How Will the Senate Impeachment Trial Work? Your Questions Answered.

10 mins read
US Capitol Building
Scrumshus [Public domain], via Wikimedia Commons

Speaker of the House Nancy Pelosi is expected to have the House vote on a resolution today that will send the two articles of impeachment for Trump to the Senate. By rule, the Senate must start the trial immediately.

So, how does this all work? There haven’t been many impeachments in America, but we do have some information. Here’s what you need to know (with further reading at the end of the article if you want more.)

Do Senators take an oath?

Senators take an oath when they get sworn in at the start of every new Congress, but they have to take an additional oath prior to an impeachment trial. Think of it as the oath a juror must make before a trial begins.

”I solemnly swear that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”

What is the Chief Justice’s role?

The Constitution specifies that for an impeachment of a president, the Chief Justice will preside. This is because in all other cases, the Vice President presides over the Senate. But if a president gets impeached, the VP becomes president, and of course it is unseemly and unethical for the VP to vote in an impeachment trial where s/he would stand to benefit personally.

There has been a lot written about how Chief Justice John Roberts might “rule” over the impeachment trial and what kind of power he’ll hold to shape the trial. But it comes down to this: The trial is governed by the rules of the Senate. The Chief Justice’s role is to help resolve any conflicts of interest. Now because the Chief Justice is not an expert in the rules of the Senate, he will have the Senate’s parliamentarian, Elizabeth MacDonough, help him understand the arcane rules. She is considered by many to be the best parliamentarian the Senate has ever had. (Do read the article about her which I’ve included below.)

Also, even when the Chief Justice makes a ruling, if a majority of the Senators disagree with it, they can overrule him with a vote. The Chief Justice is really the “presiding officer,” not a judge. The trial is very much governed by Senators.

How will the trial start?

The resolution that the House votes on that transmits the articles to the Senate names the impeachment managers — the people who will try the impeachment case in front of the Senate. Those managers must, by Senate rule, be received by the Senate the day after they are named. This is what starts the trial.

Capture

They read the articles of impeachment to the Senate. Then the Chief Justice will be sworn in as the presiding officer. He will then administer the oath that all of the Senators must take (see above for the text of the oath.)

Then Mitch McConnell will outline the rules of the impeachment trial. He hammered these out and has the consensus of all the Republican Senators. It is expected that they are roughly similar to the rules used for Clinton’s impeachment. They will outline how long each side has to make their arguments, and when motions can be introduced, among other things.

Then the Senate will go into a brief recess so each side (the House managers and Trump’s defense) can write up their trial briefs, which outlines the arguments they will make.

Then what?

Then the meat of the trial begins. The House managers will make their case (and will have up to three full days to make it), followed by Trump’s defense who will also have an equal amount of time to state their case.

Senators are not allowed to speak while each side makes their arguments. But once they conclude, they can submit questions they want answered to the Chief Justice. During Clinton’s impeachment, this questioning lasted about three days.

Once the questioning ends, expect a lot of drama. This is because we’ll see an avalanche of motions get requested. Someone will ask for a motion to dismiss the trial altogether. Others will make a motion to introduce witness testimony. With each motion, the Senate will deliberate on the motion and then take a vote. For each motion, it only takes a simple majority to pass. The Democrats only have 47 Senators, so if they want witness testimony, they’ll need 4 Republicans to vote with them.

Depending on whether or not the Senate agrees to have witnesses, the trial will continue for as long as there are witnesses. It is conceivable that Trump’s defense will want to call witnesses as well. And yes, Trump has the option to testify if he wants.

Once all of the motions have been decided, and any requested witnesses have testified, each side makes their closing arguments.

How does the trial conclude?

Back in 1999 for Clinton’s impeachment, once the closing arguments were made, the Senate deliberated behind closed doors for 3 days, as each Senator was allowed to speak for 15 minutes. If they chose to, they could make their remarks public.

Then, in the public eye, the Senate will take a vote to convict, or not, for each article of impeachment.

How many votes does it take to convict?

67.

If Trump is convicted, what’s the timeline for his removal?

The legal consensus is that Trump would be removed immediately, i.e. Vice President Mike Pence would be administered the oath of office as soon as the day Trump is convicted. For other potential scenarios, see the article in the Further Reading section at the end of this post.

How long did President Clinton’s trial last?

5 weeks.

Has there ever been an impeachment trial without witnesses?

No. The U.S. Senate has conducted a total of 15 trials in its history (for presidents, judges, and other officials) and has had witness testimony in every one. Source

Is press being limited at the Senate trial?

Sort of. The press’ ability to move around the Senate will  not work like it normally does and so reporters won’t have the same ability to get in front of Senators when they break from the proceedings. That said, for us at home, the trial will be televised and streamed on the internet so we can watch uninterrupted. For more, see the article about this in the section below.

I hope you find this helpful. If you have additional questions, leave them in the replies. I’ll do my best to find you the answer.

Further Reading:

How a Fair, Transparent Impeachment Trial Should Proceed

How Trump’s Senate impeachment trial will work

Go Ahead, Apply the Federal Rules of Evidence to the Senate Impeachment Trial

John Roberts may be leading the Senate impeachment trial, but this woman is shaping it

The role of the chief justice in an impeachment trial

Impeachment trial security crackdown will limit Capitol press access

Impeachment Trials and the Senator’s Oath of Impartial Justice

What Would Happen in the Minutes and Hours After Trump Got Impeached and Convicted

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Originally posted on Political Charge. Re-posted with permission.


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