Senate Leaders Don't Make The Rules

After several weeks of uncertainty surrounding President Trump’s impeachment, the Senate is ready to proceed. This week, Majority Leader Mitch McConnell, R-Ky., and Minority Leader Chuck Schumer, D-NY, announced some of the rules and guidelines that will govern the Senate chamber during the trial. Reports suggest that these rules are new and that they have been imposed on senators by the two leaders. John Cornyn, R-Tex., noted that he hoped McConnell “would agree to let them work only five days a week.”

But the McConnell-Schumer rules/guidelines are not new. And they were not imposed on senators against their will. They were adopted by unanimous consent pursuant to the Senate’s Impeachment Rules.

“Unanimous” Means Everyone

Senators adopted the first orders relating to the impeachment trial as part of a series of unanimous consent requests that McConnell propounded on the Senate floor. The majority leader begins this housekeeping sequence by asking unanimous consent that the Senate inform the House that it is ready to receive the managers appointed by the House to “present and exhibit” the articles of impeachment.

“Mr. President, I ask unanimous consent that pursuant to rule I of the Rules of Procedure and Practice When Sitting on Impeachment Trials, the Secretary of the Senate inform the House of Representatives that the Senate is ready to receive the managers appointed by the House for the purpose of exhibiting Articles of Impeachment against Donald John Trump, President of the United States, agreeably to the notice communicated to the Senate; further,  that at the hour of 12 noon on Thursday, January 16, 2020, the Senate will receive the managers on the part of the House of Representatives in order that they may present and exhibit the Articles of Impeachment against Donald John Trump, President of the United States.”

Note that McConnell acknowledges he is acting “pursuant to Rule I of the Rules of Procedure and Practice When Sitting on Impeachment Trials.”

McConnell next cites the Impeachment Rules when he asks unanimous consent that the Senate proceed to the consideration of the articles of impeachment at 2 p.m. on January 16.

“Mr. President, I ask unanimous consent that pursuant to rules III and IV of the Rules of Procedure and Practice When Sitting on Impeachment Trials, that at the hour of 2 p.m. on Thursday, January 16, 2020, the Senate proceed to the consideration of the Articles of Impeachment and that the Presiding Officer, through the Secretary of the Senate, notify the Chief Justice of the United  States of the time and place fixed for consideration of the articles and request his attendance as Presiding Officer pursuant to Article I, section 3, clause 6, of the U.S. Constitution. ”

McConnell then asks unanimous consent that the Presiding Officer be authorized to appoint a committee of senators to escort the Chief Justice to the Senate chamber and that the Secretary of the Senate notify the House when the Senate is ready to begin the trial. 

“Mr. President, I ask unanimous consent that the Presiding Officer be authorized to appoint a committee of Senators, two upon the recommendation of the majority leader, and two upon the recommendation of the Democratic leader, to escort the Chief Justice into the Senate Chamber. I further ask consent that the Secretary of the Senate be directed to notify the House of Representatives of the time and place fixed for the Senate to proceed upon the impeachment of Donald John Trump in the Senate Chamber.”

McConnell ends the housekeeping sequence by introducing a resolution containing additional regulations to govern the Senate chamber during the impeachment trial and asking his colleagues to approve it by unanimous consent.

“Mr. President, I ask unanimous consent that access to the Senate wing, the Senate floor, and the Senate Chamber Galleries during all of the proceedings involving the exhibition of consideration of the Articles of Impeachment against Donald John Trump, President of the United States, and at all times that the Senate is sitting for trial with the Chief Justice of the United States presiding, be in accordance with the allocations and provisions I now send to the desk, and I ask that it be printed in the RECORD.”

The text of the resolution can be found here.

The Takeaway

The majority leader does not have the power to create new rules without the approval of senators.