The Clinton Trial Rules That Are Shaping Trump’s Trial

Senators being sworn in at the beginning of the 1999 impeachment trial of Bill Clinton. Photo: Wally McNamee/Corbis via Getty Images

The Senate impeachment trial of Donald Trump has revolved around competing partisan claims of how the trial should proceed, with Democrats demanding witness appearances by key figures the administration kept from testifying in the House, and Republicans either denying the need for witnesses or arguing that consideration of that option should be deferred until the argument stage of the trial is completed. Republicans actually won on this last point in a rules vote on the first day of the trial.

Interestingly, though, both sides have argued all along that they simply want to follow the precedent set in the last presidential impeachment trial, the 1999 trial of Bill Clinton. So it’s helpful to understand how that trial did and didn’t differ from the way this one is rolling out.

Senate impeachment trials are guided by minimal constitutional requirements, including a two-thirds-vote requirement for removing the president, a specified role for the chief justice as presiding officer (to avoid the conflict of interest represented by a vice-president who could benefit from removal of the president sitting in the chair), and the same “high crimes and misdemeanors” standard set for impeaching presidents in the House.

Beyond these requirements, guidelines for impeachment trials are set by standing Senate rules, mostly adopted following the Andrew Johnson impeachment trial of 1868, and last amended in 1986 (long before the Clinton trial). It takes 67 votes to change the standing Senate rules, which stipulate a quick beginning for trials after articles of impeachment are received and which require a six-days-a-week trial schedule until the final vote. The standing rules structure the trial around arguments presented by House impeachment managers and the president’s counsel, with senators remaining silent (though they can send written questions up to the presenters), except for votes on motions and (of course) the final “guilty/not guilty” vote on removal. There are provisions for rulings from the chair on motions for evidence and witnesses, but in every case a majority of the Senate can overrule the chief justice.

Details at a level of specificity beyond those addressed in the standing rules have been addressed in the past in ad hoc rules adopted at the beginning of the Senate trial, if at all. Demands for a bipartisan deal on these ad hoc rules, including provisions for hearing selected witnesses, were advanced by Senate Minority Leader Chuck Schumer and then by House Speaker Nancy Pelosi, who withheld transmittal of the articles of impeachment (necessary to trigger a trial) until January 16. Such rules can be adopted by a simple majority, as long as they do not contradict the standing rules. Somewhat miraculously, they were passed unanimously in 1999. This time they passed on a strict party-line vote after multiple failed Democratic amendments that would have provided for admission of new testimony and documents.

The first two things you notice about the Clinton trial rules, which were adopted immediately after the impeachment trial was convened, is that they are businesslike and relatively brief. Here’s the bulk of the resolution:

Resolved, that summons be issued in the usual form provided, that the President may have until 12 noon on Monday, Jan. 11, to file his answer with the secretary of the Senate and the House have until 12 noon on Jan. 13 to file its replication with the secretary of the Senate, together with the record, which will consist of those publicly available materials that have been submitted to or produced by the House Judiciary Committee, including transcripts of public hearings or markups, and any materials printed by the House of Representatives or House Judiciary Committee, pursuant to House Resolutions 525 and 581. Such record will be admitted into evidence, printed and made available to senators.

If the House wishes to file a trial brief, it shall be filed by 5 P.M. on Jan. 11.

The President and the House shall have until 5 P.M. on Jan. 11 to file any motions permitted under the rules of impeachment, except for motions to subpoena witnesses or to present any evidence not in the record.

Responses to any such motion shall be filed no later than 10 A.M. on Jan. 13.

The President may file a trial brief at or before that time.

The House may file a rebuttal brief no later than 10 A.M. on Jan. 14. Arguments on such motions shall begin at 1 P.M. on Jan. 13, and each side may determine the number of persons to make its presentation, following which the Senate shall deliberate and vote on any such motions.

Following the disposition of these motions, or if no motions occur, then at 1 P.M. on Jan. 14 the House shall make its presentation in support of the articles of impeachment for a period of time not to exceed 24 hours. Each side may determine the number of persons to make its presentation.

The presentation shall be limited to argument from the record.

Following the House presentation, the President shall make his presentation for a period not to exceed 24 hours, as outlined in the paragraph above with reference to the House presentation.

Upon the conclusion of the President’s presentation, senators may question the parties for a period of time not to exceed 16 hours.

After all that, the Senate is authorized to entertain a motion to dismiss the articles of impeachment and/or motions to hear witnesses. This is the basis for McConnell’s claim that he is strictly following the “Clinton rules.” But as Democrats keep pointing out, testimony of the key witnesses in the Lewinsky scandal had already been delivered to the House by Ken Starr’s investigation even before the president was impeached. So it was part of the record the Senate had in its hands, and the question of further testimony wasn’t remotely as central as it is in the Trump case, where so much of the story has never been heard. The Clinton White House, moreover, did not fight cooperation with Congress in the way that Trump’s has done, and in the end, the Senate that tried Clinton had three witnesses deposed, though it did not insist on live testimony.

However the question of witnesses plays out, the Trump trial will end as the Clinton trial did: with a final vote, and in the standing rules it is required that each senator simply “rise in place” and announce a vote of “guilty” or “not guilty.” In the Clinton trial, only 45 senators voted “guilty” on the first article of impeachment, based on presidential perjury, and 50 voted “guilty” on the second article, involving obstruction of justice. As with Clinton, the votes to remove Trump from office will almost certainly fall far short of the two-thirds required. But unlike Clinton, Trump will be facing voters again, in less than ten months.

The Clinton Trial Rules That Are Shaping Trump’s Trial