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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.