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Witnesses or no witnesses: How much of a sham trial will Republican senators put on?

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

Just as the House has the “sole power” to impeach, the Senate gets to conduct the trial. Since the House Republicans spent so much time feigning outrage about the supposed lack of due process, you’d think the Senate Republicans would be especially sensitive to appearances about due process.

But you’d be wrong because Mitch McConnell stopped caring about appearances a long time ago, shamelessly uttering the following into a television camera he knew was pointed at him:

“Everything I do during this, I’m coordinating with the White House counsel. There will be no difference between the president’s position and our position as to how to handle this to the extent that we can.”


So much for the oath McConnell will take to “render impartial justice.”

There’s a tension in how Republicans go about conducting their sham trial, because Trump wants a party with all the bells and witnesses and McConnell is smart enough to know that that would Go Badly. McConnell appears to want to run a two-week discussion group, sans witnesses.

Running a sham trial with no witnesses is less of a risk, the thinking goes, because we’ve already seen what the witnesses have to say — the ones disinclined to perjure themselves anyway.

But not calling witnesses poses risks too, because the Republicans have only a three-vote margin to play with and all 53 might not be as comfortable as McConnell with treating the process with contempt.

Trump wants Hunter Biden, Joe Biden, Adam Schiff, the “Whistleblower” called to testify — ratings to go with his exoneration. The legal problem with calling those witnesses, if this was a court of law, would be relevancy — each is only barely relevant, if that.

A good lawyer could make at least some bullshit relevancy argument, but if you’re going to reach that far to the edges of relevancy, it would be difficult to justify not calling any other witnesses, the ones who can speak directly to the charges in the articles. And the absence of Pompeo, Mulvaney, etc. would become all the more glaring. Can all 53 Republican senators face their constituents after conducting a fake trial where no evidence was produced?

To the extent House Republicans succeeded in casting doubt at the inquiry phase, they can thank the Chewbacca defense. But at the Senate trial, Trump is asking for affirmative defenses — the positive argument for why he’s innocent.

In sum, McConnell has three options:

— Upside, it will be boring and predictable; provides some cover for Republican senators on edge
— Downside: is a sham, begs narrative that Republicans know Trump is guilty; risks losing Republican votes

— Upside: exciting, Trump wants it
— Downside: is an even bigger sham, risks losing some Republican votes

— Upside: is less of a sham process, Trump won’t like it
— Downside: lots of bad testimony condemning Trump

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