Portside

During his opening remarks at the Senate removal trial of Donald Trump, White House Counsel Pat Cipollone lied. Repeatedly. Cipollone said that Republicans were not allowed in the Sensitive Compartmented Information Facility to participate in depositions taken during the House’s impeachment investigation. That is a demonstrable lie. He accused Representative Adam Schiff of having “manufactured” a “false version” of Trump’s phone call with Ukraine President Volodymyr Zelensky. That’s not true. He played fast and loose with the timeline around the Zelensky call, alleging a controversy over the first phone call that never happened.

We, as a country, are used to President Trump lying almost every time he opens his mouth. We are used to his state-sponsored media sycophants going on television and lying for the president every night. We are used to Republicans lying to stay in lockstep with Trump.

But we haven’t seen the Trump people lie so brazenly in court, or something that appears to be court. We haven’t seen them lie after oaths have been taken. A lot of people thought that a trial presided over by the chief justice of the United States would be the moment where the lying stopped.

It was not. And the reason is that no matter how much this thing is set up to look like a trial, the Senate impeachment proceeding is not a real trial. Not in this case.

In a trial after impeachment, the Senate sets the rules, at its sole discretion. It votes on whether its rules have been violated. If you read the rules for this trial, as transmitted by Senate majority leader Mitch McConnell, you’ll note that there’s no penalty for “lying.” There is not even a procedure to determine if somebody has lied.

In a normal trial, the judge is empowered to stop advocates like Cipollone from openly and obviously lying to the court and the jury. In a normal trial, the judge would have been empowered to cut Cipollone off, mid-lie if necessary, and demand that he “approach the bench.” There, he’d be admonished for lying to the jury. If he continued with the lie or did it again, a judge could hold Cipollone in contempt, or even declare a “mistrial” and force the whole process to start again.

Chief Justice John Roberts has no such power here. Mitch McConnnell’s rules do not allow Roberts to hold anybody in “contempt.” Frankly, even if they did, from a constitutional perspective, McConnell could call a Senate vote to overrule a Roberts attempt to hold Republican lawyers accountable to the truth. Roberts can’t do anything other than what Mitch McConnell allows him to do.

In fact, the Senate impeachment trial doesn’t even pretend to follow the same basic rules as any other trial. For instance, in a civil trial, lawyers who make false, misleading, or frivolous arguments may also be sanctioned for violating the Federal Rules of Civil Procedure (Rule 11). Here, those federal rules do not apply. McConnell didn’t incorporate them into his rules, and so this Senate trial will proceed as if they don’t exist. We’re being forced to act like there are not centuries of American jurisprudence to guide us on what a “trial” should look like, because for impeachment those centuries are irrelevant. The only rules that matter are the ones that get a 51-vote majority in the United States Senate.

Deprived as we are of the rules that proscribe lying in a trial, we’re left only with the rules of the Senate itself. Unfortunately, the Constitution, in its flawed wisdom, also decided to give congresspeople the discretion to lie as much as they want while they are conducting the people’s business.

You’ll find the license to lie in Article 1, Section 6 of the US Constitution. We just usually refer to this license by its proper name: The Speech and Debate Clause:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

What that means is that no representative or senator shall be hauled into court (or any other “place”) to answer for anything they say—absent treason or some other felonies—while performing their official duties. You can’t sue a senator for defamation for something they say on the floor of the Senate.

When the senators have their opportunity to question the impeachment managers, they’ll be able to say whatever they want. They can lie about the House investigation process. They can lie about the Bidens. They can put forward whatever “alternative facts” they like, and nobody can stop them.

Wonderful system we have here. A president who lies can be supported by a party that is willing to lie for him, and the only thing the Constitution has to say is that you can’t punish people who are lying while clothed in the power of their offices.

Near the end of last night’s marathon session, John Roberts finally spoke. He admonished “both sides, in equal terms” for failing to address the Senate with the proper respect. It’s a microcosm of how both-sideism plays to the Republican advantage. If he was going to bother to speak, Roberts could, as Representative Jamie Raskin suggested, have admonished Pat Cipollone for bald lying. Nobody would have had to listen to him, but he could have used his moral authority to set the the record straight.

But no, all we got from Roberts was “both sides” and vague hand-waving about decorum.

All the Democrats can do is what they’ve been doing: correct the record. The hero of the first day of the impeachment trial has been Representative Adam Schiff. He has risen to the occasion, literally reserving part of the House impeachment managers’ time to rebut the lies and misinformation spewed by Republican lawyers every time they take the podium. For at least one day, Democrats have been on point and ferocious, battling every Republican canard with facts, video clips, PowerPoints, and anything else that they can think of to help keep the light of truth shining through.

That’s all there is to do. As the country has learned, there is no legal penalty for lying, no matter how globe-shaking the consequences. All you can do is have the strength and stamina to repeatedly correct the liars and hope that people are able to distinguish fact from fiction.

It is the people’s ability to spot and reject lies that is the ultimate constitutional penalty for lying. The party that lies and supports liars can be voted out of office, if one can manage to pull off a fair election despite that party’s attempts to steal it. That’s it, that’s all the Constitution has to offer if Republicans can lie Trump’s way out of impeachment.

Why do they lie all the time? Because they can. Who is going to stop them? All of us. It will take all of us trumpeting the truth to drown out the drumbeat of lies.

Elie Mystal is The Nation's Justice Correspondent—covering the courts, the criminal justice system, and politics—and the force behind the magazine's monthly column, "Objection!" He is also an Alfred Knobler Fellow at the Type Media Center. He can be followed @ElieNYC.

Copyright c 2019 The Nation. Reprinted with permission. May not be reprinted without permission. Distributed by PARS International Corp.

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