Transcript: Awaiting a Senate Trial

The full episode transcript for Article II: Inside Impeachment, Awaiting a Senate Trial.
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A thunderstorm passes over the Capitol on July 11, 2019.Bill Clark / CQ-Roll Call file

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Article II: Inside Impeachment

Awaiting a Senate Trial

Julia Ainsley: From NBC News, this is Article II: Inside Impeachment. I'm Julia Ainsley, NBC News correspondent covering the Departments of Justice and Homeland Security, sitting in for Steve Kornacki. Today is Monday, December 30th, and here's what's happening.

Nancy Pelosi: When we proceeded with our going to the next step, we put forth our resolution that described how the process would be conducted. We had hoped to get some signal from the Senate on that. We may or may not.

Ainsley: It's been 12 days since the House of Representatives approved two articles of impeachment against President Trump, but a trial can't get underway until the articles are moved out of the House and into the Senate. And that hasn't happened yet. You just heard Speaker Pelosi say she wants more information from the Senate before the articles are transmitted.

Mitch McConnell: You know, I'm not anxious to have this trial, so if she wants to hold on to the papers, go right ahead.

Ainsley: Congress hasn't returned from recess yet. But in the meantime, some senators are weighing on what a trial should look like.

McConnell: Everything I do during this, I'm coordinating with White House counsel. There will be no difference between the President's position and our position as to how to handle this.

Lisa Murkowski: Well, and in fairness, when I heard that, I was disturbed. A Senate impeachment trial is different than what we know in a criminal trial.

John Kennedy: I think Senator McConnell is entitled to his opinion and his approach. So is Senator Murkowski. So is Senator Schumer. So is Senator Blumenthal. If you look at the Constitution, the standing rules of the Senate, what you'll see is that when it comes to impeachment, the rule is that there are virtually no substantive rules.

Ainsley: So today on Article II, we look ahead to the next phase of this impeachment. The likely next phase, that is. What can the country expect from an impeachment trial in the Senate? Frank Thorp is an NBC producer and reporter covering the Senate. He'll actually be in the room when and if the Senate trial happens. Frank, thanks so much for joining us again on Article II.

Frank Thorp: Thanks so much for having me.

Ainsley: So, Frank, right now impeachment is in limbo, as I understand it. Is there a chance that the Senate trial won't actually happen?

Thorp: I mean, hypothetically, there could be no trial. Speaker Pelosi needs to send the articles of impeachment to the Senate for the Senate trial to begin. There's really no precedent for the Senate to just begin an impeachment trial without the House actually sending those articles over.

So until that gets done, we're pretty much at a standstill. But in reality, Mitch McConnell, the Senate majority leader, Republican from Kentucky, he said that he has plenty of stuff to do in the meantime. So if there's a delay in the trial, McConnell has said he's pretty much fine with that.

Ainsley: Okay. So assuming the articles of impeachment are in fact transmitted to the Senate, what does the Constitution say about how the Senate trial should work? What are the rules here? Are there rules here?

Thorp: So there are some rules that are established in the rules of Senate, but the Constitution is pretty vague on what the procedure is. And in this situation, obviously there's not been very many impeachments in the past. So they really don't have that much to look at. But there are also other things that are kind of codified in the rules that they would probably follow. I mean, at the beginning of the trial, they'll say, "Hear ye, hear ye"--

Archival Recording: Hear ye, hear ye, all persons are commanded to keep silent on pain of imprisonment while the Senate of the United States is sitting for the trial of the articles of impeachment.

Thorp: Against President Donald Trump. That is technically in the rules. I mean, that would be there. That's not part of the Constitution though. That's part of the Senate rules. And, again, that can change. So you have stuff like that. You also have, I mean, the fact that senators won't be able to stand up and ask their own questions. They would submit those questions in writing.

And those questions would then be asked to either the managers, or the defense, or any potential live witnesses. Senators won't be talking. They'll be sitting there, basically silently listening to the trial. They won't be able to use their phones. That's just a regular Senate rule. They didn't have cell phones back when they drafted the Constitution. So I think that because it's such a rare thing to happen on the Senate floor, they're gonna have to make up a lot of this stuff as they go.

Ainsley: So when we're all watching this on TV and we're trying to figure out who we should be paying attention to, you're actually going to be in the room. And you know these players better than anybody. Can you just flag for us who are the key players in this trial and what are their roles?

Thorp: Yeah, there's the managers. The House managers are gonna be the members of the House of Representatives that Speaker Pelosi designates to come over and lay out the case against the President. You know, there's also the White House counsel, the defense. The way that it will work is that the managers will lay out their case and then the White House counsel will then lay out their arguments of why the President should not be convicted. They will be key players in this.

Chief Justice John Roberts is gonna be a very major player as well, considering that he will be presiding over this trial. This is a very unique process. The pomp and circumstance of an impeachment trial is unlike any other. And having the Chief Justice preside over the Senate, it just doesn't happen. The Vice President, Vice President Pence, is technically the president of the Senate. He can come in and break a tie for any kind of regular vote. The Vice President won't have any role in this.

The last group of people that we're really keeping an eye on here is that group of Republican senators, particularly the moderate senators, who have said that they really want to see a fair trial, an impartial trial, who have been not so quick to come to the President's defense during this entire process in the House.

It's really going to be them who are going to dictate how this trial goes in terms of whether or not there are witnesses and basically how the trial goes in general. Whether or not they feel like they've heard enough and they can end it or whether or not they want to hear more.

And so Leader McConnell is going to have to be very closely in contact with them. And to be honest, you know, Democratic Leader Chuck Schumer is probably gonna be communicating with them as well in an effort to see if they can get them on their side. The majority in the Senate is very, very slim. 53 senators are on the Republican side. If Democrats can pull four of them over to their side, they can do a lot with how they want this trial to go.

Ainsley: Wow. So there's this really small group of people who really matter in this, those moderate Republicans that you talked about. Does that mean those people might actually switch? Or that they may just dig their heels in on the process side of things? What are you predicting in terms of moderate Republicans?

Thorp: Well, I would say that in terms of digging in on the process, we have a situation where, you know, Senator Lisa Murkowski (who's a Republican from Alaska), Senator Susan Collins (who's a Republican from Maine), and Senator Mitt Romney (who's a Republican from Utah), these are senators who have not been critical of the House process.

We've pressed them over and over again in the hallways about how they feel the Senate trial should go, how they felt the House impeachment inquiry has gone. And while they've said that the House impeachment inquiry hasn't necessarily been an ideal situation, they weren't really very critical of the way that it was handled because they're more of the view that they want to hear the arguments over in the Senate.

When they lay out the case in the Senate trial, McConnell is gonna go to these senators and say, "I need to know whether or not you've heard enough and we can vote to convict now or whether or not you're gonna be pushing for witnesses and you feel like we need to go further." And those three are going to be very key in terms of how this whole process plays out.

Ainsley: Thanks, Frank. We're gonna take a quick break. If you could just hang tight, we will be right back.

Ainsley: So, Frank, on this question of whether each side will get to call witnesses, that's really important to this debate. Who are we talking about? What witnesses do you think each side would plan to call?

Thorp: So Senator Minority Leader Chuck Schumer has sent a letter to Majority Leader McConnell asking specifically for four witnesses. He actually ended up sending that letter to the entire Senate.

Chuck Schumer: That's all we want: the facts. We don't know how these witnesses will testify. We don't know what the documents, if we get our hands on them, will say. Maybe they'll be exculpatory of President Trump, or maybe they'll be further condemning President Trump's actions. We don't know. But we should see them regardless of what they say.

Thorp: And two of the notable witnesses would be John Bolton and Mick Mulvaney, the acting chief of staff at the White House. The four witnesses that Schumer asked for were not witnesses that we heard from the in the House impeachment inquiry. Now, McConnell has responded, saying, "There's no precedent for hearing from new witnesses in the Senate trial," that the reason why the impeachment inquiry exists is to get all the information and send it over to the Senate to be able to decide whether or not to convict.

Now, in the '99 trial of President Clinton, they had witnesses that they deposed. Instead of actually having them live on the Senate floor, which technically you could do, they had them in a room where they videotaped a question-and-answer. And then they ended up playing those questions and answers on the Senate floor for senators to watch.

Now, the difference there is that those witnesses that they deposed, which included Monica Lewinsky, were actually witnesses that had already been heard from as a part of the investigation that rued in articles of impeachment passing in the House.

This would be a different situation. Schumer is asking for something different here. He's asking for more. He's asking for particular witnesses that have information related to this case that have not been heard from. The only other issue here is that what this would potentially open up the Senate to is the flip side: witnesses that Republicans might actually want to talk to, which is somebody like Joe Biden, Hunter Biden. There is a number of different people Republicans have threatened to call in the event that there are witnesses that Democrats want.

Archival Recording: The idea of having witnesses. Where do you come down on having witnesses--

Joni Ernst: Don't like it. I don't like it.

Archival Recording: Why not--

Ernst: Let's shorten this.

Thorp: In fact, I talked to Senator Joni Ernst a couple weeks ago, and I said, "Well, would you be open to having Mulvaney or Bolton testify before the Senate?

Archival Recording: So you wouldn't want to hear from Mulvaney or--

Ernst: No.

Archival Recording: --Bolton, or anything like that? People who--

Ernst: No, do they want to hear from Hunter Biden?

Thorp: It's kind of a back-and-forth that they're going to have to, because they need 51 senators to agree to have any kind of witnesses at all, there might be a back-and-forth negotiation that would if you end up opening up the Senate to a Democratic witness, you also might open up the Senate to a Republican witness.

Ainsley: So, Frank, it seems like this issue of fairness is hanging over everything, whether we're talking about witnesses or whether we're talking about if Speaker Pelosi is even going to hand over these articles of impeachment and start a Senate trial. Fairness seems to be the big thing that both sides are using as they point back and forth to each other. Can you just walk us through when did this issue become such a flashpoint and how have both sides been using it?

Thorp: Well, I mean, the idea of fairness is obviously an important one. It's obviously also defined by either side in different ways. The idea of Leader McConnell saying, "I am not an impartial juror," was a notable thing for him to say.

McConnell: The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate. I'm not impartial about this at all.

Thorp: But at the same time, you know, a Senate trial, an impeachment trial, is inherently political. He's going to advocate for his person, for his president. Now, the reality is that, you know, the senators are going to take an oath. They're going to take an oath at the beginning of the trial saying, "I solemnly swear that in all things appertaining to the trial of the impeachment I will do impartial justice according to the Constitution and laws, so help me God." That is an oath that they're going to be taking. But, again, they are not technically an impartial jury. This is not a court of law. There is not the same expectations.

Ainsley: Well, Frank, I learned a lot from this. And now, some of our listeners have some questions for you. Kamal from Lakewood, California says, "Could certain senators just choose to not show up for the final vote or abstain from the vote?"

Thorp: So that's a good question. And I think there's a little bit of an open answer there. I mean, I think, you know, senators are compelled to be there for the trial. I think that senators have said that they would be there for the trial, that they would do their duty.

There's been a little bit of a discussion about what happens if, you know, a senate trial is happening during a debate day, whether or not there could be an agreement amongst the Senate (which would require basically all 100 senators) to move the trial time or the trial date, maybe push it a day or move it a little bit earlier.

Technically, President Clinton's trial we saw the trial start at usually 1:00 p.m. and go until around 5:00 or 6:00. They could move that. But, I mean, in reality, all 100 senators are expected to be in their seats for the entire time. That's one of the things that McConnell has been kind of dangling over senators as a way to get them to realize that this is going to be a heavy and potentially long process. They're gonna be there, sitting in their seats, and they really kinda don't have an option.

Ainsley: And then Pat from Dallas says, "Can the Chief Justice overrule the Senate vote?"

Thorp: Well, so the Chief Justice, as we kind of already established, could have an active or a passive role. And I think the expectation is that he would probably have a passive role, meaning he would leave a lot of the questions to the body of the Senate to vote on. If there was a motion made, if there's an objection made, he would let the Senate decide to vote.

Now, hypothetically, the Chief Justice could overrule a motion. But, again, any motion by or any decision made by the Chief Justice is subject to a responding motion by any senator, which would then be put up for a vote. The short answer is no. 51 senators have the most power during this Senate trial. That is just the reality.

What the Chief Justice will do is just oversee this trial and make sure that it doesn't get unruly and take their cues from the parliamentarian and from the folks that will let them know or let him know how they expect the Senate trial to go.

Ainsley: So, Frank, last question from me. This just comes from talking to family over the holidays. People want to know: Is this a foregone conclusion, that Republicans control the Senate so the President won't be convicted? And should they even be paying attention to what happens next in the Senate? And if so, why should they?

Thorp: It's not a ridiculous thing to think that this feels like a foregone conclusion. And McConnell has said as much. He's basically assured that the President will not be convicted. They need 67 votes to do so. That would take 20 Republicans to join all Democrats, and that's a highly unlikely scenario for them to vote to convict and remove the President.

Now, obviously we've seen the President tweet about a million times about this. We've seen his surrogates argue why they feel like this impeachment is, in their words, a sham. But the reality is that a lot of that has been very much focused on the process. And this trial is going to be very different.

It's going to be worth watching simply because it's going to be more austere almost in a way. There's not going to be the yelling, and the screaming, and the crazy motions and things like that put forward, and Democrats or Republicans giving speeches in the middle of markups.

And so we're going to hear a clear argument from the House managers why they feel that what President Trump did was impeachable. And we're going to actually hear the defense, the White House, argue why it's not. And that's something I think that whether or not there are enough votes for the President to be convicted or not is definitely worth watching.

Ainsley: That's a great argument. Well, we will certainly be watching, and we will be watching for your great coverage from the floor. (MUSIC) Thanks, Frank.

Thorp: Thank you.

Ainsley: Article II: Inside Impeachment is produced by Isabel Angel, Max Jacobs, Claire Tighe, Aaron Dalton, Preeti Varathan, Allison Bailey, Adam Noboa, and Barbara Raab. Our executive producer is Ellen Frankman. Steve Lickteig is the executive producer of audio. I'm Julia Ainsley, NBC News correspondent covering the Departments of Justice and Homeland Security. We'll be off on Wednesday for the new year, but Steve Kornacki will be back in the host chair on Friday.