The Senate Already Has Rules For Impeachment Trials

If the House votes to impeach President Donald Trump next week, Senate Majority Leader Mitch McConnell, R-Ky., predicted that he and his colleagues would wait until after the holidays to begin a trial. According to reports, McConnell and his counterpart, Minority Leader Chuck Schumer, D-NY, have not yet reached an agreement on the “ground rules” that will govern the impeachment trial. When asked about the ongoing discussions between McConnell and Schumer, Lindsey Graham, R-SC, observed

“I think it’s in everybody’s interest to have an orderly process in the Senate if it gets here, to have a process that is controllable, that doesn’t get off the rails, that’s respectful of the event, that has adequate time to consider things but an ending point.”

Should the impasse persist, some have speculated that Republicans would have to choose between passing a rules-package on a party-line vote or “a free-for-all on the Senate floor” over what procedures will govern the third presidential impeachment trial in the nation’s history. McConnell has described such a scenario as “jump ball” and warns that it could be chaotic and divisive.

Yet McConnell’s foreboding prediction leaves unstated the fact that the Senate already has written rules, as well as a substantial collection of precedents, to govern impeachment trials.

Existing Rules and Practices

There are 26 rules of procedure that govern the Senate's proceedings when it is sitting on an impeachment trial. Senators crafted the rules to facilitate trials fairly and expeditiously. The Senate’s Impeachment Rules were last revised in 1986.

In 1986, senators also approved a resolution (S. Res. 439), authorizing a revised edition of "Procedure and Guidelines for Impeachment Trials in the United States Senate." Compiled by the former parliamentarian, Floyd M. Riddick, the report cites the constitutional authorities relating to impeachment, details the Senate’s impeachment rules, and describes the general sequence of events at the beginning and end of impeachment trials. The report also includes a curated collection of historical precedents relating to impeachment detailing how senators decided to proceed in situations where the rules were silent (or otherwise ambiguous).

Riddick sums up his findings near the beginning of the report. “The Senate sitting as a court of impeachment has established its rules, practices, and precedents, various definite procedures for the conduct of an actual impeachment trial” (italics added for emphasis).

Supplementary Rules and the Clinton Trial

The Senate adopted supplementary rules during President Bill Clinton’s impeachment trial in 1999.

On January 8, 1999, at the beginning of the trial, senators approved a resolution (S. Res. 16) that, among its provisions, specified the dates on which the president must respond to the impeachment summons and the House was required to file its replication along with the full impeachment record compiled by the House Judiciary Committee. S. Res. 16 also set deadlines “to file any motions permitted under the rules of impeachment…" and added to the established impeachment procedures a 16-hour block of time for senators to question the parties after the president's presentation (italics added for emphasis).

S. Res. 16 also established additional rules relating to witnesses. Specifically, it stipulated,

“ If the Senate agrees to allow either the House of Representatives or the President to call witnesses, the witnesses shall first be deposed, and the Senate shall decide after deposition which witnesses shall testify, pursuant to the impeachment rules.”

On January 28, 1999, the Senate passed a resolution (S. Res. 30) that authorized more supplementary rules. These included rules authorizing the issuance of subpoenas to take depositions from specified witnesses, stipulated that the majority and minority leaders would determine the deposition time for all witnesses and empowered the House managers and the president's counsel to make a motion to resolve any objections made during the depositions after a short review period. S. Res. 30 also set aside a 24-hour block of time for the president's counsel to make motions concerning testimony or evidence.

Both resolutions reference the Senate’s underlying impeachment rules and practices. The four-page S. Res. 16 references the Senate’s impeachment rules four times. The seven-page S. Res. 30 references the impeachment rules eight times.

In an October 7, 1998 memorandum prepared by the Office of Senate Legal Counsel prior to the Clinton impeachment trial, officials concisely acknowledged all of this, observing, “The Senate has created rules to guide the conduct of an impeachment trial.”

Chaos Is Unlikely

The fact that the Senate already has 26 rules and a substantial body of precedents to govern its proceedings when sitting as a court of impeachment suggests that the speculation regarding the importance, if not necessity, of the McConnell-Schumer talks, is greatly exaggerated.

(Legislative Procedure will be reviewing the Senate’s Impeachment Rules in greater detail in the coming days.)