Your Guide To What Happens Next With Impeachment

(Editor’s Note: This piece first appeared in The Federalist on December 20, 2019.)

Now that the House of Representatives has voted to impeach President Trump, action shifts to the Senate, whose members are charged by the Constitution to determine whether he should be convicted or acquitted. Yet wary Democrats are slow-walking the process in a bid to secure procedural guarantees from Senate Republicans on how the trial will unfold.

The House must first appoint members who will manage its case during the trial. When that happens, the House can notify the Senate of its decision to impeach the president and appoint managers.

According to Speaker Nancy Pelosi, D-Calif., the House will refrain from appointing managers until Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-N.Y., agree on the ground rules that will govern the trial. At issue are whether the Senate will call additional witnesses and how long the trial will last.

Schumer wants the Senate to call particular witnesses (namely those who refused to testify during the House’s impeachment inquiry). But McConnell doesn’t think witnesses are needed and wants the trial wrapped up quickly.

Notwithstanding the McConnell-Schumer impasse, the House’s decision to appoint managers and notify the Senate is a major development. It formally begins the impeachment process under the Senate’s existing rules and practices. The Senate’s “Rules of Procedure When Sitting On Impeachment Trials” (i.e., the Impeachment Rules) stipulate clearly that senators must consider articles of impeachment once they arrive from the House. In short, the Senate must hold a trial; senators must act.

Organizing for Trial

According to Rule II of the Impeachment Rules, proceedings begin as soon as the House managers arrive at “the bar of the Senate” to exhibit their articles of impeachment against President Trump. After the presentation of the articles, the rules stipulate that the presiding officer informs the House managers that the Senate will notify the House when it has organized for trial. The House managers then leave the Senate.

After the withdrawal of the House managers, the impeachment rules require it to organize for the trial. The first order of business under Rule III is the need to administer oaths to senators and their presiding officer.

The Constitution (Article I, section 3, clause 6) requires the chief justice of the United States to preside in a presidential impeachment trial such as this one. In that case, Rule IV details the procedures that senators follow to administer the oaths. Specifically, the presiding officer first administers the oath mentioned above to the chief justice. The chief justice then administers the oath to senators, en bloc.

After the administration of oaths, the impeachment rules stipulate that the chief justice instructs the sergeant at arms to announce the beginning of the trial. Rule III requires the Senate to remain in session “from day to day…after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered” (Sundays excepted).

“Unless otherwise ordered by the Senate” underscores the fact that senators can adopt a different trial schedule by passing a resolution to that effect. Senators may also suspend the impeachment trial by unanimous consent to consider legislative and executive business.

The Trial

Under Rule VIII, senators must issue a writ of summons setting the date on which the president must respond to the accusations against him.  (The Senate also sets the date on which the House managers respond to the president’s response.) Rule XXV even prescribes the text of the summons.

Under the Senate’s regular rules (i.e., its “Standing Rules”), senators could filibuster the writ of summons. But under its impeachment rules, such dilatory tactics are prohibited to ensure that the trial is not delayed and that a verdict is reached. Rule XXIV stipulates that “all the orders and decisions may be acted upon without objection” during the trial. If senators object, “the orders and decisions shall be voted on without debate by yeas and nays….subject to the operation of Rule VII.”

Rule VII requires the presiding officer to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment.” In that capacity, senators expect the presiding officer to rule on questions of evidence (i.e., issues of relevancy, materiality, redundancy) and any “incidental questions” that may arise during the trial.

The presiding officer may rule when presented with such questions, or he may submit them directly to the Senate to be decided. If the presiding officer does rule on a question raised during the trial, any senator may appeal it and ask for a “formal vote.”

Regardless of how questions are decided, the impeachment rules prohibit debate. That means the Senate votes immediately whenever questions arise during a trial, and the side with more votes (i.e., a simple majority) wins.

While the Senate’s impeachment rules permit limited debate during closed sessions, senators are allowed only one speech each in such circumstances under the provisions of Rule XXIV. The rule also caps speeches on “interlocutory questions” at ten minutes.

Supplementary Rules

The Senate may adopt supplementary rules to structure impeachment proceedings. During the 1999 Bill Clinton impeachment trial, senators approved two supplementary rules packages (S. Res. 16 and S. Res. 30). S. Res. 16 set the dates by which the president was required to respond to the articles of impeachment and by which the House managers were required to respond to the president’s response. It also set aside a 16-hour block of time for senators to question the parties.

Res. 30 authorized the deposition of particular witnesses and delegated to the majority and minority leaders the power to determine the deposition time for all witnesses. The resolution also empowered House managers and the president’s counsel to make a motion to resolve any objections made during the depositions after a short review period.

Democrats and Republicans alike cite the Clinton procedures as a model for what the Senate should do today. Schumer references them in a letter he sent McConnell outlining his proposal on how the trial should proceed.

McConnell appears to agree with Schumer when it comes to the benefits of the structured approach adopted by the Senate in 1999, stating that “the basic procedural framework of the Clinton impeachment trial served the Senate and the nation well, in my view…I still believe the Senate should try to follow the 1999 model.”

This agreement between McConnell and Schumer on the basic need for supplementary rules suggests that a package is likely to be approved when the Senate reconvenes after the holidays, with or without naming particular witnesses. In the unlikely event that the McConnell-Schumer talks break down, the fact that the Senate has 26 rules and a substantial body of precedents to govern its proceedings when sitting as a court of impeachment suggests that it will be able to conduct the trial.