The Atlanta Journal-Constitution
» Senate trial: Beyond a few basics, much will depend on rules set in advance,
Beyond a few basics, much will depend on rules set in advance.
If the House votes, as expected, to impeach President Donald Trump, the first half of the process to remove a president from office will be over. What would come next is a Senate trial to decide whether, based on the House’s impeachment recommendation, senators should vote to convict the president, ending his tenure and possibly preventing him from running again.
There are rules from the 1980s about how to run a Senate trial, but they’re intentionally vague on the really important things: what kind of evidence can be shared, how long it should be, and how the defense and prosecution should present their cases.
Here’s what we know about a Senate impeachment trial — and what we don’t.
What we know
The timing is specific: A trial has to begin shortly after the House impeaches the president. Here’s what that looks like with the Christmas break, according to leader Mitch McConnell on the Senate floor last week: “Assuming that House Democrats send us articles of impeachment next week, a Senate trial will have to be our first item of business in January.”
It also has to be six days a week, for at least part of the day, and senators can’t do any legislative business in the hours the trial is going on. But there are no rules about how long it has to go every day, nor how many weeks it has to last.
The chief justice of the United States, John Roberts, will preside: For impeachment trials of judges, the vice president presides, but the rules assume the vice president would be biased on impeachment of the president.
Trump can appoint his counsel: It’s generally understood they need to be personal, not White House lawyers. They can give opening and closing statements and question any witnesses.
House Democrats can do the same: They are called impeachment managers. The House will select lawmakers who will be the prosecution, examining and cross-examining witnesses as Trump’s lawyers can.
This is not exactly like a criminal trial: For example, senators are both the judge and the jury, and they can even be called as witnesses.
This has to be done in the open: Especially the vote. The only time senators can go behind closed doors is to deliberate, says Josh Chafetz, a constitutional expert at Cornell Law School.
Senators don’t have to be there to vote, either, and any absences would lower the twothirds majority it takes to convict Trump.
But Chafetz had a hard time seeing any lawmakers getting away with skipping such a consequential vote.
There is precedent for bipartisan cooperation: The Clinton impeachment trial was remembered as civil and bipartisan. Former Senate historian Donald Ritchie: “The Senate went out of its way to write rules that would be fair to both sides and to conduct itself in a dignified manner.” In fact, the top Republican and top Democratic senators got a standing ovation from all other senators after the trial was done “for averting the bitter partisanship that consumed the House during its impeachment debate,” the Washington Post reported at the time.
But the history of impeachment (of presidents or judges) suggests that what happens in the House influences Trump’s fate in the Senate: “Whenever there’s been a bipartisan vote in the House, there has been a substantial bipartisan vote in the Senate on impeachment. Every time there has been a party-line vote in the House, there has been a substantial party-line vote in the Senate,” Ritchie said. The House vote to impeach Trump broke mostly along party lines.
What we don’t know
Who will be called as witnesses, whether the Senate can subpoena people and whether the Senate will take new evidence: The Senate doesn’t even have to call witnesses. McConnell this week rejected a call from his Democratic counterpart, Minority Leader Chuck Schumer, to subpoena new witnesses for the proceedings. (In the Clinton trial, they had Monica Lewinsky testify via previously videotaped interviews, and Chafetz said they decided against allowing new witness testimony.)
How Roberts will handle his role as overseer: McConnell doesn’t have to just get a majority of senators on board with what he wants to do. He has to get it by Roberts, who will be ruling on whether anything senators want to do, such as admitting evidence, fits within their predetermined rules. (A supermajority could overrule Roberts, but Sarah Burns, a constitutional law expert at Rochester Institute of Technology, says there’s also a complicated parliamentarian maneuver where a simple majority could overrule Roberts’ interpretation of the rules. Republicans only have a three-vote majority over Democrats, so they don’t have a ton of wiggle room to drastically change the rules once they’re set.)
Roberts can do battle with the Senate on his interpretation of the rules, or he can largely defer to them: Supreme Court watcher Russell Wheeler says he thinks Roberts will lean toward deference. The chief justice overseeing the Clinton trial, William Rehnquist, said proudly when it was all over: “I did nothing, and I did it particularly well.” And Rehnquist’s assistant during that trial is now a close aide to Roberts.
“As chief justice, he does want to protect the court,” Wheeler said. “He doesn’t want the court to get involved in sideshows about whether his actions in the impeachment trial shed light or had influence about the decisions he makes as a justice on Supreme Court cases.”