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. Trump reportedly favored that strategy, initially, but in a November 21 meeting between White House representatives and Senate Republicans after two weeks of public testimony in the House, sentiment for at least a pro forma trial prevailed, and a tentative plan for a two-week trial was agreed upon.
Now that Nancy Pelosi has publicly announced articles of impeachment will be drafted and acted upon in the House Judiciary Committee, Trump is suddenly talking about an extended trial in which he, his attorneys, and his Senate allies will not simply defend him but will seek to place Joe and Hunter Biden and perhaps other leading Democrats on trial as well (echoing House Republican demands that Adam Schiff and other Trump tormenters be hauled in to testify about their persecution of the president). A true show trial of Democrats may well be a bridge too far for Senate Republicans. But to the extent that Trump can claim dragging the Bidens into the dock is necessary to document the corruption he claims he was seeking to root out in pressuring Ukraine’s president to investigate them, a compliant Senate Republican majority and a Chief Justice trying not to become too central to the proceedings might allow it to happen. But that gets to the murky situation with respect to many aspects of a Senate impeachment trial.
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.
And so, as I noted recently, the scope of the trial, and rules for calling, examining and cross-examining witnesses, are really up in the air, and may depend on how disciplined Republicans (who hold 53 Senate seats) are in doing what the White House and Mitch McConnell tell them to do:
Chief Justice John Roberts, who according to the Constitution will be sworn in as the chief presiding officer (but not the “judge” — the Senate itself is the judge and the jury), can rule on matters of procedure and evidence, but can also be overruled by 51 senators at any time. What will not be in play are the normal rules of evidence in criminal and civil trials; impeachment trials are their own beast.
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 earlier this year:
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” on each article of impeachment.
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:
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?
With the House now considering Xmas as the practical deadline for ending its part of the impeachment-and-removal process, the Senate is looking at a January trial. The length of pas trials has been variable, 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).
The final votes in the Senate will be dramatic but largely anticlimactic, like those in the Clinton trial, more than likely. It takes just one “guilty” verdict to remove a president from office, but that requires 67 votes–or in this case, the defection of 20 Republican senators. Even if a handful of Republican senators (e.g., Romney or a few colleagues who face tough 2020 challenges like Collins and Gardner) declare their independence, Trump will be free to claim exoneration and seek vindication next November as the newly triumphant chieftain of his defiant MAGA constituency.
This post has been updated to reflect new developments.