The Senate impeachment trial of President Trump is finally kicking off this week. And while the trial itself is a momentous political event, the whole process feels a bit like having peeked at the last few pages of a book: We don’t know exactly how the plot will unfold, but we already know where it will end. As at this point, there’s no sign that there are anywhere near 67 senators willing to vote to remove Trump from office.
How the televised hearings have moved public opinion on impeachment
But despite the final vote being something of a foregone conclusion, there are still a number of genuinely open questions that the trial might resolve. The answers to these questions might not be enough to break the country out of the partisan logjam that’s surrounded the impeachment process for months, but they could at the very least inject some uncertainty into a process that has come to feel quite inevitable. (And there’s always the chance, however small, for a truly shocking development.) Here are some of the major questions we’ll be following closely as the impeachment trial gets started:
What will Trump’s defense look like?
The impeachment process has been in motion for more than three months, but we still haven’t heard a formal defense from Trump’s legal team, outlining their case for why his conduct doesn’t merit impeachment and removal. It’s not because Trump was boxed out of the impeachment inquiry in the House either.1 They just refused to participate.
That means that the arguments we heard in favor of Trump during the House impeachment hearings were presented by his Republican allies in Congress, not his lawyers. And while their defenses of the president have been vigorous, they’ve also been scattershot.
For instance, at various moments over the past few months, Republicans have argued, among other things, that the testimony presented was “secondhand” or “hearsay”; that Trump was just concerned about a (debunked) theory alleging Ukrainian interference in the 2016 election; that Ukraine said there was no pressure so there couldn’t be a quid pro quo; that quid pro quos happen all the time in foreign policy; that the whistleblower was politically biased against the president; that Trump’s rights were denied throughout the process; and that Democrats have been looking for an excuse to impeach Trump since the day he took office. These arguments don’t add up to a coherent whole — in some cases, they directly contradict each other — but Republicans didn’t really need to offer a logically cohesive case in order to sow confusion during the hearings about Democrats’ claims.
Now, though, Trump’s legal team is expected to offer a more conventional defense, which will be presented at the trial by White House lawyer Pat Cipollone, and Jay Sekulow, who has been Trump’s personal lawyer since 2017. Several other attorneys were also added to the team in the past few days, including Ken Starr, the Whitewater independent counsel whose investigation led to Clinton’s impeachment, and the perennially TV-ready Alan Dershowitz, a constitutional lawyer and emeritus professor at Harvard Law School.
And we got a preview of the president’s lawyers’ strategy in legal filings released over the past few days, where Trump’s team argued that the impeachment vote was a “brazenly political act” that punished the president for simply performing his duties as chief executive. Those documents also hinted at a multi-pronged defense that echoes some of the arguments already previewed by Trump and his allies: First, that Trump’s behavior was “entirely appropriate” and didn’t rise to the level of an impeachable offense and second, that the process pursued by the Democrats was illegitimate and unfair. The filings also suggested that the defense is likely to be aggressive and concede no wrongdoing by Trump rather than simply arguing that his conduct doesn’t meet the standard for impeachment. The upcoming election could also play a role as well, since Trump’s legal team also accused Democrats of using impeachment to “interfere with the 2020 election — now just months away.” However it plays out, their arguments will be televised and Trump himself is sure to be watching closely.
How will Chief Justice John Roberts preside over the trial?
Another potential wildcard is Chief Justice John Roberts, who will cross the street between the Supreme Court and the Capitol each afternoon to preside over the trial. It’s possible his role will be mostly ceremonial, especially if President Clinton’s impeachment trial is any indication. (At its close, Chief Justice William Rehnquist famously said, borrowing a line from a Gilbert and Sullivan opera, “I did nothing in particular and did it very well.”)
But the chief justice’s power isn’t actually all that clearly defined, and some legal commentators have argued that he could have significant influence over the proceedings if he chooses. In the impeachment trial of President Andrew Johnson, for instance, Chief Justice Salmon Chase cast two tie-breaking votes. Roberts could theoretically do the same if the senators are deadlocked over an issue like whether to call additional witnesses. Although there are some limits — Roberts’s decisions can, for example, be overridden by a majority of senators.
The chief justice will be closely watched for other reasons, too. For one, the impeachment trial isn’t the only Trump-related case on Roberts’s docket this year. In a few months, the Supreme Court will consider a high-profile separation-of-powers dispute over whether House Democrats can obtain the president’s financial records. Secondly, Roberts’s relationship with Trump hasn’t exactly been smooth. While Trump was running for president, he called Roberts a “disaster” and a “nightmare for conservatives.” And in 2018, Roberts rebuked Trump after the president attacked a judge who ruled to restrict his asylum policy as an “Obama judge,” saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
Roberts, who is known for his concern about the court’s institutional reputation, may not want to do anything too splashy during the trial to avoid creating the impression of partisanship. But it will be instructive, all the same, to see how he navigates the treacherous waters of an impeachment trial — particularly if there are close votes or disputes over witnesses and evidence.
Will any new evidence emerge?
Of course, one of the biggest unanswered questions as the trial begins is whether the senators will agree to call witnesses or subpoena documents or if new evidence will emerge in other ways.
In the previous two presidential impeachment trials, witnesses did testify. Democrats have been pushing for the Senate to call several Trump aides who haven’t yet shared what they know about the president’s conduct on Ukraine, including former national security advisor John Bolton. (Bolton said he would comply with a subpoena to testify.) Only four Republicans would need to break ranks in order to make this happen.
That doesn’t seem especially likely at this point, even though three Republican senators have already said they’re open to voting to call witnesses. But a fight over witnesses could also end up giving Democrats more than they bargained for, since some Republicans have been arguing for what they’re calling “witness reciprocity” — in other words, if the Democrats insist on hearing from John Bolton, the Republicans will haul in Hunter Biden.
New evidence could also trickle out in other ways, though, and indeed, it already is. Last week, House impeachment investigators released new information obtained from Lev Parnas, an associate of Rudy Giuliani who’s currently under criminal indictment. The documents, which include text messages and voicemails, provide a detailed portrait of Parnas’s involvement with the Ukraine pressure campaign and inject a new layer of uncertainty into the impeachment trial as it begins — a reminder that there’s still a significant amount of information that we don’t know about Trump’s conduct when it comes to Ukraine.
At this point, as you can read in my colleague Perry Bacon Jr.’s article published today, we think the impeachment process in the Senate will play out largely as it did in the House: along party lines. But it’s also dangerous to assume that the trial will unfold exactly as we expect. There are still plenty of open questions that could lead to big surprises over the next few weeks — and continue to shape the narrative on impeachment — even if we’re pretty confident about how this story will end.