The real problem with McConnell's impeachment rules

The principle behind guaranteeing a speedy trial is that the accused, then presumed innocent, should not endlessly languish behind bars for a crime he perhaps did not commit. But those ignorant of the concept might be forgiven if, first introduced to it via the rules proposed by Senate Majority Leader Mitch McConnell (R-Ky.) for President Trump's impeachment trial, they came away convinced it meant the proceedings must be done at double time, charging toward a verdict even if it requires marching straight through the night.

McConnell's proposed rules, to be voted on after amendments and debate Tuesday evening, have two chief features, of which the compressed timeline is but one. His dictate that each side — the House impeachment managers and the president's defense team — will have 24 total hours, to be used within three calendar days (up from the initially suggested two), to present their respective cases has won him the title "Midnight Mitch" as well as accusations of willfully obscuring the trial's content from the American people, most of whom (quite sensibly) will not track its proceedings at the very late or very early hours this schedule may necessitate.

This timeline is stupid. It is also willfully difficult. But it's mostly a mere annoyance. The 24-hour limit is the same as that used in former President Bill Clinton's trial in 1999. Arguments then were completed before the 24 hours were up, and the shifts in media coverage in the years since make hearings at even the smallest hours much less clandestine. The tweets and highlight videos and summary listicles will be there for us in the morning.

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It's the other feature which poses the real problem: Under McConnell's rules — Senate Minority Leader Chuck Schumer (D-N.Y.) will surely try to change them, though he is unlikely to succeed — witnesses may not be called and evidence collected in the House impeachment inquiry may not be presented unless approved in a vote taken after the 24-hour opening arguments are done and have been followed by 16 hours for questioning and four hours for deliberation. Four Senate Republicans have expressed an interest in hearing from witnesses, which would be more than enough to tip that vote in Democrats' favor, but we won't know their final decision until the arguments, questions, and deliberations are complete.

This plan has two major flaws. First, it will impede the impeachment managers' ability to make their most persuasive possible case because they won't know whether they'll be able to introduce documentary evidence and call witnesses as desired. That uncertainty is debilitating, as it would be in any attempted argument. Second, it will require the impeachment managers to use a significant portion of their 24 hours pushing for permission to bring in additional witnesses and documents instead of talking exclusively of their case against Trump. They'll have to leave off working to persuade the Senate of the president's guilt to make space for procedural disputes.

I have described consequences for the impeachment managers, but were this trial not already decided — in fact, if not in oath — the negatives here would apply to Trump's defenders, too. Had they any uncertainty about how the Senate might decide, the president's team would protest just as loudly as the Democrats. They too would denounce the hobbling effect of unpredictability which a delayed vote on witnesses and documents introduces to the preparation process, and they too would object to having to convince the Senate to allow summons of people and papers to bolster their case. They won't, because partisanship has already rendered the verdict.

Absent a realistic chance for different rules, it might be better (which is to say, still bad) if McConnell dispensed with the post-deliberation vote and prohibited witnesses and documents from the outset. What would be lost in the chance that the vote will go in favor of a better-informed trial would be gained in permitting the 24-hour arguments to focus solely on the case proper with a presentation undistorted by false hope of further evidentiary support.

Instead, whatever witnesses and evidence aren't allowed at trial will be endlessly examined on television news and Twitter, new bombshells dropping every hour and forgotten the next, all of us pretending deep interest in people whose names were new to us a day ago and whose import we can't quite remember, a papier-mâché of facts slurried together and shaped around the conclusions we've already reached.

Perhaps McConnell's short timeline for this largely pointless exercise is a mercy after all: If we can't get anything like justice, we might as well get it over with.