After a closed door meeting with White House counsel Pat Cipollone on last month, Senate Majority Leader Mitch McConnell announced that he will be collaborating with President Trump during the upcoming Senate impeachment trial. “Everything I do during this, I’m coordinating with the White House counsel,” McConnell said. “There will be no difference between the president’s position and our position in how to handle this.”
Among others, Republican Senators Lisa Murkowski, Susan Collins, and Mitt Romney have voiced concern over the majority leader’s secret collaboration with the White House counsel. They question whether it’s McConnell’s job to act as President Trump’s alter ego during the impeachment trial.
McConnell will be serving as a judge-juror. His collaboration with President Trump should disqualify him from that role. Sir Francis Bacon sitting on the King’s Bench was convicted and disgraced because he’d engaged in ex parte communications with the British Crown. The impartiality required by due process clearly forbids any private contact between a judge-juror and the defendant or defense counsel.
Accordingly, to entrust to the compromised majority leader the power to prescribe impeachment trial procedures would be to rig or appear to rig the process in favor of the president. That would be politically hazardous for Senate Republicans. President Franklin D. Roosevelt was repudiated over his 1937 court-packing scheme to rig the U.S. Supreme Court. Not only did the legislation die in the Senate, it contributed to the Democratic loss of six Senate and 71 House seats during the 1938 midterm elections. Senator Joe McCarthy lost favor because of unfair procedures during his investigations of communism and communists, and was condemned by the Senate in 1954. Voters generally respect due process and may abandon elected officials who do not.
To avoid the taint of McConnell’s bias, other Senate Republicans should consider voting with Democrats to empower Chief Justice John Roberts to prescribe procedures for the impeachment trial. Among other things, the procedures should govern the admissibility of evidence, claims of privilege, subpoenas to compel testimony or documents, the burden of proof, direct and cross-examination of witnesses, and instructions as to the elements of an impeachable offense.