We are entering into an unprecedented situation in American history.  Three times before, the House has given serious consideration to adopting articles of impeachment against a sitting president.  The last two times — Richard Nixon and Bill Clinton — the House Judiciary Committee took up potential articles of impeachment during the mid-term election year of the president’s second term.  While there would be lingering impacts of the impeachment process in the succeeding presidential election, the sitting president was not a prospective candidate and the process was over before the primary campaign really got started (with the Nixon process ending with his resignation in August of 1974 before the mid-term election and the Clinton process ending with the conclusion of the Senate trial in February 1999 as potential candidates for 2000 were just starting their run).

The impeachment of Andrew Johnson is the closest precedent to the current situation.  While Johnson’s impeachment trial extended into May of 1868 (a presidential election year), there are some major differences that preclude that situation from being a true precedent.  The biggest, of course, is that the nomination process was entirely different back then.  There were no primaries and the state parties had strong control over their delegations which tended to follow the now-abolished block vote tactic.  While Johnson had some support to get a chance to run in 1868, that support was almost entirely from the readmitted former rebel states and he never really had a path to the nomination.  Additionally, in the days before radio and television, the primary coverage was through partisan newspapers.  While partisan television and radio networks may try to slant coverage today, it is possible for voters to view the impeachment hearings and trials in their entirety (either live or by retrieving the video later).

Now, of course, candidates wanting to be President have to run in primary elections that run from February to June and the votes in those primaries bind (to various degrees) the delegates to the national convention.   Also, because primaries are public elections, candidates have a deadline to file for running and have to campaign for votes.

Now, because lawyers always have dead time in court and tend to follow politics almost obsessively (because politics can have a dramatic influence on the claims that we can make in court and procedural rules), I have heard a lot of people discussing how the impeachment trial could impact the nomination process.

Obviously, the two parties are in very different situations.  In several states, the Republican Party has cancelled any preference vote (either primary or caucus).  Any delegates elected from those states will technically be uncommitted.  In the states that do have primary elections, it is likely that the filing deadline will pass prior to the conclusion of the impeachment process.  At the present time, there is no serious contender for the post-Trump nomination that is likely to file in those states.  If, somehow, the Republican Senators decide that their oaths of office matter and Trump is removed from office and precluded from running for re-election, voters in those states will have to choose between voting for Trump (who will still be on the ballot as the deadline will have passed for removing a candidate from the ballot) or voting for Joe Walsh or Bill Weld (or some other candidate that they do not to be the nominee).  Assuming that a vote for Donald Trump will be treated as a vote for “uncommitted’ and such delegates will be unbound at the convention, the delegate selection process in the states will be key.  And in states like Illinois and Pennsylvania in which delegates candidates run for election, who gets on the ballot as the Trump delegates could play a significant role in who ultimately gets the nomination.  While the odds of it are slim because it is impossible to find a Republican Senator with a backbone willing to stand up to Donald Trump much less the 20 required to get to 67 votes to convict the President of the high crimes and misdemeanors which any impartial jury would find him guilty of beyond any possible doubt much less any reasonable doubt, the Republican Party could find itself facing an old-fashioned convention in which the delegations are controlled by the state parties and everything is up for grabs at the convention.

On the Democratic side, a lot will depend on how long the trial takes and how much it dominates the news cycle.  As we saw from this week, the Democratic debate got minimal coverage when compared to the testimony at the impeachment hearings.  The Democratic primary campaign will be on the national back burner until it is concluded (probably no earlier than mid-February).  Once the trial gets started, the Democratic Senators will, for all intents and purposes, be stuck in Washington during the week.  And, if the rules for this trial mirror the rules from 1999, Senators will be listeners rather than active participants in the trial.

To put what may happen during the trial in terms of an ordinary trial, it will more closely resemble a court martial than a regular civil or criminal trial.  The attorneys in the case will be the House managers representing the people of the United States and the attorneys hired be the criminal President to represent himself.  The presiding judge will be the Chief Justice but the Senators will also be judges who can overrule the presiding judge’s rulings on evidentiary matters.  So the Senators might be able to grab the spotlight during the trial if there are debates on evidentiary rulings, but even then any Senator running for President will have to tread very carefully.  In addition, the President may attempt to call Vice-President Biden or Hunter Biden as witnesses.  The Chief Justice would almost certainly sustain a relevancy objection as neither of the Biden’s actually has evidence on whether the President tried to bribe the Ukrainian government or solicited a contribution from the Ukrainian government.  Whether or not the Republicans (Lindsey Graham) would try to suggest they understand the rules of evidence better than the Chief Justice of the Supreme Court remains to be seen.  If Vice-President Biden has to testify, that could have an impact on the primary election.

In short, I don’t see much of an opportunity for the Senators (Warren, Harris, Sanders, Booker, Bennett, and Klobuchar) to do something during the trial that would benefit their candidacies.  And they will have to rely (at least during the week) on their staff to do the work in Iowa, New Hampshire, Nevada, and South Carolina to get ready for and contest those elections.  These six candidates will probably make trips to these states during the weekends, but their opportunity for the type of retail politics that the voters in these states desire will end in Mid-January.  That creates a window for the candidates who are not currently in the United States Senate.  To the extent that they are sill running in January and February, Andrew Yang, Tulsi Gabbard, John Delaney, Tom Steyer, Joe Sestak, Steve Bullock, and Julian Castro will have one last chance to rise from the pack to the front tier without the six Senators being present to meet one-on-one or in small settings with votes.  And Vice-President Biden and Mayor Pete Buttigieg will be the only candidates in the top tier who can spend 24-7 in Iowa and New Hampshire during that last crucial part of the campaign in those states.

Now, I don’t think that this impact on the campaigns will, by itself, cause one specific candidate to succeed and another specific candidate to lose.  But, in the typical presidential campaign, candidates serving in Congress are able to devote most of their attention to the campaign and only minimal attention to the legislative process (only needing to return to Washington for crucial votes).  With one set of candidates being free to campaign full-time and the others only being able to campaign on a very limited basis, I would not be surprised by unexpected results in the early states which may dramatically alter the course of the rest of the primary.