What We Know — and Don’t Know — About Trump’s Potential Impeachment Trial

McConnell has explained impeachment trial rules to his Caucus, but rules can always be changed. Photo: Win McManee/Getty Images

Though the primary focus of attention in the impeachment saga is how the House proceeds toward formal articles of impeachment, the Senate’s role if Trump is in fact impeached is important and controversial as well. Just ask Bill Clinton — or the ghost of Andrew Johnson — since both of these impeached presidents were acquitted by the Senate. How a Senate trial will actually play out is a complicated question.

What Does the Constitution Say About an Impeachment Trial?

It’s helpful to understand that for both chambers, the U.S. Constitution doesn’t spell out a whole lot beyond specifying that the House has the “sole power” to impeach executive and judicial branch officials for “Treason, Bribery, and other High Crimes and Misdemeanors” and that the Senate has the “sole power” to remove impeached officials by a two-thirds vote if they are found guilty of such charges. We know that the Founders also provided that for presidential impeachments the chief justice of the Supreme Court will be the Senate’s presiding officer, which was intended to avoid putting a vice-president, who might inherit the presidency if a removal did occur, in the chair. So the two things we absolutely know from the Constitution are that Chief Justice John Roberts will preside over a trial and that Trump can only be removed from office if two-thirds of the Senate votes to eject him. Beyond that, House and Senate rules, and ad hoc decisions made by the two chambers about matters not specified in the rules, decide pretty much everything other than the evidence itself.

Does the Senate Have to Hold a Trial If the House Impeaches Trump?

Constitutional authorities differ on this question, which is germane because Trump himself keeps claiming that any House impeachment over the Ukraine scandal (and probably anything else) is “unconstitutional” or at least unwarranted. In theory, the man who runs the Senate, Majority Leader Mitch McConnell, could agree with that assessment and refuse to hold a trial. And because the courts are extremely reluctant to intervene in “political questions” involving executive–legislative collisions, he might get away with it.

But in fact, McConnell has repeatedly said he would indeed hold a trial — too many times to reverse himself, in all probability, as the Hill reports:

“Under the impeachment rules of the Senate, we’ll take the matter up. The chief justice will be in the chair … We intend to do our constitutional responsibility,” he said.

McConnell had previously indicated that he would have “no choice” but to take up impeachment if the House passes articles, though he has also [run] a Facebook ad over the recent two-week recess positioning himself and the GOP-controlled Senate as a roadblock to Trump being removed from office.

Could the Senate Have a Perfunctory or Truncated Trial?

Again, McConnell has been talking as though there will be a real trial, but means are available to cut it short, as Democrats tried to do during the impeachment trial of Bill Clinton. There was some discussion of this possibility at a closed meeting of Senate Republicans this week, where McConnell led a discussion of trial procedures, as BuzzFeed’s Paul McLeod reports:

Several Republicans said they would not support using a procedural motion to dismiss to avoid an impeachment trial. But this does not rule out using one at some point to end the trial midway. A motion to dismiss can be brought forward by either the House or White House lawyers and would need a majority vote to end the trial. (Republicans could do this on their own.)

Sen. Thom Tillis said that if the trial is underway for two or three weeks and the only evidence put forward is the whistleblower complaint and the transcript of Trump’s Ukrainian call, there would “probably” be enough Republican support to pass a motion to dismiss.

During the Clinton impeachment trial, senators unanimously voted to allow Democratic Sen. Robert Byrd to put forward a motion to dismiss two weeks into the trial. The motion failed.

Had Democrats constituted a Senate majority then, as Republicans do now, that vote might have gone the other way. Another way to cut things short would be a motion to adjourn, which could pass on a party-line vote. Indeed, during the Senate trial of Andrew Johnson in 1868, the Senate did just that after the president was acquitted on three articles of impeachment; no votes were held on the remaining eight articles.

What Governs the Conduct of the Senate Trial?

Regardless of how it begins or ends, the trial itself is governed by standing Senate rules, last modified in 1986. They are largely based on precedents set in the Andrew Johnson trial. The basic idea is that articles of impeachment are presented to the Senate by House impeachment managers, and are then disputed by counsel for the president, with senators observing but not becoming directly involved (other than by written questions submitted to one or both of the parties). Witnesses are called and cross-examined according to protocols and timelines adopted by the Senate just before the trial begins on a majority vote. During the Clinton impeachment proceedings, they were (somewhat miraculously) adopted by unanimous consent, in part because the outcome of the trial was in zero doubt. Even though the outcome of a Trump trial may also be preordained (e.g., acquittal on a more or less party-line vote), any bipartisan procedural agreements are unlikely.

Are Senators Under a Gag Order on Impeachment?

One aspect of the trial procedure as spelled out by the standing rules was alluded to by McConnell in his discussions with his Republican colleagues this week:

McConnell … warned that senators won’t be allowed to speak because they are jurors. McConnell said such silence “would be good therapy for a number of them.”

More accurately, senators are like jurors — and judges, too — in that they observe the back-and-forth between House managers and their lawyers and the president and his lawyers and don’t have an opportunity to speak until they go into a closed session to deliberate. The standing rules also provide that when it comes time to vote, each senator stands by her or his desk and simply announces “guilty” or “not guilty.”

It’s also worth keeping in mind that Senate’s standing rules are subject to amendment, which would normally require a supermajority. But as Bob Bauer observed at Lawfare blog, there are ways around that problem for a devious operator like McConnell:

Senate leadership can seek to have the rules “reinterpreted” at any time by the device of seeking a ruling of the chair on the question, and avoiding a formal revision of the rule that would require supermajority approval. The question presented in some form would be whether, under the relevant rules, the Senate is required to hold an impeachment “trial” fully consistent with current rules — or even any trial at all. A chair’s ruling in the affirmative would be subject to being overturned by a majority, not two-thirds, vote.

In any event, the “silence” expected of senators is not imposed until the articles of impeachment are passed by the House and presented to the Senate — i.e., until the trial begins. So when you hear senators say they won’t comment on impeachment charges or the possibility of “impeachable offenses” having been committed to avoid prejudging a “case” they may try as “jurors,” that’s a purely voluntary and informal assertion. From the perspective of the Constitution and the standing Senate rules, they can run their mouths all they want before and after the trial. But some may choose to hide behind the “prospective juror” fiction to keep their own counsel, as became clear when Lindsey Graham proposed sending a letter to Nancy Pelosi informing her that the Senate had no intention of removing Trump from office over the Ukraine scandal, as the Hill reported:

Several, including Sens. Mitt Romney (R-Utah) and Susan Collins (R-Maine), have declined to weigh in on the impeachment proceedings and admonished their colleagues who have already made a decision.

Collins, one of two GOP senators up for reelection in a state won by Hillary Clinton, told reporters in Maine that it was “entirely inappropriate” for senators to be taking a position.

Romney declined to comment on Wednesday on Graham’s letter, but he said last week that he was going to keep “an open mind” on impeachment.

“It’s a purposeful effort on my part to stay unbiased, and to see the evidence as it’s brought forward,” he said.

Other Senate Republicans are reportedly raining on Graham’s parade, not because they believe they are required to remain silent but because they don’t want to display any Republican disunity or place vulnerable senators on record this early in the process.

What’s unclear is whether the tradition of senators not speaking during the trial imposes some sort of restriction on comments during evenings, early mornings, Sundays or other times the trial is not in session. This question is of particular importance to the Democratic senators (currently six of them) who are running for president. The trial will undoubtedly interfere with their campaign activities, but it’s unclear whether some ad hoc Senate rule or ruling from the presiding officer (the Chief Justice) will constrain their free speech rights until the final vote.

When Will the Trial, If There Is One, Begin and End?

McConnell has warned his troops they should be ready to begin a trial by Thanksgiving, though of course, he has zero control over the key factor: when the House passes articles of impeachment. The duration of the trial depends on all the factors mentioned above and others: the number of articles, the rules adopted by the Senate for calling and examining witnesses, and how contentious it all becomes (likely very contentious given the generally polarized atmosphere, Trump’s own personality, and the proximity of the 2020 elections). The precedents suggest it could go pretty quickly, as I recently observed:

The Johnson impeachment trial in 1868 lasted from March 5 until May 16, when the Senate’s first crucial “test vote” on a catch-all article of impeachment failed by one vote. Ten days later the Senate voted predictably to acquit on two other articles, and subsequently voted for general acquittal and adjournment.

Clinton’s impeachment trial was more hurried: It began on January 7, 1999, when presiding officer Chief Justice William Rehnquist was sworn in, and ended on February 12, with Clinton’s easy acquittal on both articles (45 senators, all Republicans, voted for his guilt on the perjury article, with ten Republicans defecting; and 50 senators vote for the obstruction article, with five Republicans defecting).

So one senator’s prediction of a Thanksgiving-to-Christmas trial of Trump doesn’t sound completely outlandish, particularly since the standing Senate rules stipulate that the trial remain in session six days a week (with only Sundays off). But now that House Democrats are treating Xmas as their own deadline for wrapping up their part of the impeachment process, a trial that runs into 2020 is looking more and more likely.

In widely reported remarks on November 12, Senate Intelligence Committee Chairman Richard Burr made a prediction that probably reflects Mitch McConnell’s current thinking (per the Washington Post):

[T]he day we take it up, we go into session six days a week, from 12:30 until 6:30. Can’t say anything. The House are the prosecutors. The president’s lawyers are the defense attorneys. They hash it out. The chief justice of the Supreme Court comes in and he rules.”

Burr added that the role of senators is to “basically hear the case, and then we have to come to a verdict.”

“That will probably be six or eight weeks of process,” he said. “And at the end of the day, will there be more than what the American people know today? I don’t know.”

In any event, it’s going to be a wild ride. But at this point, Senate Republicans as a whole plan to protect their president while at least minimally complying with traditional procedures.

This post has been updated to reflect new developments.

Trump’s Potential Senate Impeachment Trial: What We Know