September 26, 2019

Impeachment in the Senate

Marty Paone

In December 1998, those of us working in the Senate had to dust off the Senate’s Journal of 1868 to see how the Senate should proceed in conducting an impeachment of the President. If the House votes to impeach President Trump, those now working in the Senate will have the advantage of studying a much more recent impeachment journal.

If the House impeaches President Trump, it will then adopt a resolution to notify the Senate of its action. The Senate, however, has a separate set of rules governing impeachments. The Senate, after receiving such notification, will then adopt an order informing the House that it is ready to receive the House managers. Subsequently, the appointed managers will appear before the bar of the Senate to present the articles of impeachment.

After the articles are exhibited, the presiding officer will inform the managers that the Senate will “take proper order on the subject” and will duly inform the House of Representatives when ready for trial. The managers, after delivering the articles of impeachment, then withdraw from the Senate and return and make a verbal report to House.

Next the Senate shall organize for the trial.  The Senate rules, unless an order is agreed to otherwise, provide that:

“Upon such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles…”

After consulting the Supreme Court’s schedule, a day is agreed upon when the chief justice can present himself in the Senate and thereupon is administered the oath by the presiding officer. He then administers the oath to the senators.

After the oaths are administered, the Chair will direct the Sergeant at Arms to make proclamation for the beginning of the trial and the resolution for a summons to the respondent is adopted, directing the President or his legal representatives to appear in the Senate.

In 1999, the summons resolution was S. Res. 16, adopted 1/8/1999 (Vote #1 100-0). S. Res. 16 allowed for the House to present its case and the President’s lawyers to respond to the charges. It established the parameters for each side in making its arguments; for questions by Senators; provided for a vote on a motion to dismiss (majority vote) and a vote on calling witnesses.

Once the House is notified, its managers appear in the Senate on the appointed day and are shown to their assigned seats. The President’s legal team are shown to their seats and the trial begins.

All motions, objections, requests, and actions relating to the procedure of the Senate or relating immediately to the trial made by the parties or their counsel shall be addressed to the presiding officer only, and if he or any senator shall require it, they shall be committed to writing, and read at the Secretary’s table.

If a senator wishes a question to be put to a witness or to a manager or to counsel or to offer a motion or order (except a motion to adjourn) it shall be reduced to writing and put by the presiding officer. This is not the norm for a Senator used to speaking freely.

Under the Senate’s rules, all preliminary or interlocutory questions and all motions shall be argued for not exceeding one hour on each side, unless the Senate otherwise orders.

The Senate began deliberations on President Clinton’s impeachment on January 7, 1999 and the final votes were on February 12th. On January 27, 1999, the Senate voted along party lines against Senator Byrd’s motion to dismiss (44-56 Vote #4) and then on January 28th, S. Res. 30 was adopted along party lines by a vote of 54-44 (Vote #8). It established the timeline for completion of the trial and set the parameters for witness depositions to occur offsite and be recorded on video tape for use, if necessary, on the floor of the Senate using large screen monitors placed in the rear of the Chamber.

Prior to voting on the articles, the Senate met in closed session for three days before voting on February 12, 1999. As you can see from the timeline for President Clinton’s impeachment, the Senate took a little over a month to try the case. The details of the trial’s process involved many, many meetings among staff and senators.

Bob Bauer is an experienced lawyer who served on Senator Daschle’s legal team during President Clinton’s impeachment and who worked for President Obama.  In his January 2019 Law Fare article “Can the Senate Decline to Try an Impeachment Case?”, Bob raised the concern that Majority Leader McConnell might short-circuit the Senate’s response should the House vote to impeach President Trump.

Senator McConnell may want to quickly dispose of such a matter with 23 members of his conference running for reelection in November 2020.  On the other hand, the Republican party’s ability to raise money using the impeachment headline and the belief of some in his party that the House action will drive Republican voters to the polls may pull him in the opposite direction.

Senator McConnell, as Bob points out, is no stranger to the use of the rules and their manipulation using the nuclear option of overturning the Chair. Two months after Bob’s article appeared, McConnell used the tactic again to reduce post-cloture debate time on nominations.

During President Clinton’s impeachment, a motion to dismiss was provided for in the summons resolution, S. Res. 16, after the House managers and the President’s lawyers each had 24 hours to present their cases and the senators then had 16 hours to question the two sides.

While using the nuclear option to overturn the Chair when the Chair is the Chief Justice of the Supreme Court may not be Senator McConnell’s preferred way to hasten the process along, it is possible Senator McConnell may seek an early vote on a motion to dismiss the articles of impeachment.  Time will tell what course of action he’ll choose.