Now that the U.S. House of Representatives has officially passed two articles of impeachment against President Trump, what is the Senate required to do next? House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Charles Schumer (D-NY) have been making waves by vaguely demanding certain promises and procedures from Senate Majority Leader Mitch McConnell. So, what are the rules for holding an impeachment trial?
The U.S. Constitution has precious little to say on the Senate’s impeachment role. Article I, Section 3 contains this:
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on 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 or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
To summarize: only the Senate can try impeachments, the Chief Justice of the United States presides over all presidential impeachments, a two-thirds vote of the senators present is necessary for conviction, and the result of a guilty verdict can go no further than removal from office and disqualification from holding any future office. It can be less, as it was in the case of Congressman Alcee Hastings (D-FL), who was impeached and removed as a federal judge, but not prohibited from holding a future federal office. Ironically, Hastings is a member of the House Rules Committee that set the rules for President Trump’s impeachment debate.
What about witnesses, and evidence, and motions? Are they handled like a normal civil or criminal trial would be?
This is where another constitutional provision kicks in. Article I, Section 5 contains this: “Each House (referring to both the House of Representatives and the Senate) may determine the rules of its proceedings…”
Does the Senate have published rules about handling impeachments? Yes it does. But you’ll only get so far by reading them. The Senate (like the House) works outside written rules sometimes. Here’s the full disclosure on Senate procedures from the Senate’s own website:
“The legislative process on the Senate floor is governed by a set of standing rules, a body of precedents created by rulings of presiding officers or by votes of the Senate, a variety of established and customary practices, and ad hoc arrangements the Senate makes to meet specific parliamentary and political circumstances. A knowledge of the Senate’s formal rules is not sufficient to understand Senate procedure, and Senate practices cannot be understood without knowing the rules to which the practices relate.”
What we witnessed from the last presidential impeachment trial (of President Bill Clinton) may guide what we might see in the current proceeding.
First, Chief Justice Roberts will be sworn in as the presiding officer over the impeachment proceeding–he will then proceed to swear in the House “managers” appointed to “prosecute” the case against Trump. The same will be done with the President’s legal team.
What we don’t know is whether there will be a set of rules agreed to by Republicans and Democrats that will apply only to this impeachment trial, like there was in the Clinton trial. Majority Leader McConnell and Minority Leader Schumer have met, but can’t agree to proceed using the unanimously agreed-upon bipartisan rules from the Clinton trial. The current rancor over the Trump impeachment process may preclude the two major political parties from agreeing on much of anything. It may be that Republicans, as the majority party, will craft the rules and then pass them by a majority vote, much like the House Democrats did for their impeachment hearings in the House Intelligence and Judiciary committees a few weeks ago. And that assumes that the Speaker of the House eventually transmits the impeachment resolution to the Senate, which is not a foregone conclusion.
The only thing we can be sure of is that the impeachment trial – if it even happens – will be a wild ride.
For more on the history of Senate impeachment trials, go here.
Photo from Architect of the Capitol