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Copyright 2020 Dan Cofran

The Senate’s “Rules of Procedure and Practice When Sitting on Impeachment Trials” apply to trials in the Senate of all federal officers – presidents, vice-presidents, federal judges and cabinet members.

The proceeding is unique, perhaps best described as a hybrid trial and legislative proceeding.  It’s also riddled with uncertainty.

Many of the impeachment trial rules address scheduling and minor procedures, e.g., who does what, when and at what time of day; required language for subpoenas, etc. While very detailed, they invite unpredictability as written.

First, there are many exceptions to the rules effective upon a simple majority Senate vote, so the rules themselves function as default positions, subject to change by a quick vote. This was probably purposeful. The Framers’ writings indicate they wanted a flexible procedure, not “tied down by strict rules . . . that limit the discretion of courts,” according to Alexander Hamilton.

Second, they frequently lack enforcement measures when not followed. For example, if a Senator violates his or her oath of “impartiality,” there is no remedy. “What are you going to do, withhold my grades?” The only remedy is for that Senator be voted out of office.

Third, they mesh with the sometimes arcane “Standing Rules of the Senate” that always govern procedures for voting, what motions prevail over others, what motions are subject to debate, points of order, personal privilege and like esoterica that apply to all Senate proceedings.

Fourth, we have little precedent to guide us. There have been 15 impeachment trials in the Senate. Only two were presidential impeachment trials . . . Andrew Johnson’s in 1868 and Bill Clinton’s in 1999 (Richard Nixon resigned before the House voted out articles of impeachment). There have been 13 federal judge and one cabinet member impeachment trials. Altogether, the Senate has convicted eight of 15 officials impeached by the House.

The Constitution

The Constitution is the analysis’ starting point. It provides only very basic requirements for impeachment trials. Art. I, Sec. 3, cl. 6 and 7, provide:

“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be Oath or Affirmation.   When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the members present.

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust of Profit under the United States; but the Party convicted shall nevertheless be liable and subjected to Indictment, Trial, Judgment and Punishment, according to Law.”

The Constitution further gives the House and the Senate each the power to “determine the Rules of its Proceedings.” Art. I, Sec. 5, cl. 2. The Senate impeachment trial rules originally were written in 1784 by Thomas Jefferson as Vice President for the very first Senate impeachment trial – federal Judge William Blount accused of “drunkenness and unlawful rulings.”

The rules have been amended only two times, in 1868 (for the Andrew Johnson trial) and in 1936. They treat the Constitutional requirements as minimums. The Supreme Court will not second-guess the more detailed Senate rules, based on separation of powers principles. The Constitution vests the Senate with the power to make its own rules. Nixon [Walter] v. United States (1993).

The Senate Impeachment Trial Rules

This much we know. Caveat civis! Treat this as a guide, not a predictor.

Starting Gun. The Senate process begins when the House formally notifies the Senate that it has appointed its “impeachment managers.” They are House members who function like prosecutors for the Senate trial. The House managers then appear before the Senate and physically deliver the articles impeachment.

Mandatory Trial. There appears to be agreement that there must be a trial, unlike a past Senate Majority Leader determination that the Senate was not required to hold a Supreme Court Justice nomination hearing.

The rule states that upon presentation of the articles of impeachment, the Senate “shall . . . proceed to a consideration of the articles . . . and shall continue in session from day to day . . . after the trial shall commence . . . until final judgment shall be rendered.” Under the law, “shall” actions are mandatory; only “may” actions are optional.

However, the rules are silent regarding the duration of the trial and skimpy on what explicitly is mandatory for a trial, e.g., witnesses and motions to dismiss. Accordingly, the Senate Majority Leader and Minority Leader in the past have worked out a trial plans submitted to the Senate for approval spelling out what witnesses can be called, what exhibits to use, time limits on debate and other procedural matters.

For example, an agreed to trial plan was used in the Clinton impeachment.

• Each sides’ counsel had 12 hours each to present their cases, confined to the House record (it was a full record; no witnesses refused to appear before the House).
• Senators then had up to 16 hours to question both sides’ counsel.
• The Senate then debated whether to dismiss or subpoena additional witnesses not in the House record.
• A motion to dismiss failed and three new witnesses were subpoenaed and deposed for additional evidence.
• The Senate deliberated and voted.

Oath. Under the Constitution, Senators must take an oath when sitting in trial, but it does not specify the oath. Instead, the Senate’s rules provide the form of oath, as follows:

“I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of [official’s name and office], now pending, I will do impartial justice according to the Constitution and laws, so help me God.”

However, neither the Constitution nor the Senate rules provide an enforcement mechanism in the event a Senator is not “impartial.” For example, during the 1868 Andrew Johnson impeachment trial, an allegedly conflicted Senator was asked to recuse. He declined claiming a “constitutional right” to sit and vote. The matter was debated and in the end the Senator was permitted to sit and vote.

During the 1804 impeachment trial of Judge John Pickering, a resolution was introduced to bar three Senators who had had voted on the articles of impeachment when they previously were members of the House. The resolution was not adopted (simple majority vote) and the three Senators participated.

However, Senators have voluntarily recused themselves on thirty occasions, all federal judge impeachment trials.

Accordingly, if push comes to shove, a motion to force recusal for lack of impartiality likely will fail because neither the Constitution nor the Senate rules provide for such a motion. Even if permitted, the result would be uncertain, depending on party-voting or facts specific to a Senator’s situation. Voluntary recusal is the only certain route, other than voting the Senator out of office at his or her next election.

Supreme Court Chief Justice. The Constitution provides that the Chief Justice in the case of a presidential impeachment trial simply “presides,” the same as the Vice President otherwise would in Senate proceedings.

He or she does not function as a “judge” would in a court trial calling “balls and strikes.” The Senate rules make this clear. The rules refer to the Chief Justice not as a “judge,” but as the “presiding officer on the trial.”

While the rules state he or she “may rule on all questions of evidence, including but not limited to questions of relevancy, materiality and redundancy of evidence,” his or her ruling is subject to an override by a simple majority vote (but with no debate) of the Senate. The rules do not require strict rules of evidence.

The rules allow him or her simply to refer an objection to the Senate for a majority vote (Chief Justice Rehnquist did this frequently in the Bill Clinton impeachment trial; Chief Justice Salmon Chase tried to be more assertive with his rulings in the 1868 Andrew Johnson impeachment trial but was overruled by a Senate majority at least twice).

Senators’ Dual Roles. Senators in an impeachment trial are both jury and judge. For the most part they are passive, simply listening to each side’s presentations of evidence, including witness examination and cross-examination, like a court trial jury. They are permitted, however, to submit written questions to the Chief Justice as the presiding officer for his or her asking witnesses. However, no Senator “may engage in colloquy.”

Senators also act collectively as a judge, ruling by majority vote on the admissibility of evidence, whether by challenging a ruling of the Chief Justice sitting as the presiding officer or making a ruling if referred to them by the Chief Justice.

Opening Statements. The rules provide for opening statements by the one House manager followed by one defense counsel, for one hour each.

Motions and Objections. The parties are directed, apparently after opening statements, to present desired “motions, objections, requests or applications” relating to Senate procedures or the trial itself, “including questions with respect to the admission of evidence or other questions arising during the trial.” These are all directed to the Chief Justice as the presiding officer. This apparently includes which witnesses will be called. Oral argument on all motions and objections is limited to one hour for each side. A Senator is permitted to speak only once on one question, for no more than ten minutes, within the one hour period.

Motion to Dismiss. The Senate rules themselves do not provide for a motion to dismiss without hearing evidence. Because all Senate rules require a 2/3s majority to be amended, a motion or resolution to amend the impeachment trial rules to allow motions to dismiss would require 67 votes, a daunting objective. However, in the Bill Clinton trial, the Senate unanimously approved a trial plan by resolution, limited to that proceeding, permitting a motion to dismiss after the case presentations.

In addition, the Senate Standing Rules also apply and may be used to achieve the same result by other means. Under the these rules, the Senate can pass a motion to adjourn to a specific date or sine die, meaning without a specified date to reconvene. Motions to adjourn require a simple majority. As a practical matter, adjournment sine die works like tabling the matter forever and ends the process. Some scholars cite adjournment sine die as substitute for a motion to dismiss.

The rules for impeachment trials also refer to motions to adjourn to a specific day or sine die, but only when the Senate is deliberating and voting on its verdict. This likely is not the exclusive provision for adjournment, so earlier motions to adjourn under the Standing Rules are probably permitted.

Witnesses. The Constitution is silent about witnesses. At best, the Constitution and rules contemplate witnesses, including direct and cross examination. Witnesses testified in the only two presidential impeachment trials in the nation’s history – 17 witnesses in the Andrew Johnson impeachment trial and three in the Bill Clinton trial. So far, witnesses have testified in every Senate impeachment trial.

The Senate rules refer many times to witnesses (including a Senator being called as a witness), together with including compelling attendance by subpoena and contempt for failure to appear. So it’s fair to say the rules contemplate that Senate will try the case, not punt the case.

The rules limit what witnesses can be called. “The Senate [not a party or side] shall have power to compel the attendance of witnesses.” Therefore, it takes a simple majority vote of the full Senate to subpoena a witness, giving the majority party control of matter, unless enough majority Senators will join minority Senators for calling a specified witness.

The current Senate has 45 Democrats, two independents who usually vote with the Democrats and 53 Republicans. If four Republicans would join the Democrats and the independents, their combined 51 votes could get the witness subpoenaed.

If only three Republicans joined the Democrats and Independents, the vote would be a 50-50 tie. Normally, in the event of a tie, the Vice President under the Constitution votes. But in a presidential impeachment trial, while the Chief Justice is the presiding officer, the Constitution specifically names “the Vice President” as the tie-breaker, not the “presiding officer,” so the Chief Justice probably could not cast the deciding vote.  Without the Chief Justice voting in the event of a tie, a motion for subpoenaing a specified witness, or any other motion, would fail for not achieving a simple majority vote of 51.

But that doesn’t end the matter. If the witness in the preceding example is subpoenaed and appears, there likely will be objections to specific questions. For example, if a top White House advisor was asked about his or her witnessing the solicitation of a bribe, it might be met by an executive privilege objection.

Executive privilege does not apply to “governmental misconduct,” at least in court trials. If the Chief Justice as the presiding officer properly overruled the objection for this reason, the ruling immediately could be appealed and overruled with a simple majority vote by the Senate. The Democrats, Independents and few Republicans would have to hang together for repeated objections.

In addition, the Senate rules were amended in 1936 to allow the appointment of a trial committee of Senators to hear witness testimony, examine documents and submit a written transcript and report to the full Senate.

Final Argument. Two persons for each side may make final argument, but the House managers get to open and close under the rules.

Standard of Proof. To convict a president of “Treason, Bribery or other High Crimes and Misdemeanors,” what is the standard of proof? Is it beyond a reasonable doubt, clear and convincing evidence or a preponderance of the evidence? There is no standard. Each Senator is free to decide for himself or herself what quantum of proof is sufficient.

The Senate considered adopting of a burden of proof standard in the 1980s, but declined to do so because it lacked a means of enforcement, just like the oath of impartiality.

Deliberation and Voting. The trial must be open to the public, but deliberation and the vote on conviction vs. acquittal is closed. Each Senator may speak only once, not to exceed 20 minutes, applicable all articles, not 20 minutes each. “Each Senator must stand at his or her desk and announce his or her vote.” The articles, e.g., abuse of powers, obstruction of Congress, are voted on separately and consecutively without a break. The rules do not provide for secret ballot. This would require a 2/3’s majority rules amendment.

Conviction. Conviction requires the vote a 2/3s of the Senators present (not the total membership) as provided in the Constitution. The rules prohibit motions to reconsider convictions as well as acquittals. It’s “one and done” on each article.

Punishment. If convicted on any one article of impeachment, the official is immediately removed from office. A separate motion to bar the official from ever holding office is optional and is done by a separate, simple majority vote, not by rule but by past practice. The Senate has done this only three times in our history.

In addition, as provided in the Constitution, the individual remains subject indictment and prosecution in the criminal courts, whether acquitted or convicted on impeachment. Trial by impeachment does not operate as double jeopardy.

Amending the Rules and the “Nuclear Option.” Many of the specific impeachment trial rules permit exceptions by a simple majority vote. If not, a 2/3s majority vote is required to amend a rule.

Under what is known as the “nuclear option,” a simple majority vote can amend a rule. A Missouri Senator is leading an effort to do this to allow Senate dismissal of article of impeachment if not delivered by the House to the Senate within 25 days. The “nuclear option” is a shameless fiction (IMHO) and works like as follows:

The presiding officer of the Senate rules on “points of order.” The presiding officer’s rulings on points of order are subject to an appeal and reversal by a simple majority vote. When invoking the “nuclear option, a Senator moves that a particular rule, e.g., no motions to dismiss, be amended to allow motions to dismiss without evidence, be amended “by a simple majority vote.”

The presiding officer will properly overrule the motion because a 2/3s majority is required to amend a Senate rule. The movant then challenges the correct ruling of the presiding officer as a “point of order” and the matter is put to a vote of the floor which under Senate rules requires an immediate vote, without debate.

Because of the immediate nature of the vote, Senators are barred from invoking the rule of “cloture” which otherwise would require a 2/3s vote. If a simple majority votes in favor of the appeal, the motion to amend the impeachment trial rule will proceed for a simple majority vote, or other numeric majority the movant has specified in his or her motion.

The artifice cannot be challenged in court. Because the Constitution gives the Senate the power “determine the Rules of its Proceedings” and the “sole Power to try Impeachments,” the courts will not intervene as a matter of the separation of powers under the Constitution.

If this Senate artifice makes your head hurt, it should. If it makes you are angry, you should be.

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© 2020 – 2021, Dan Cofran. All rights reserved.