The House voted Wednesday to send the articles of impeachment against President Trump to the Senate after House Speaker Nancy Pelosi named seven managers who will act as prosecutors in the upcoming trial — just the third such trial in American history.
So what will that trial look like? How will it work? And how might it work?
Some of it will look familiar. A 1986 Senate resolution — “Procedure and Guidelines for Impeachment Trials in the United States Senate” — lays out some of the ground rules.
Others will be determined on the fly. Senate Majority Leader Mitch McConnell has said he would like it to look a lot like the impeachment trial against President Bill Clinton in 1999.
Here’s a rough outline of what to expect in the coming days and weeks:
‘Hear ye! Hear ye!’
On Thursday, the impeachment managers — seven Democratic House members, including House Intelligence Committee Chairman Adam Schiff and House Judiciary Committee Chair Jerry Nadler — will make the two-minute walk across the Capitol to physically transmit the articles to the Senate.
Once they arrive, the sergeant-at-arms will cry out, “Hear ye! Hear ye!” and give senators a warning to be quiet while the charges are read aloud.
“All persons are commanded to keep silence, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against Donald John Trump, president of the United States,” the sergeant-at-arms will say.
Chief Justice John Roberts, who will preside over the trial, will be ushered into the chamber, perhaps as soon as Thursday afternoon.
Administering of oaths
Roberts will be sworn in by Sen. Chuck Grassley, R-Iowa, the president pro tem of the Senate, and then the chief justice will administer this oath to all 100 senators requiring them to be impartial justices:
“I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of Donald Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”
Each senator will then sign his or her name in a book attesting to the oath. That includes McConnell, who has been openly coordinating with White House counsel and said last month he had already made up his mind that Trump is innocent.
“I’m not an impartial juror,” the Kentucky Republican told reporters. “There is not anything judicial about it. Impeachment is a political decision … I’m not impartial about this at all.”
The Senate must then send a summons notifying Trump of the charges against him and ask for his formal reply in writing by a yet-to-be determined time. If Trump or his attorneys fail to answer the charges, the trial will proceed, “nevertheless, as upon a plea of not guilty.”
But if a plea of guilty is entered, “judgment may be entered thereon without further proceedings.”
Setting the rules
Before the impeachment managers and Trump defense team make their cases, the Senate must first agree on the rules for the trial, including whether to call witnesses and admit new evidence, and how long each side will be given to make their arguments. The rules require a simple majority for approval.
The 1986 resolution states that senators will convene at 1 p.m. every day (except Sunday) until senators reach a verdict or dismiss the charges. That schedule has thrown a wrench into the Democratic primary, as three candidates for the nomination — Sens. Bernie Sanders, Elizabeth Warren and Amy Klobuchar — must sit as jurors for six days a week while the rest of the field is free to campaign.
The potential for a dismissal
Depending on the rules that end up passing, the Senate could have the option to dismiss the case at the outset with a simple-majority vote. This is Trump’s preferred option, but at least four Republicans say they prefer a trial and the motion will likely fail, assuming all 47 Democrats are opposed. A motion to dismiss the articles of impeachment against Clinton fell in a 56-44 vote.
It is expected that, as in a regular criminal trial, both sides will be allowed to give opening and closing arguments. Because they chose not to participate in the House impeachment process, this will be the first time Trump’s legal team will have mounted a defense.
But senators themselves will not actually be allowed to speak. Any questions they have will be submitted via notes and then read aloud to be answered either by Trump’s defense team or the impeachment managers. According to decorum guidelines provided by Senate Majority Leader Mitch McConnell’s office, no one in the chamber is allowed to have electronic devices, reading material is restricted to resources related to the trial and senators are supposed to refrain from talking to one another while the case is being presented.
It is still undecided if witnesses will be called. McConnell has said the decision will be made “at the appropriate time into the trial.” There are signs that a majority of senators might vote to call former national security adviser John Bolton, who is one of four witnesses Minority Leader Chuck Schumer has requested. The others are Mick Mulvaney, acting White House chief of staff; Michael Duffey, Office of Management and Budget associate director for national security; and Robert Blair, senior adviser to the acting White House chief of staff. But Republicans might insist on also hearing from witnesses who might be potentially embarrassing to Democrats, such as former Vice President Joe Biden’s son Hunter.
The chief justice has considerable freedom to define his role in the process, as the Constitution is quite vague, stating only, “When the president of the
United States is tried, the chief justice shall preside.” In Andrew Johnson’s 1868 trial, Salmon Chase — a former governor and senator himself who was seeking the presidential nomination at the time — was very active in the proceedings. William Rehnquist kept a low profile in Clinton’s 1999 trial, except for his controversial choice of robes adorned with gold stripes.
Roberts will call the Senate to order and decide when to adjourn for the day and read the questions submitted by the senators. He can turn for advice on protocol to Elizabeth MacDonough, a career nonpartisan government employee who serves as the Senate parliamentarian.
The Senate can overturn any decision by the presiding officer with a simple majority vote.
If the charges are not dismissed earlier in the process, the trial will come to a close with separate votes on the separate articles of impeachment (abuse of power and obstruction of Congress). If a two-thirds majority votes to convict on either one of the articles, Trump will be removed from office and Vice President Mike Pence will be sworn in as the 46th President of the United States. If both votes fall short of the threshold, Trump will remain in office with no restrictions on his power, just like Johnson and Clinton before him, but, as Nancy Pelosi said on Wednesday, “he’s been impeached forever.”
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