January 19, 2021

Take Two: Impeachment in the Senate

Marty Paone

(Photo by Alex Wong/Getty Images)

Now that the House has again impeached President Trump, it will, at a time to be determined, notify the Senate of its action. The Senate will then once again need to dust off its separate set of rules governing impeachments, though they may not have acquired much dust since the last time. The Senate, after receiving such notification, will then adopt an order informing the House that it is ready to receive the House managers. The House managers will cross the Capitol and appear before 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 impeachment 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…”

These rules also require the Senate to reconvene the trial each day, excepting Sunday, at noon to resume the trial unless otherwise ordered.

This time, since they will not be impeaching a sitting President, the Chief Justice will not preside over the trial. The job of presiding over the Senate is the Vice President’s responsibility, but it is usually delegated to either the most senior member of the majority, the President Pro Tempore, who will be Senator Patrick Leahy (D-VT) or to other members of the majority party who preside for an hour at a time. Once a day is agreed upon to begin the trial, I’d assume the Vice President will preside and have the oath administered to her whereupon she will administer it to the senators. Whether or not she’ll continue to preside each day will depend on her schedule.

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.

Next will be to pass the organizing resolution, establishing the times for presentations and questions and whether or not there will be witnesses. During the previous impeachment, the establishing resolution was S. Res. 483, offered by Senator McConnell. Senator Schumer offered 11 amendments to it, attempting to call witnesses and providing for the submission of evidence but each one was tabled by Senator McConnell.

It will be interesting to see if the roles are reversed and Senator McConnell demands to call witnesses.

Eventually, the Senate will pass another resolution setting forth the parameters for closing arguments, time for possible closed deliberation which is the only time senators are able to speak and establishing the time for the final vote.

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. The rules provide that all preliminary or interlocutory questions and all motions shall be argued for up to one hour on each side. The presiding officer shall rule on matters relating to the trial, but that ruling is subject to appeal and can be reversed by a majority vote of the Senate. An attempt to overrule the Chair will fail on a tie vote.

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.

The Senate began deliberations on President Trump’s first impeachment trial on January 16, 2020. The final votes on impeachment occurred on February 5, 2020.

Prior to voting on the articles in the impeachment of President Clinton, the Senate met in closed session for three days before voting on February 12, 1999. There was no such closed session prior to the votes in President Trump’s first trial.

McConnell’s organizing resolution for Trump’s first trial provided for 24 hours for each side to present their cases spanning two days each. Senators were provided up to 16 hours to question the two sides.

Senator Schumer, and his slim Democratic majority, will decide the parameters of this new impeachment trial and amendments attempting to change them will be debated by the House managers and the President’s lawyers, each allotted one hour for debate.

Meanwhile, the Senate can attempt to confirm President Biden’s cabinet nominees early each day or late each night. Such attempts will require some cooperation from the Republicans, but for national security and continuity of government reasons they may be willing to allow some confirmations to proceed.

Senate Impeachment Rule XIII envisions such a two-track possibility. It states:

“The adjournment of the Senate sitting in said trial shall not operate as an adjournment of the Senate; but on such adjournment the Senate shall resume the consideration of its legislative and executive business.”

While removal from office is the usual reason for an impeachment trial, if the Senate convicts former President Trump by a two thirds vote, then by majority vote it can under Article 1, Section 3 of the Constitution bar him from holding “any Office of honor, Trust or Profit under the United States;…”

Regardless of the outcome former President Trump will go down in history as the only President to have been impeached twice.