Near midnight, the House managers and White House legal team erupted into name calling and recriminations. The confrontation led to Chief Justice John Roberts to admonish both sides and remind them that this is supposed to be the “world’s most deliberative body” and that “those addressing the Senate should remember where they are.” He also repeated a ruling from the 1905 trial of Judge Charles Swayne that there should be no accusations of “pettifogging.” With those words, the pettifog (bickering over trifles and petty disputes) dissipated from the chambers.
The kerfuffle over pettifogging began with statements by House Judiciary Committee manager Rep. Jerry Nadler (D, N.Y.) called the refusal to call witnesses at this stage a “treacherous vote” and a “cover-up” for Republicans:
“It’s embarrassing. The president is on trial in the Senate, but the Senate is on trial in the eyes of the American people. Will you vote to allow all the relevant evidence to be presented here? Or will you betray your pledge to be an impartial juror? … Will you bring Ambassador Bolton here? Will you permit us to present you with the entire record of the president’s misconduct? Or will you instead choose to be complicit in the president’s coverup? So far I’m sad to say I see a lot of senators voting for a coverup, voting to deny witnesses, an absolutely indefensible vote, obviously a treacherous vote.”
In reality, it was the Democrats who first tried to block all witnesses in the Clinton trial and then pushed for this very rule to delay any decision on witnesses. However, the response from the White House team was equally heated. White House counsel Pat Cipollone stated
“We’ve been respectful of the Senate. We’ve made our arguments to you. And you don’t deserve, and we don’t deserve, what just happened. Mr. Nadler came up here and made false allegations against our team. He made false allegations against all of you; he accused you of a cover-up. He’s been making false allegations against the president. The only one who should be embarrassed, Mr. Nadler is you, for the way you’ve addressed the United States Senate. This is the United States Senate. You’re not in charge here. … It’s about time we bring this power trip in for a landing.”
Trump counsel Jay Sekulow also chimed in:
“At about 12:10 a.m., January 22, the chairman of the [House] Judiciary Committee, in this body, on the floor of this Senate, said ‘executive privilege and other nonsense.’ Now think about that for a moment. ‘Executive privilege and other nonsense.’ Mr. Nadler, it is not ‘nonsense.’ These are privileges recognized by the Supreme Court of the United States. And to shred the Constitution, on the floor of the Senate. To serve what purpose? The Senate is not on trial. The Constitution doesn’t allow what just took place. Look what we’ve dealt with for the last, now 13 hours. And we hopefully are closing the proceedings, but not on a very high note.”
Sekulow correctly objected to the claim that withholding evidence is proof of guilt. He noted that President Barack Obama did the same thing in the Fast and Furious investigation: “So, I guess when President Obama instructed his attorney general to not give information, he was guilty of a crime? That’s the way it works, Mr. Nadler? Is that the way you view the United States Constitution? Because that’s not the way it was written, that is not the way it’s interpreted, and that’s not the way the American people should have to live.”
Roberts had heard enough:
“It is appropriate at this point for me to admonish both the House managers and the president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body,” Roberts said. “One reason it has earned that title is because its members avoid speaking in a manner, and using language, that is not conducive to civil discourse. “
“In the 1905 [Judge Charles] Swayne trial, a senator objected when one of the managers used the word ‘pettifogging’ — and the presiding officer said the word ought not to have been used. I don’t think we need to aspire to that high a standard, but I do think those addressing the Senate should remember where they are.”
Both sides can be chastised for allowing the rhetoric to outstrip the realities of the record and the law.
I simply welcome the return to 18th century standards and lexicon. Notably, pettifogging (which concerns petty disputes) or brabbling is less of a problem as excogigating about ways to avoid the issues at trial.
It is all enough to leave you feeling crapulous about the whole process.