December 18, 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. Now that the House has voted to impeach President Trump, those currently working in the Senate will have the advantage of studying a much more recent impeachment journal.

The House will now adopt a resolution to notify the Senate of its action. The Senate 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. The oath he’ll administer is as follows:

“Will all Senators now stand and raise your right hand.

“Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald J. Trump, President of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?”

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 almost along party lines against Senator Byrd’s motion to dismiss (44-56 Vote #4), Senator Feingold (D WI) voted no, and then on January 28thS. Res. 30 was adopted along party lines by a vote of 54-44 (Vote #8), one member from each side missed the vote. 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.

Senator McConnell has expressed a desire to replicate the provisions of the Senate’s Summons Resolution for President Clinton, S. Res. 16, though he may want to reduce the time, which was 24 hours for each side to present their arguments, followed by up to 16 hours for Senators to ask questions.

That Resolution also provided for a motion to dismiss to be made following the period for questions and it allowed for a vote on calling witnesses. But it stated that if witnesses were to be permitted then they would first be deposed and the Senate would later decide if they would be needed to testify in person in the Senate Chamber.

Senator Schumer, and the Democrats, however want witnesses to be called and that will need to be negotiated with Senator McConnell. If they can’t achieve a negotiated settlement you may see a floor fight with a vote on a motion to call witnesses. Senator McConnell’s ability to fill the amendment tree is not as useful here as it is when dealing with legislation. In a legislative scenario he fills the amendment tree and a cloture vote occurs, if cloture is invoked the matter moves forward and amendments are tightly limited. That power play won’t work here, cloture is impossible to invoke given the partisan divide and impeachment rules provide for time limits on all motions of one hour per side thus forcing a vote which then opens up another slot for another motion or amendment. McConnell can’t filibuster his own resolution by constantly filling the amendment/motion tree-he’d never get to a final vote using that tactic. Even if he were to succeed in enacting a resolution (not an easy task) that barred witnesses Schumer can still force a vote on the subject, he can file a motion to suspend the Rules or he can ignore the prohibition and offer his motion and when the Chair rules it out of order Schumer can force a vote appealing the Chair’s ruling.

These are just some of the possibilities which make this an interesting Senate procedural Super Bowl for Senate geeks like me. Precedents may be established for future impeachments.

Now that the House has acted, establishing President Trump as the record holder for garnering the most votes to be impeached in history, Speaker Pelosi has indicated she may delay appointing managers and sending the articles over to the Senate until she’s convinced there will be a fair, impartial trial. Majority Leader McConnell has been quite clear that he will not be an impartial juror despite the oath he’ll have to take at the beginning of the trial.

The oath:

“I solemnly swear that in all things appertaining to the trial of the impeachment of President Donald John Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”

Majority Leader McConnell says Speaker Pelosi may be “too afraid” to send the articles over since the House’s work was so “shoddy”. He’s sticking to the line that Democrats wanted to impeach the President from the beginning of his term, ignoring the substance of the charge that the President requested a foreign government to assist in his election.

Speaker Pelosi’s delay may be unprecedented, but ignoring a President’s Supreme Court nomination, denying him even a hearing by the Judiciary Committee was also unprecedented. Time will tell, if President Trump is to be acquitted by the Senate. We may be still waiting as voters head to the polls next November.