff, the lead House manager prosecuting the case, summed up the day’s proceedings. The Senate’s proposed process for the trial, he said, was simply “ass-backwards,” requiring the House to present its case before considering whether to call witnesses and demand White House documents that Trump has been withholding.
Schiff’s edgy remark caused a jolt in the chamber. Senators who had been nodding off or staring down at their legal pads suddenly looked up. But it turns out that you can swear like that on the Senate floor. Schiff wasn’t even the first person to use the phrase, although David Vitter, the former senator from Louisiana, got in trouble back in 2008 when he did, and he had the remark stricken from the official record. Whether or not it was appropriate, in a stodgy institution that does not even allow reporters to wear denim in its hallowed chamber, Schiff’s remark certainly was incisive and to the point.
But after many hours of debate on Tuesday afternoon and evening, the Republican rules proposed by Senate Majority Leader Mitch McConnell finally prevailed, in a party-line vote, as Schiff knew they would. Backwards it will be. A trial may not be a trial without any testimony, but that is how the Senate will proceed with this one. “Have you ever heard of a trial that doesn’t have evidence? That doesn’t have witnesses?” Zoe Lofgren, another one of the House managers, asked.
The first day of the Senate trial did not definitively answer those questions, which, under McConnell’s rules, will simply be deferred until sometime next week, at which time there may or may not be four Republicans who choose to join with Democrats and call for the blocked Trump Administration witnesses to testify. But Day 1 was not significant because McConnell managed to win on the rules. He had the votes, and everyone knew he would win. Tuesday was a remarkable day nonetheless, and the real news was what the lawyers for Trump finally had to say about the case.
Ever since the Trump impeachment inquiry began, in September, the White House has declined to offer a formal defense, if one excludes all-caps tweets from the accused. But refusing to participate is no longer an option now that the Senate trial is actually happening. Trump’s lawyers not only showed up but very much showed their hands, offering a defense of Trump that was very much like the President himself: loud, intemperate, personally nasty, ad hominem, factually challenged, and often not even bothering to have a tenuous connection to the case at all. When the White House counsel Pat Cipollone and Trump’s personal attorney, Jay Sekulow, addressed the Senate, the volume went up in the chamber; the tone changed. As we watched from the press gallery, it was as if we had become the audience in an entirely different play. Why should there be no witnesses or documents produced in the trial? Listening to Cipollone and Sekulow, it was hard to tell.
They barely used the word “Ukraine” or even bothered to talk much about Trump’s “perfect” phone call with the Ukrainian President, Volodymyr Zelensky, for that matter. They mentioned the Mueller investigation—repeatedly—though that is not a subject of the impeachment articles. They made false claims, including that Republicans had been excluded from the depositions in the House “basement” that were taken by the House Intelligence Committee. Cipollone attacked Schiff by name, in personal terms, within a minute of beginning his first remarks at the trial, which was striking, if not entirely surprising, given that Cipollone is representing Trump, whose campaign is currently marketing on its Web site thirty-four-dollar T-shirts mocking Schiff as a “Pencil-Neck.”
The House managers came prepared on Tuesday with digital slides and graphics. They listed witnesses they’d like to call, such as the former Trump national-security adviser John Bolton, who called the Ukraine scheme a “drug deal,” and documents they’d like to subpoena. They presented video clips, including one of President Trump that they played twice, in which he argued that the Constitution gives him the right to do whatever he wants. But Trump’s legal team did not bother with anything like that. Cipollone and Sekulow had no video clips, no slides. They did not have to. They had the votes.
What was it like in the Senate chamber turned courtroom on the first day of a trial whose outcome we all presume to know in advance? The senators, whether you call them the judges or the jury, looked like they will have a hard time making it through the ordeal. Within an hour or so, they were fidgeting in their seats. There was yawning, and the Washington Post claimed that Jim Risch, of Idaho, was the first senator to be caught snoozing. On the Republican side, Tim Scott, of South Carolina, and Ben Sasse, of Nebraska, smiled and laughed as they passed notes back and forth. Senate Minority Leader Chuck Schumer slumped over in his seat, although Mitch McConnell, just across the aisle from him, mostly sat up straight as an arrow. He was practically unmoving, a statue. Only once did I see the faint hint of a smile. How did he do it? Was he counting to a million?
There were many note-takers. On the Democratic side, Bob Casey, of Pennsylvania, started scribbling minutes into the trial and kept at it. On the Republican side, Marco Rubio was one of the few who appeared to be reading through the large binder of trial briefs that had been placed on each senator’s desk; he spent hours flipping through pages and writing down notes. Later in the afternoon, right across from Rubio, his fellow Presidential candidate of 2016, Ted Cruz, of Texas, pulled out a yellow highlighter and started reading, too.
But the note-taker I couldn’t stop looking at, the most assiduous one of all, was Susan Collins, of Maine. Collins, in a trim navy-blue suit and a silver necklace that glimmered in the room, which was filled with men in gray suits, sat next to Lisa Murkowski, of Alaska, in the row right behind McConnell. They are two of the only swing votes in the chamber, votes that are probably irrelevant when it comes to the ultimate outcome of the trial, given that no one believes that there are twenty Republicans, or anything like that number, who would vote to convict the President. But Collins and Murkowski matter a lot more when it comes to the question of what kind of a trial the Senate will conduct, given that the rules require only a simple majority of senators to determine the procedures. Collins and three other Republicans can hold up the whole thing if they want to. They can force witnesses to be called, and they can set the hours for the sessions.
On Tuesday afternoon, reporters learned that Collins had already flexed her muscle with McConnell, complaining about the plans he released on Monday evening to force House managers to present their case in twenty-four hours, compressed into just two days—raising the spectre of bleary-eyed senators sleeping through presentations in the dark of the night. After Collins objected, McConnell revised the proposed rules and gave each side three days, rather than two, to present arguments.
It wasn’t much of a concession, but it appeared to be enough to wrangle Collins and any other wavering Republicans back in line, at least for now. By late afternoon on Tuesday, Schumer’s first amendment, to compel documents that the White House has withheld, failed on a party-line 53–47 vote. Nearly a dozen other 53–47 votes followed, until almost 2 a.m., as Schumer offered amendment after amendment, designed to put senators on the record as refusing to subpoena individual witnesses and documents. “I knew it was coming, but hearing every single Republican vote against evidence was a gut punch,” Chris Murphy, a Democrat from Connecticut, tweeted, during the short break after the first vote, when he was allowed out of the chamber and brief access to his phone.
Collins, having voted with McConnell, returned to the chamber after that first vote and resumed her unflappable note-taking. Eventually, after midnight, she voted with the Democrats on a single one of Schumer’s procedural motions, his tenth, to give senators more time to file responses to motions. Her office released a statement saying that, later in the trial, after the arguments, she would probably vote in favor of additional witnesses and testimony. Back in 1999, when Bill Clinton was on trial in the only other Presidential impeachment trial of our lifetimes, Collins was one of just five Republican Senators to break with their party and vote to acquit Clinton. Today, she is the only one of those five Republicans who remains in the Senate. Will she buck her party once again? On Day 1 of Trump’s trial, I learned only that Susan Collins was diligent and attentive and right-handed. I have no idea how she will vote.
This piece was updated to include details about votes that occurred early Wednesday morning.
