Senate Majority Leader Mitch McConnell speaks to reporters on Capitol Hill in Washington, D.C., in December, 2019. (Photo: Andrew Harnik/AP)
For the third time in American history, the House has impeached the president. Soon, it’ll be up to the Senate to decide President Donald Trump’s fate.
While the Constitution requires that a two-thirds majority — 67 senators — must vote “guilty” to remove him from office, it doesn’t elaborate how the Senate trial is actually supposed to work: from what the standard of proof is to what rules of evidence apply.
The wonky Senate impeachment rules aren’t so illuminating, either. Though they specify what certain oaths must say and when certain events must happen, they leave the substantive questions largely unanswered. In short, it all really comes down to who has 51 votes.
Both the Constitution and the Senate impeachment rules presume that a trial will occur. The Senate can’t dilly dally, either. The Senate rules say that as soon as the House appoints impeachment managers, effectively special prosecutors, the Senate must receive them “immediately” to make their case. Trump will, in turn, receive a summons to appear and the White House will appoint its own lawyers.
But just because a trial is necessary doesn’t mean it needs to be a full-blown affair with witnesses, subpoenas and the like. With just 51 votes, the Senate could pass a motion to adjourn “sine die” at any time, ending the show before it starts.
House Speaker Nancy Pelosi is well aware of this possibility and has indicated that she’d hold off sending the articles to the Senate until she believes they’ll establish procedures to ensure a fair hearing.
The role of Chief Justice John Roberts
Where the president is impeached, the Constitution requires that the chief justice of the Supreme Court preside. After administering a special oath to do “impartial justice” to the senators, he’s tasked with directing “all the forms of proceedings.” Contrary to common parlance, he isn’t actually the judge. However, he can rule on any evidentiary or incidental questions that arise.
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Should the chief justice decide that he wants to rule on a particular question, his ruling would stand as the judgment of the Senate unless a senator sought a vote on the question — in which case the question would be submitted to the Senate for a vote. The Senate could, in short, overrule him. Should the chief justice not want to rule on an evidentiary question — perhaps because it’s too political in nature — he could also submit it to a vote right away.
Chief Justice John Roberts (Photo: Rogelio V. Solis/AP)
During President Andrew Johnson’s trial, Chief Justice Salmon Chase frequently ruled on motions and broke ties. Chief Justice William Rehnquist, by contrast, took a more laissez-faire approach, reportedly playing cards during the Senate breaks of President Bill Clinton’s trial. Whether Chief Justice John Roberts will actively rule on motions is anyone’s guess, but he’ll shape the tenor of the trial either way.
Senators have rule-setting powers
For its part, the Senate acts as both judge and trier of fact. It has the power to “compel the attendance of witnesses” and “enforce obedience to its orders.” The only hiccup is that you need 51 votes to agree on who those witnesses are and what they’re supposed to talk about.
This is already proving to be a sticking point between Senate Democratic leader Chuck Schumer — who wants to call four current and former Trump staffers who stiffed House investigators — and Majority Leader Mitch McConnell, who apparently wants a speedy trial with no surprises.
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Whether Schumer will have his way and force former national security adviser John Bolton and acting White House chief of staff Mick Mulvaney to testify, thereby expanding the House record, will depend on whether he can find four Republican votes to support him — potentially three if Roberts were to hypothetically break a tie in his favor.
Noticeably absent from the rules is any discussion of standard of proof — i.e., how certain does the Senate need to be that Trump’s motive for withholding military aid to Ukraine was an electoral advantage — or rules of evidence. That said, there’s a body of Senate evidentiary precedent that could influence how Roberts rules.
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Activists gather at a rally to show support for the Congressional impeachment of President Donald Trump outside the Capitol in Washington, D.C., in December, 2019. (Photo: Jim Lo Scalzo/epa-EFE)
Should the chief justice decide a certain practice is sufficiently “precedential,” it would require a two-thirds majority, 67 votes, rather than 51, to change.
The role of precedent came up during the Clinton trial when Sen. Tom Harkin, D-Iowa, wanted to open the doors during deliberations. While the rules are actually ambiguous as to whether the doors must be open or closed, Rehnquist ruled that Senate precedent required the doors be closed, triggering a higher voting threshold to open them.
Recently, there has been talk about a secret ballot — a motion that would likely also require 67 votes.
Big unknowns in impeachment trial
Because the rules aren’t particularly prescriptive, a big unknown at this stage is whether Schumer and McConnell will agree on a set of comprehensive procedures for the trial. During the Clinton trial, Senate Majority Leader Trent Lott and Democratic leader Tom Daschle famously worked together to hatch a detailed resolution, which passed unanimously. It allocated the House managers and the president equal time to present, limiting both sides’ initial arguments to the House record.
Following their presentations, the Senate had up to 16 hours to question both sides, after which point the Senate could debate whether to dismiss or to subpoena witnesses and expand the House record.
Schumer has already called for equal time allocation and additional witnesses, perhaps taking cue from the Lott-Daschle plan. Getting Republican support seems unlikely — but then again, the magical number is 51.
Hilary Hurd is JD candidate at Harvard Law School, 2013 Marshall Scholar and frequent contributor to Lawfare. Follow her on Twitter: @Hilary_Hurd
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