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The 1999 Clinton impeachment trial largely consisted of lengthy speeches by members of Congress and lawyers. The only real evidence was three videotaped depositions of witnesses.

Straight Talk On Impeachment — It’s Not 1974 Anymore

There is no doubt in my mind that Trump has committed impeachable offenses and I believe that impeachment proceedings should begin. But let’s keep our expectations in check as we go forward.

This isn’t 1973 and 1974. The GOP is radicalized and there are no moderate Republicans. In 1974, the federal judiciary largely consisted of Democratic appointees and moderate Republicans. Today’s judiciary has been packed with right wing activists who have been vetted by the partisan Federalist Society.

There won’t be any Trump Administration witnesses at the House impeachment hearings because Trump will reject all subpoenas. The last thing Trump wants is another John Dean talking about a “cancer on the presidency” on national TV. Instead, the Democrats will have to file suit to compel any evidence. That litigation could months or even years to be resolved.

Then, there are no guarantees the Democrats will win in court . Kavanaugh was selected — in part — because he believed the Nixon tapes case was wrongly decided. In 1974, Nixon took the position that executive privilege is absolute. That is the same argument being raised by Trump’s lawyers. Apparently, it has already convinced Kavanaugh.

If we want impeachment to be resolved before the 2020 elections, the House will have to proceed without Trump Administration witnesses. The witnesses at the hearings will be constitutionals scholars and historians who will opine on the issue of impeachment. Similar witnesses were called at the 1998 House impeachment hearings. It wasn’t compelling television.

After the House presumably votes to impeach, the matter moves over to the Senate for a potential trial. The odd thing about impeachment is that the one hundred senators establish the rules for the trial and act as a jury. What that means is that there are no standard rules and the Senate passes a resolution first laying out trial procedures. “When the Senate decided what the rules were going to be for our trial, they really made them up as they went along,” said Greg Craig, who helped represent Clinton in the 1999 impeachment trial.

Early in the 1999 Clinton impeachment trial before any evidence was presented, the Senate Democrats filed a motion to dismiss that was rejected on a straight party line vote. I would expect McConnell and the 53 GOP Senators to pass a motion to dismiss before they heard any evidence. It would all be over rather quickly.

If McConnell decided to allow a trial, he and the 53 GOP Senators would control the proceedings and the presentation of evidence. For all we know, the trial could end up being all about Hillary Clinton, the Steele dossier and the right wing’s deep state conspiracy theories.

I do believe we should go ahead with impeachment but it would be no panacea or deus ex machina. The only way we are going to get rid of Trump and Pence is to win the 2020 elections. We will have to knock on doors, make phone calls and write checks. That is the only solution. We won in 2018 and we can win again in 2020 if we remain united. Now let’s get it done!

I’m a trial lawyer, a Democratic activist and a sports fan.

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