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A Primer on the Presidential Impeachment Trial in the Senate

12/04/2019

Co-authored by Luke Hogg, the program coordinator for FreedomWorks Foundation.

The impeachment inquiry of President Donald Trump is in the House Judiciary Committee, following several hearings in the House Permanent Select Committee on Intelligence (HPSCI). On Tuesday, HPSCI released its draft report on its investigation. The investigation will continue in the House Judiciary Committee, which will decide whether or not to draft articles of impeachment for referral to the full House of Representatives. The House could vote on those articles, individually, and refer one or more to the Senate if approved.

Some have said that the Senate could quickly dispense with any articles of impeachment the House may pass against President Donald Trump. After all, reaching the two-thirds majority required for a conviction, which would result in removal from office, is incredibly unlikely. Including the two independents, Senate Democrats control only 47 seats, including the two independents who caucus with them. Minority Leader Chuck Schumer (D-N.Y.) would need 20 Republicans to cross over and vote for conviction on any one of the articles sent from the House.

However, it also seems very unlikely that the Senate would vacate articles of impeachment without consideration. The Senate is required to hold a trial, according to its own rules of procedure. The changes were passed in August 1986. Of course, the Senate may pass supplementary procedures -- which was done via S.Res. 16 and S.Res. 30 during the trial of President Bill Clinton in January 1999 -- but the basic rules of procedure outline what the Senate must do when articles of impeachment are transmitted from the House to the Senate. As Majority Leader Mitch McConnell (R-Ky.) has noted, he has no choice but to hold a trial.

The rules are outlined in Riddick’s Senate Procedure, a guide that is separate from the Standing Rules of the Senate. Since the Senate is governed more by tradition than statutory rules, Riddick’s Senate Procedure outlines precedents and practices of the chamber. In August 1986, the Senate passed S.Res. 479 to update Riddick’s Senate Procedure for impeachment proceedings. A few months before, in June 1986, the Senate had received articles of impeachment from the House against a federal district court judge, Harry Claiborne, who was convicted in 1984 of tax evasion. The changes made were meant to guide the Senate for Claiborne’s trial, as well as future trials.

As the Senate moves to begin sitting in judgment, the doors of the Senate will be kept open. For the duration of the trial, the public will have a clear view into the actions of the Senate, at least symbolically. Only once the Senate adjourns to deliberate will the doors be closed and our nation’s highest legislative body will again be shrouded in mystique and mystery. What could be a more accurate metaphor for this entire process?

Ultimately, the trial begins with the formality of the House appointing the managers of the trial in the Senate. As we await the final articles of impeachment from the Judiciary Committee, the Democratic leadership is currently considering which of its members will ascend into this spotlight. The articles of impeachment are transmitted to the Senate through the managers, who are required to immediately be introduced and present the articles of impeachment.

Unless otherwise directed, the Senate is required to begin consideration of the articles of impeachment at 1:00 pm the day after presentation, Sunday excluded, and the oath will be administered to senators who will essentially function as jurors. During the trial of President Clinton, Sen. Tom Harkin (D-Iowa) successfully objected to the description of the members of the chamber as “jurors.” Chief Justice William Rehnquist agreed and directed the impeachment managers to “refrain from referring to the Senators as jurors.”

As required by Article I, Section 3 of the Constitution, the Chief Justice of the Supreme Court presides over the impeachment of the president. The next step in the procedural process is for the Presiding Officer of the Senate to notify the Chief Justice, in this case, John Roberts, and invite him to preside with a specific date and time. An oath is required to be given to the Chief Justice by the Presiding Officer of the Senate.

The next steps are fairly mundane and deal with the responsibilities of the Chief Justice, who serves as the presiding officer during the trial. These procedures relate to compelling witnesses to testify, enforcing the rules, punishments for the failure to comply with the rules, and making preparations for the chamber. The Chief Justice, in the capacity as presiding officer, has the power to rule on motions and objections, as well as on motions and questions regarding evidence. However, as in the case in legislative proceedings, the ruling can be challenged, at which point a roll call vote is taken to uphold or overrule the presiding officer.

After the Chief Justice has taken their place as the presiding officer, the President, or other impeached official, is issued with a summons that simultaneously outlines the articles of impeachment and demands that the accused, or his or her counsel, appear before the Senate and file their answer to the charges. At this point, once the attorneys for the accused have appeared and been administered their oath, the real trial begins.

First, with the consent of the Senate, the presiding officer may appoint a committee whose sole function is to receive the evidence collected by the House and conduct their own depositions, accepting additional testimony from both sides. The method in which the committee conducts its affairs is determined by the committee itself. This committee is required to submit a full report of their findings to the whole Senate, including certified copies of any testimony and a transcript of the proceedings.

Regardless of whether or not the Senate decides to rest the majority of their investigatory power in the hands of an impeachment committee, the body as a whole retains the right to call and question witnesses in open Senate. In either case, both the impeachment managers from the House and the counsel for the accused party retain the right to be heard and cross-examine opposing witnesses. According to Rule IV, Paragraph l(d) of Riddick’s Senate Procedure, witnesses can only be “examined by one person on behalf of the party producing them, and then cross-examined by one person on the other side.”

Individual senators retain the right to ask questions of any witness. However, all such questions must be submitted in writing to the presiding officer and the opposing side retains the right to object to questions. Should the opposing side object to a particular question, the objection shall be argued by both parties before the presiding officer issues a ruling on the subject.

Although the Senate has the right to call witnesses, the vast majority of impeachment proceedings revolve around the arguments presented by either side. As in a traditional trial, most of the actual argumentation comes from the opening and closing statements. At the beginning of the proceedings, one impeachment manager from the House outlines the articles and the case against the accused. One counselor for the accused then presents the opposing case against removal. Once the Senate has concluded all investigatory actions, two attorneys present the closing arguments for the accused, immediately followed by the closing arguments from two impeachment managers. Attorneys for the House of Representatives both open and close the proceedings.

Once both sides have concluded, and the Senate has deliberated, the Senate shall vote on each of the individual articles consecutively. Once the voting has begun, no objections or other motions are in order and there is no motion to recommit. If even one of the articles passes with a two-thirds majority, the Senate shall then proceed to the consideration of judgement.

As opposed to punitive measures such as incarceration, impeachment is entirely a restorative process. If the Senate votes to convict, it is not the same as a conviction in court. The powers of impeachment are limited to removal from office and disqualification from holding future public office. As such, once the Senate adjourns to deliberation around judgment, they determine which of these actions are warranted by the conviction.

As the likelihood that impeachment articles will pass the House has increased, political pundits have begun to question whether or not the Senate will truncate the trial by adjourning without a vote or dismissing the articles themselves. Some have noted that there was a motion to dismiss during the trial of President Clinton, but there’s necessary context around that motion.

It’s true that a motion was offered by Sen. Robert Byrd (D-W.Va.). The Senate rejected Byrd’s motion by a vote of 44 to 56. Only a simple majority was required. The context around this motion to dismiss was that it was allowed under S.Res. 16 and made in order after House impeachment managers and President Clinton’s counsel made their respective presentations to the Senate and after the questioning of the impeachment managers by senators. In real-time, the articles of impeachment were presented to the Senate on January 7, 1999. The motion to dismiss was filed 18 days later, on January 25. The vote on the motion took place on January 27. The vote on the two articles didn’t occur until February 12, 1999.

It’s worth noting that the supplemental rules like those passed by the Senate in January 1999 were seen by House impeachment managers as restrictive. The view at the time was that the trial of President Clinton was an inconvenience because the Senate wasn’t very likely to convict on either of the articles of impeachment and presented a political problem due to President Clinton’s popularity. According to Pew Research Center, President Clinton had a 71 percent approval rating when he was impeached by the House in December 1998 and House Republicans lost a net four seats in the 1998 midterm election. Although Republicans kept majorities in both chambers, the losses in the House during a midterm election led to then-Speaker Newt Gingrich (R-Ga.) to resign. The supplemental rules, crafted on a bipartisan basis, reflected these sentiments.

S.Res. 16 not only included the motion to dismiss, but it also included the deadlines for President Clinton to file his response to the Secretary of the Senate and impeachment managers and President Clinton’s counsel to file motions. The resolution established the 24-hour time limit each for the impeachment managers and President Clinton’s counsel to present their cases to the Senate and provided up to an additional 16 hours for questioning from senators and established a process for the impeachment managers and President Clinton’s counsel to call and depose witnesses.

S.Res. 30 provided the procedures for admitting depositions into evidence, as well as motions or objections that may be made and final arguments from the impeachment managers and President Clinton’s counsel. Six hours for final arguments was granted, equally divided. The resolution also authorized subpoenas for depositions of three specific individuals -- Sidney Blumenthal, Monica Lewinsky, and Vernon Jordan -- and detailed the process through which those depositions would be taken. One of the key aspects of these depositions was they were videotaped and only excerpts were shown to senators. Live witnesses were not permitted.

The process is pretty straightforward, but there are details that need to be filled in. Whether Leader McConnell and Leader Schumer will come to a bipartisan agreement on how the trial should be conducted, such as supplemental rules or witnesses, really remains to be seen. Leader McConnell has said that if he and Leader Schumer can’t come to an agreement, he’ll try to move a supplemental rules package with only Republican votes.

Although the rules in Riddick’s Senate Procedure would still apply, if there aren’t 51 votes to advance a supplement package, there could be some chaos, with votes on various procedural motions and calls for witnesses. For example, we know that Sen. Lindsey Graham (R-S.C.) wants Rep. Adam Schiff (D-Calif.), who chairs the House Permanent Select Committee on Intelligence (HPSCI), to testify during the trial. Senate Democrats will, of course, want witnesses who give credibility to the House’s case to testify.

Regardless of the details, it’s highly unlikely that the Senate will convict the President because Senate Democrats need to gain so many votes. The tone of the trial will depend on the vote on the articles of impeachment in the House. As Senator Mike Braun (R-Ind.) put it, “[A]s long as no House Republicans vote for the articles of impeachment, I don’t expect any [GOP] senators to.” The biggest question is whether Leader Schumer will see the writing on the wall and agree to move the trial along like the inconvenience it is.