What to Expect During the Senate Impeachment Trial

 

It begins, the first Senate trial of an impeached President in 21 years, and only the third in our nation’s history.

As a former Secretary of the Senate – the Senate’s chief legislative, financial, and administrative officer – it’s painful to hear pundits and so-called legal experts misinform people. Much of the disinformation and errors seem to be coming from CNN (surprise!) and, of course, the Twitterati. I’m happy to help set the record straight.

First, the Senate’s role is not synonymous with that of a jury. Juries do not compel the attendance of witnesses, but the Senate can. The Chief Justice of the Supreme Court will preside over the trial and may issue rulings on such matters as the admissibility of evidence. But a majority of the Senate can overrule the Chief Justice, not vice versa. More likely is that instead of ruling on a contentious issue, Chief Justice John Roberts will simply submit a request to rule to a majority vote (then-Chief Justice William Renquist did that during the 1999 Clinton impeachment trial). By the way, there is no debate when the Senate votes on whether to rule or to overturn the ruling of a chair. I highly recommend reading Federalist 65, written by Alexander Hamilton, which outlines the thought process behind the Framer’s somewhat unique impeachment process, as outlined in Article I of the Constitution (sections 2 and 3).

Second, Senate procedures and guidelines for impeachment trials are spelled out in a 1986 resolution, and are deeply rooted in what is called “precedent.” The Senate’s Majority Leader, Mitch McConnell’s (R-KY) insistence on following the outline of Clinton’s impeachment trial helped keep his caucus unified. Precedent matters a lot in the Senate until Senators (or, in some cases, 2/3rds of them) decide to change them.

The Senate’s rules leave the matter of “calling witnesses” to the “prosecution” and the “defense.” The Senate compels the attendance of witnesses. The issue of witnesses will be resolved later. Also, there’s plenty of flexibility to have some witnesses deposed versus having them serve as a “live witness” on the Senate floor. There were no live witnesses during the Clinton trial, and ultimately, I don’t think we’ll see any during this trial, either (depositions are more likely). Regardless, there will be no imbalance of witnesses as we saw during the House’s highly partisan and anti-Constitutional impeachment process. If the Senate compels a Democratic witness to attend, they will do no less for the President. Ultimately, Democrats have to think hard whether calling witnesses is ultimately in their interest, given whom the President and his team could call, and how that would play, given the paucity of any credible evidence of “high crimes and misdemeanors.”

According to US Sen. James Lankford (R-OK), the House managers (the prosecution) and the President’s attorneys will each have a total of 24 hours to make their respective cases. Senators then have 16 hours to submit questions, in writing, to the Chief Justice. After that, the Senate leaders will work out the matter of whether witnesses will be called, how they will testify, and how many.

Once closing arguments conclude, the Senate will deliberate behind closed doors. Senate may try to open the proceedings, but that would likely require a rules change, requiring a 2/3rds vote.

There appears to be no appetite among Senators from either party for a lengthy trial — my prediction is a two-week, maybe three-week trial. And yes, it will take 67 votes, or two-thirds of those present and voting to remove the President. I’ve been asked whether some Senators, such as those who’d rather be campaigning for President in Iowa, New Hampshire, and South Carolina could simply recuse themselves or skip out on the proceedings. The rules do not specifically compel the attendance of Senators, but the Senate could order it, and I can’t imagine The Left excusing the Senator from what they see as his or her “responsibility” to vote to remove Trump from office. Having said that, there is nothing to preclude the Senate from officially excusing a Senator from the impeachment trial — it’s been done several times (but not for Presidential impeachments).

There’s no “punishment” legally for Senator not participating, but I’d bet there would be plenty of political punishment. Also, I don’t see much support among Senators, Democratic or Republican, for an early motion to dismiss the Articles. But let’s see how the opening statements fare in the court of public opinion, and how the answers to written questions go.

Another wrinkle – there is a second constitutional form of punishment, and that is precluding the removed official from ever seeking public office again. One unique aspect of the Trump impeachment is that he is also a candidate for election, unlike Andrew Johnson in 1868 or Bill Clinton in 1999. If Senators vote to remove Trump from office, it would only take a simple majority to deny him the ability to seek the presidency.

Most observers expect the Senate to exonerate the President. But the trial will be interesting with lots of twists and turns. Consistent with the Trump era, surprises are always possible.

POSTSCRIPT: A new canard has emerged – that the Chief Justice, in his role as the Senate’s presiding officer during the Senate impeachment trial, can cast a vote to break a tie. It’s based on then-Chief Justice Salmon Chase – former Senator, former presidential candidate and former Lincoln cabinet official – being allowed to break two tie votes on procedural issues during the trial of President Andrew Johnson. But it won’t happen today. First, the Constitution only grants the Vice President – the President of the Senate – the power the cast a tie-breaking vote (and it is the only time he or she is permitted to cast a vote). No other presiding officer, not the Secretary of the Senate or the Chief Justice may cast a vote under any circumstance. As noted previously, The Senate Procedures and Guidelines for Impeachment Trials allow the Chief Justice issue rulings on process and evidence, but voting to break ties is not among them. And his rulings can be overturned by a majority vote of the Senate. 

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  1. DrewInWisconsin, Oaf Member
    DrewInWisconsin, Oaf
    @DrewInWisconsin

    What to Expect During the Senate Impeachment Trial

    One word: “Grandstanding.”

    • #1
  2. tigerlily Member
    tigerlily
    @tigerlily

    Very informative. Thanks Bucknelldad.

    • #2
  3. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    Yes, thank you for the information. It will be a valuable tool for the coming weeks.

    • #3
  4. Jon1979 Lincoln
    Jon1979
    @Jon1979

    Bucknelldad: The rules do not specifically compel the attendance of Senators, but the Senate could order it, and I can’t imagine The Left excusing the Senator from what they see as his or her “responsibility” to vote to remove Trump from office. Having said that, there is nothing to preclude the Senate from officially excusing a Senator from the impeachment trial – it’s been done several times (but not for Presidential impeachments).

    I could see Bernie or Liz using a “This trial is rigged” scenario to justify leaving the Capitol to go campaign, even if that were to mean missing the vote — they’d levy a broadside at McConnell and Trump, saying they’ve already set things up for acquittal, and they’re not going to sit in Washington and be a part of the charade when they can be working in Iowa or New Hampshire to end the corruption of the Republicans and their millionaire billionaire friends.

    Their demonstration would then be praised by the usual sources as speaking Truth to Power, and they would push the talking point of the brave Democratic Senator being something of a martyr if they were dragged back to the Senate chambers on McConnell’s orders (of course, if you think Bernie or Liz would be easier to beat in November than Biden, you want them in Iowa or New Hampshire, and the GOP leadership might action want to play along with this little act of political theater).

    • #4
  5. PHCheese Inactive
    PHCheese
    @PHCheese

    Jon1979 (View Comment):

    Bucknelldad: The rules do not specifically compel the attendance of Senators, but the Senate could order it, and I can’t imagine The Left excusing the Senator from what they see as his or her “responsibility” to vote to remove Trump from office. Having said that, there is nothing to preclude the Senate from officially excusing a Senator from the impeachment trial – it’s been done several times (but not for Presidential impeachments).

    I could see Bernie or Liz using a “This trial is rigged” scenario to justify leaving the Capitol to go campaign, even if that were to mean missing the vote — they’d levy a broadside at McConnell and Trump, saying they’ve already set things up for acquittal, and they’re not going to sit in Washington and be a part of the charade when they can be working in Iowa or New Hampshire to end the corruption of the Republicans and their millionaire billionaire friends.

    Their demonstration would then be praised by the usual sources as speaking Truth to Power, and they would push the talking point of the brave Democratic Senator being something of a martyr if they were dragged back to the Senate chambers on McConnell’s orders (of course, if you think Bernie or Liz would be easier to beat in November than Biden, you want them in Iowa or New Hampshire, and the GOP leadership might action want to play along with this little act of political theater).

    Bernie is neither Democrat or Republican he is a Independent that  caucuses  With Democrats. I bring this up but don’t know if it effects anything.

    • #5
  6. MichaelKennedy Inactive
    MichaelKennedy
    @MichaelKennedy

    I am undecided on my preference for witnesses.  Steve Bannon, who I think is the smartest guy in politics now, wants a full trial with witnesses, including both Bidens and Ciamarelli, the “whistle blower.”

    https://theconservativetreehouse.com/2020/01/12/sunday-talks-steve-bannon-discusses-senate-impeachment-trial-and-connects-to-bigger-picture/

     

    • #6
  7. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Bucknelldad: According to US Sen. James Lankford (R-OK), the House managers (the prosecution) will have 24 hours to make their case. The President’s lawyers or representatives will also have 24 hours in defense. Senators then have 16 hours to submit questions, in writing, to the Chief Justice. After that, the Senate leaders will work out the matter of whether witnesses will be called, how they will testify, and how many.

    Maybe this answer is obvious, but how will the hours be spent. When the House Managers have 24 hours, is that 8 hours over three days or 10 hours over 2.5 days, or do they decide as they go along? The same question applies to all the other “hourly” questions–how they are allotted.

    • #7
  8. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Given that the Chief Justice oversees the FISA court that authorized the spying on Trump I suspect we can just put the Chief Justice down as bias against POTUS and will rule against him on  most things.  

    • #8
  9. Manny Member
    Manny
    @Manny

    I don’t intend to watch even a minute of this.  The charges are a sham, and the House is a disgrace for going through with it.  I don’t intend to do it any honors.  I guess I will catch a clip or two since lately I’ve returned to watching Special Report w/ Bret Baier on evenings.  But maybe I’ll boycott even that until the trial is over.

    • #9
  10. Manny Member
    Manny
    @Manny

    DrewInWisconsin, Oaf (View Comment):

    What to Expect During the Senate Impeachment Trial

    One word: “Grandstanding.”

    Actually your avatar reminds me of a man grandstanding…lol.  Just the pose.  

    • #10
  11. The Cloaked Gaijin Member
    The Cloaked Gaijin
    @TheCloakedGaijin

    PHCheese (View Comment):

    Bernie is neither Democrat or Republican he is a Independent that caucuses With Democrats. I bring this up but don’t know if it effects anything.

    I think he’s currently a Democrat — whenever he runs for president.

    From wikipedia >> Political party: Democratic (2015–2016; 2019–present)

    • #11
  12. Cato Rand Inactive
    Cato Rand
    @CatoRand

    Awesome post.  Thank you!  My only quibble is with the word “exonerate” in the last paragraph.  I know it will be spun that way, but a vote not to remove is not necessarily an exoneration.  In this case, it’ll very likely mean “guilty of the charges but not meriting removal” for most Senators (at least on the first article, the second article is just an embarrassment).  In any event, I’m not sure I’d  call that an “exoneration.”

    • #12
  13. DrewInWisconsin, Oaf Member
    DrewInWisconsin, Oaf
    @DrewInWisconsin

    Manny (View Comment):

    DrewInWisconsin, Oaf (View Comment):

    What to Expect During the Senate Impeachment Trial

    One word: “Grandstanding.”

    Actually your avatar reminds me of a man grandstanding…lol. Just the pose.

    My daughter snapped that one day at church, so I decided to put it to use. ; )

    • #13
  14. Bill Nelson Inactive
    Bill Nelson
    @BillNelson

    If a witness is called, and provides false testimony, what would be the result? In a legal trial, a witness can be held in contempt of court, or even charged.

    And would Roberts hold witness to standard rules for testimony, such as not be able to testify to the state of mind of another?

    Will the attorneys be able to raise objections? I would expect Trump’s attorney’s to object to every third word from Adam Schiff.

    It may be interesting, but it will likely be just more political theater.

    Now, if Trump uses Guilliani as his council, you have something to watch.

     

    • #14
  15. The Cloaked Gaijin Member
    The Cloaked Gaijin
    @TheCloakedGaijin

    The Chief Justice of the Supreme Court will preside over the trial…

    What happens if the Chief says, “Take this job and shove it”? 

    … Then Trump and the Senate spend 5 minutes confirming a new Chief say around Ben Shapiro’s age? 

    • #15
  16. DrewInWisconsin, Oaf Member
    DrewInWisconsin, Oaf
    @DrewInWisconsin

    The Chief Justice of the Supreme Court will preside over the trial…

    Roberts, the guy who saved Obamacare. I don’t trust him.

    • #16
  17. Manny Member
    Manny
    @Manny

    DrewInWisconsin, Oaf (View Comment):

    Manny (View Comment):

    DrewInWisconsin, Oaf (View Comment):

    What to Expect During the Senate Impeachment Trial

    One word: “Grandstanding.”

    Actually your avatar reminds me of a man grandstanding…lol. Just the pose.

    My daughter snapped that one day at church, so I decided to put it to use. ; )

    Compliments to your daughter.  That’s an excellent photo.

    • #17
  18. Bucknelldad Coolidge
    Bucknelldad
    @SoupGuy

    Bill Nelson (View Comment):

    If a witness is called, and provides false testimony, what would be the result? In a legal trial, a witness can be held in contempt of court, or even charged.

    And would Roberts hold witness to standard rules for testimony, such as not be able to testify to the state of mind of another?

    Will the attorneys be able to raise objections? I would expect Trump’s attorney’s to object to every third word from Adam Schiff.

    It may be interesting, but it will likely be just more political theater.

    Now, if Trump uses Guilliani as his council, you have something to watch.

     

    Those are excellent questions. The Senate can vote to hold someone in contempt, and don’t be surprised if someone like Sen. Lindsay Graham doesn’t threaten a motion or resolution to do that if he catches Adam Schiff in some whoppers. There is no provision for, example, the President’s attorneys to raise objections to the House Democratic Managers, or vice versa, but Senators may object to questions raised by. . . Other senators. It will most certainly be political theater – count on it. And if Giuliani does get a role. . .OMG. But, could he be called as a witness – by the President? I think it is more likely he follows up on Sen. Graham’s invitation to testify before the Sen. Judiciary Committee. 

    • #18
  19. danok1 Member
    danok1
    @danok1

    DrewInWisconsin, Oaf (View Comment):

    The Chief Justice of the Supreme Court will preside over the trial…

    Roberts, the guy who saved Obamacare. I don’t trust him.

    Looking for a silver lining, I note that in the Senate “trial”, the Chief Justice of the United States only has the power accorded him by the Senate Rules and Procedures. Which, giving said rules a quick look, isn’t as much as one might think, especially since a simple majority can overrule any decision he makes. He will keep things moving along, keep the House & Senate managers to the time allotted, make initial rulings on evidence  (which will be treated as advisory opinions, since the Senate can overrule him), etc. Roberts won’t be able to make a final ruling that “splits hairs) as he did with the ACA.

    • #19
  20. tigerlily Member
    tigerlily
    @tigerlily

    Cato Rand (View Comment):

    Awesome post. Thank you! My only quibble is with the word “exonerate” in the last paragraph. I know it will be spun that way, but a vote not to remove is not necessarily an exoneration. In this case, it’ll very likely mean “guilty of the charges but not meriting removal” for most Senators (at least on the first article, the second article is just an embarrassment). In any event, I’m not sure I’d call that an “exoneration.”

    Sure, partisans will see what they want to see if the articles fail as they are expected to. However, if a Motion to Dismiss passed and the whole thing fell away on that basis it’d be hard to argue anything other than the President was “exonerated.”

    • #20
  21. Bucknelldad Coolidge
    Bucknelldad
    @SoupGuy

    My friend, Stewart Verdery, is the head of a Washington lobby firm who was a Senate GOP leadership staff member during the 1999 Clinton impeachment trial. He penned an excellent set of insights and predictions that I’m happy to link here and recommend. I agree with him that this could get very contentious with motions and countermotions on everything from the admissibility of evidence to which witnesses to compel. 

    • #21
  22. cdor Member
    cdor
    @cdor

    DrewInWisconsin, Oaf (View Comment):

    What to Expect During the Senate Impeachment Trial

    One word: “Grandstanding.”

    Actually Drew…well, of course, you’re correct…but not as much as usual. The Senators function as jurors and are not allowed to speak. All questions, as was pointed out in Bucknelldad’s very informative and apparently authoritative explanation are sent in hand-written form to the Chief Justice. I do not know if the answers are also hand-written in return.

    • #22
  23. DrewInWisconsin, Oaf Member
    DrewInWisconsin, Oaf
    @DrewInWisconsin

    cdor (View Comment):

    DrewInWisconsin, Oaf (View Comment):

    What to Expect During the Senate Impeachment Trial

    One word: “Grandstanding.”

    Actually Drew…well, of course, you’re correct…but not as much as usual. The Senators function as jurors and are not allowed to speak. All questions, as was pointed out in Bucknelldad’s very informative and apparently authoritative explanation are sent in hand-written form to the Chief Justice. I do not know if the answers are also hand-written in return.

    HA! Democrats don’t have to follow rules, silly person.

    • #23
  24. Barfly Member
    Barfly
    @Barfly

    MichaelKennedy (View Comment):

    I am undecided on my preference for witnesses. Steve Bannon, who I think is the smartest guy in politics now, wants a full trial with witnesses, including both Bidens and Ciamarelli, the “whistle blower.”

    https://theconservativetreehouse.com/2020/01/12/sunday-talks-steve-bannon-discusses-senate-impeachment-trial-and-connects-to-bigger-picture/

     

    The picture of Joe and Hunter squirming under the bright lights is tempting, but then I remember that I see things with different eyes from most people. You do too, I’m sure. Every day that impeachment is in play is a risk that none of us can quantify.

    • #24
  25. danok1 Member
    danok1
    @danok1

    DrewInWisconsin, Oaf (View Comment):
    HA! Democrats don’t have to follow rules, silly person.

    Fact check: 100% true.

    • #25
  26. cdor Member
    cdor
    @cdor

    DrewInWisconsin, Oaf (View Comment):

    cdor (View Comment):

    DrewInWisconsin, Oaf (View Comment):

    What to Expect During the Senate Impeachment Trial

    One word: “Grandstanding.”

    Actually Drew…well, of course, you’re correct…but not as much as usual. The Senators function as jurors and are not allowed to speak. All questions, as was pointed out in Bucknelldad’s very informative and apparently authoritative explanation are sent in hand-written form to the Chief Justice. I do not know if the answers are also hand-written in return.

    HA! Democrats don’t have to follow rules, silly person.

    How could I have forgotten! The eleventh commandment.

    • #26

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