(Over the Cliff Notes)
Art. I, Sec. 3 tell us:
After approving Articles of Impeachment, the House selects managers who act as prosecutors at the trial. In the Johnson trial, there were 7 managers. In the Clinton trial, there were 13 managers. [Interesting tidbit: One of them was Sen. Lindsey Graham (SC) Two others remain in the Senate, Steve Chabot (OH) and Jim Sensenbrenner (WI).]
The Senate Rules are here. Full text of the Constitution here.
From Senate Rule I: The business in the Senate kicks off when the Senate receives notice from the House that managers have been appointed and “directed” to carry articles of impeachment to the Senate:
When the Senate receives notice, the secretary of the Senate “immediately” informs the House that the Senate is “ready to receive the managers.”
The Senate rules dictate much pomp and formality, but very little substance. For example, Rule II says requires a scripted announcement before the managers present the Articles of Impeachment to the Senate:
Rule III tells us that at 1:00 p.m. the day after being presented with Articles of Impeachment (except Sunday), the Senate shall “proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted . . . until final judgement shall be rendered. . .”
At the Clinton trial, Chief Justice Rehquist clarified that, while the Chief Justice “presides,” the Senators are essentially both judge and jury.
First, the Chief Justice is sworn in, then he administers this oath of office to the Senators:
The Senate has the power to compel witnesses to testify (Rule VI):
Notice there is nothing there that says “subject to judicial approval.” In other words, the Senate asserts that it doesn’t have to wait for the courts to decide whether it has authority to call witnesses. After all, the Senate has the “sole power to try impeachments.” Moreover, the Constitution includes judicial oversight by having the Chief Justice preside.
Rules V and VII, provide that the Chief Justice shall direct preliminary preparations, but may make all orders and rulings that an ordinary judge would make. (“May” means he doesn’t have to: He can defer the decision to the Senate.) The hitch is that even if he does make a ruling, he can be overruled by a majority of Senators:
As a practical matter, this gives a majority of Senators a great deal of power over evidentiary and other decisions. The rules do not specify burdens of proof or other rules of evidence. It’s basically up to the Senators.
Rule VIII offers formalities about how the president is informed that he has been impeached. (This was written before modern marvels of technology like Twitter, when the president knows the moment something happens):
If the president fails to file an answer, the Senate assumes the answer is “not guilty.”
The president can appear in person, or he can have someone else (lawyers) appear on his behalf:
The Senate can appoint a committee of Senators to hear the testimony. The committee can certify a copy of the transcripts and present it to the Senate. The full Senate can still call witnesses:
Rules XII and XIII offer more formalities about when proceedings start and end.
Rule XV provides that “counsel for the parties” are to be heard; which means that the House Managers cannot be prevented from presenting their case:
Senators address any questions or objections to the Chief Justice (a rule which maintains decorum):
Rule XVII prevents the 5-minute questioning of witnesses by each Senator. One person conducts the examination, another the cross-examination:
Rule XVII says Senators can be sworn in as witnesses.
If a Senator wants to ask a question, he or she submits the question is to the Chief Justice, who reads the question. Senators are specifically told not to engage in colloquy:
Opening and closing arguments are also limited:
While the trial is in progress, the Senate doors are to be open. The doors can be closed while the Senate deliberates:
A Senator can make a motion to adjourn for a day, or indefinitely:
“Sine die” means without a day, which means to adjourn without an end date. Lawfare takes this to mean effectively dismissing the case. When the Senate adjourns sine die, it means that a date for return will be given later.
The remainder of the rules deal with closing procedures, deliberating, and voting. I’ll add those later.
Notice: A supermajority (2/3 of Senators present) is required to change a rule, but the important stuff has been left vague, so key questions are up to a majority of Senators present. Lawfare points out that there is a respectable body of precedent on how evidentiary matters have been handled for the impeachment of judges, but Senators are not bound by this precedent.
Here was the Resolution agreed to by both sides in the Clinton trial.
Additional Reading:
Yale professor Bruce Ackerman’s Slate article on what to expect in a Senate trial.
Also, this Lawfare roundup.
I also have a FAQ here:
