The impending impeachment trial of President Donald Trump has boosted the profile of senators who have specific experience in their background: spending time in front of a judge.
Virginia Democrat Tim Kaine, who tried cases and pressed appeals as a civil rights lawyer before he entered politics, said Wednesday that Minority Leader Charles E. Schumer of New York has started a dialogue with him and other Democratic senators who have courtroom experience ahead of the impeachment trial.
Senators will have to sit in silence as they play a role somewhere between juror and judge, meaning they won’t be presenting the two articles of impeachment or leading Trump’s defense.
But senators from both parties can submit questions for House impeachment managers or Trump’s defense team that will be read aloud by presiding officer Chief Justice John G. Roberts Jr. There were two days dedicated to those questions during President Bill Clinton’s impeachment trial in 1999.
“I think those of us who have tried cases sort of know how to ask them in the way that is the pithiest and that’s the shortest,” Kaine said. “You want that question to be phrased in the absolute perfect way when Chief Justice Roberts reads it.”
And while senators more used to orating won’t be able to give speeches, those with courtroom experience have practiced using the questions to get their point across, Kaine said.
“The question often matters more than the answer,” Kaine said. “A question can make a really profound point in a juror’s mind, regardless sometimes of what the answer is.”
Senators can also make motions and employ other courtroom tactics. And while an impeachment trial is unique and a different proceeding altogether, a familiarity with how federal courts view legal issues with witnesses and evidence can form the basis of political arguments.
Texas Republican John Cornyn, who spent 20 years in courtrooms and sometimes jokes that he is a recovering lawyer and judge, criticized the articles of impeachment during a floor speech Wednesday using the language of due process in criminal courts.
Democrats impeached Trump on two articles, abuse of power and obstruction of Congress, but did not specifically name any crimes that they previously alleged Trump had committed. In the law, the concept of due process means that a defendant or litigant gets fair treatment.
“The whole idea about charging somebody with an abuse of power without accusing them of a crime, so that they know what they’re charged with and can defend themselves, that’s a due process problem,” Cornyn told CQ Roll Call after he left the floor.
The last impeachment trial focused on the comparatively straightforward question of whether Clinton should be removed from office for lying under oath about sexual relations. This time, the abuse of power charge brings in constitutional questions, such as the balance of power between the political branches or a president’s power to direct foreign relations.
“There’s no doubt that legal issues will be central to the trial before us, and especially constitutional questions,” said Texas Republican Ted Cruz, a former state solicitor general who argued before the Supreme Court nine times. “The standard the Senate will be applying is whether the constitutional threshold for high crimes and misdemeanors has been satisfied.”
Democratic senators with trial experience include Kaine; former state attorney general Richard Blumenthal of Connecticut; former state attorney general and federal prosecutor Sheldon Whitehouse of Rhode Island; former prosecutor Patrick J. Leahy of Vermont; and former state attorney general Kamala Harris of California.
Republicans include Cornyn; Cruz; former federal prosecutor Mike Lee of Utah; former state attorney general Josh Hawley of Missouri; and Lindsey Graham, a former military prosecutor who was a House impeachment manager for the Clinton trial.
Kaine said part of the dialogue for those with courtroom experience is about giving the Democratic caucus a cohesive strategy.
“It doesn’t make sense for 47 people to just have a bunch of questions that they ask in random order. So we want to share with the team — here’s the things we’d like to know — and then prioritize them,” Kaine said. “It shouldn’t just be bouncing around from one topic to the next.”
Still, the impeachment trial likely turns on bigger arguments and not technical legal issues, said former North Dakota Democratic Sen. Byron L. Dorgan, who was in the Senate during the Clinton impeachment trial. “I don’t think it is so much about the corners and crevices of interpretations of the law,” he said.
Cornyn said that Trump’s legal team likely will raise many of the legal issues. “None of this is particularly obscure. I mean, this is pretty basic stuff,” he said.
And Whitehouse said that knowing what a trial looks like will be helpful when it comes to articulating whether the Senate is doing it the right way or the wrong way.
“But given our fairly circumscribed role, the trial experience is obviously going to be more significant an attribute for House managers,” he added.
Speaker Nancy Pelosi said Wednesday that she looked for that experience when picking the seven impeachment managers who will present the case to the Senate, led by Rep. Adam B. Schiff of California, a former federal prosecutor.
“The emphasis is on comfort level in the courtroom,” Pelosi said. “The emphasis is on making the strongest possible case to protect and defend our Constitution, to seek the truth for the American people.”