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Senate impeachment trial shaping up more to be a motion to dismiss than a trial

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

Whatever the senate impeachment trial winds up being, it appears it will resemble a motion to dismiss more than a trial, since McConnell evidently has 51 votes for a process that won’t permit a vote on witnesses until after the two sides manage to pack 24 hours of argument into 48 hour terms.

So they’ll be arguing while everyone is asleep, shortening the opportunity for public debate, giving senators like Collins, Murkowski, and Romney cover to vote against witnesses and new evidence when the motion to dismiss period is over.

That’s not to say the whole travesty doesn’t bear watching. Everyone complicit needs to be held to account.


Here’s just the timeline…


McConnell’s resolution does not specifically allow for witnesses to testify, and Democrats promise to try to guarantee witnesses, documents and other evidence to be part of the trial. Any debate on these topics must be conducted in closed session under the Senate’s impeachment rules.


After the Senate adopts the organizing resolution, which itself will consume Tuesday, the legal teams for Trump and the House on Wednesday will be able to offer motions on housekeeping questions involving matters other than evidence or witnesses. In theory, Trump could move to dismiss the case altogether, but that’s unlikely.


House impeachment managers, led by Rep. Adam Schiff, D-Calif., will have 24 hours — packed into only two days — to make their opening arguments. The White House will have the same amount of time to respond, though Trump’s lawyers may not use it all.


Sixteen hours will be reserved for senators to ask questions of both legal teams. Those questions will be posed in writing through Chief Justice John Roberts.


The key question of whether to call witnesses and which ones to call will be considered with up to four hours of argument by the White House and House Democrats. The Senate may go into closed session to debate further and then have a series of votes. If witnesses are called, they will be deposed before any potential live Senate testimony.


After the Senate finishes its deliberations, it will vote on the two impeachment articles, which requires a two-thirds vote to find Trump guilty and remove him from office. Trump is likely to be found not guilty.

UPDATE: Debate begins now on the impeachment rules.

Cipollone reiterating the rules as McConnell wrote them. Stilted delivery. Weird downward camera angle for speakers (senate controls cameras, not TV).

Schiff summarizing facts, attacking the White House’s brief that argued even if facts offered are true, it’s still not impeachable conduct.

Schiff’s meandering opening finally get to the point — whether McConnell’s rules are fair. If Prosecution/House cannot introduce witnesses, “it is not a trial at all.”

Making fairness pitch to “American jurors.”You will never know the full scope of the President’s misconduct” (if you vote to permit trial w/o witnesses/documents).

I’m seeing that McConnell gave the 24 hours three days instead of two. That’s at least good news. Which can only mean that he didn’t have 51 votes for two days.

Jay Sekulow sounds like he’s reading from the middle of a book instead of the beginning and many of the things he’s saying are factually dubious. Sekulow also looks like he’s practiced shouting b/c he’s playing to an audience of one.

I’ve listened to Sekulow argue before SCOTUS before and maybe my memory is wrong but he didn’t sound anything approaching strident.

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