A funny thing happened as the House’s two articles of impeachment were headed to the Senate for a speedy Trump acquittal. Senate Majority Leader Mitch McConnell announced that he had no intention of respecting his oath to serve as an impartial juror and would work in lockstep with the White House to acquit Trump with as little process as possible. Senate Judiciary Committee Chairman Lindsey Graham piled on, adding that he wouldn’t even pretend to be impartial.
These unexpectedly candid comments allowed House Speaker Nancy Pelosi to hold off sending the articles to the Senate. They also gave Senate Minority Leader Charles Schumer leverage for his demand that McConnell allow Senate testimony from crucial administration witnesses. Democrats claimed they wanted a fair process that would produce the truth, while Republicans – afraid that new evidence would further incriminate Trump – held firm.
Until McConnell’s confession, the House majority seemed resigned to wrap up its compelling, but truncated, impeachment inquiry and send its two articles to the Senate with no realistic expectation that they would receive more than a summary disposition in the Senate. In its eagerness to clear the decks before presidential primary voting started, the majority eschewed court enforcement of witness subpoenas. It rejected a lengthier inquiry that would develop even more damaging facts, including further outbursts from an increasingly agitated president.
McConnell’s and Graham’s statements, however, opened the door for Democrats to use the holiday recess to generate constituent pressure on vulnerable and concerned Republicans to support summoning witnesses and documents in the Senate trial. That result now appears more likely.
What to Expect from the Trial
The trial will be conducted within the framework established by the Constitution and the rules of the Senate. The Constitution says little about the procedural aspects of the trial itself. It states that the Senate has the power to try all impeachments and that when the President is on trial, the Chief Justice must preside. Conviction requires the votes of two-thirds of Senators present (they’ll all show up) and conviction can result only in removal from office and disqualification from future federal service.
Although Chief Justice Roberts will preside, his authority is limited by the rules of the Senate. Any ruling that he makes – including on such things as the course of the proceedings, the calling of witnesses, the admissibility of evidence, and the assertion of privileges — can be overruled by a majority of Senators. Roberts can avoid being overturned by referring matters to the full Senate in the first instance.
Senators will be required to swear that they will “do impartial justice according to the Constitution and laws.” Senators are not simply jurors. Rather they serve as jurors and judges. They perform the juror’s function of hearing and evaluating the evidence, but they also get to vote on what evidence will be heard and how the trial will be conducted.
The Senate rules impose some peculiarly detailed requirements. They state that the proceedings will begin at 1:00 pm the day after the House managers present the articles of impeachment to the Senate and will continue every day except Sundays until the trial is completed. While the trial is underway, Senators must remain in their seats and may not speak (!). They may ask questions only by submitting them in writing to the Chief Justice, who then poses them to witnesses. The proceedings must be open except during final deliberations.
The House managers present the articles of impeachment. The managers have not yet been named, but will be drawn primarily from the House Judiciary and Intelligence Committees. The House appointed thirteen managers for the Clinton impeachment. Trump will be represented by some combination of personal lawyers and lawyers from the White House Counsel’s office.
The rules authorize the Senate to subpoena witnesses and summarily enforce subpoenas without resort to judicial process.
Resolving Disputes During the Trial
McConnell can end the trial without the introduction of new evidence if a majority of Senators agree. He can also end the trial at any time if he can muster the support of 51 senators for a motion to adjourn the trial sine die, which is the equivalent of a motion to dismiss.
The challenge for Democrats in defeating this motion and contesting any other ruling during the trial will be to hold on to their entire caucus and flip either three or four Republicans. While Democrats could lose votes on the final vote to convict (Sens. Doug Jones and Joe Manchin seem the most likely), they are unlikely to lose any votes on procedural matters, which will be viewed as efforts to ensure a search for the truth, as Doug Jones recently wrote.
Whether three or four Republican votes will be needed will depend on the procedural posture of the vote. Since Vice President Pence will not preside and will be precluded from voting because of his obvious conflict of interest in deciding whether or not he should become president, Republicans (who control 53 seats) will need 51 senators to pass a motion or to override a ruling of the Chief Justice. In those situations, Democrats will need to flip only three Republican senators to block action. Likewise, however, Democrats (who control 47 seats) will need 51 senators to pass anything, which will require flipping four Republican votes.
Whether the Chief Justice will cast tie-breaking votes is an open question. As presiding officer, he performs an exclusively judicial function and judges do not vote on juries. The Framers’ decision to lodge the impeachment trial power in the Senate and to keep it out of the Supreme Court (they rejected a proposal to try impeachments in the Supreme Court) weighs against the Chief Justice voting. On the other hand, when the Vice President presides, he votes to break ties. But, the Constitution explicitly authorizes him to do so. During the impeachment trial of Andrew Johnson, however, Chief Justice Salmon Chase cast two tie-breaking votes on procedural matters.
The decision whether to vote will be John Roberts’ to make, unless the Senate adopts a resolution prohibiting him from voting. Roberts will be aware of the impact of a tie-breaking vote — with potentially enormous political consequences — on the legitimacy of the Court. His annual year-end report touted the importance of an independent judiciary and emphasized his concern that we too readily “take democracy for granted.” He will not want to be a decisive player in this political drama.
Recent reporting confirms the need for the Senate to hear the testimony of former National Security Advisor John Bolton and administration officials whom Trump prevented from testifying in the House, including Acting Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo, Secretary of Defense Mark Esper, OMB official Michael Duffy, and Mulvaney aide Robert Blair. All were either involved in discussions with Trump about the Ukraine security assistance or played a role in freezing the money. The administration is also withholding a large volume of written communications.
Republican Senators play a dangerous game if they suppress this evidence and conduct a sham trial. The evidence will emerge eventually to their great embarrassment. They should produce it for the public and confront it now.
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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.