what happens when an impeachment goes to the senate
For the tertiary fourth dimension in American history, the House has impeached the president. Soon, information technology'll be upwards to the Senate to decide President Donald Trump's fate.
While the Constitution requires that a 2-thirds majority — 67 senators — must vote "guilty" to remove him from office, it doesn't elaborate how the Senate trial is actually supposed to work: from what the standard of proof is to what rules of bear witness utilize.
The wonky Senate impeachment rules aren't so illuminating, either. Though they specify what sure oaths must say and when certain events must happen, they leave the substantive questions largely unanswered. In short, it all really comes downward to who has 51 votes.
Both the Constitution and the Senate impeachment rules assume that a trial will occur. The Senate can't dilly dally, either. The Senate rules say that every bit soon equally the Firm appoints impeachment managers, finer special prosecutors, the Senate must receive them "immediately" to make their case. Trump will, in plough, receive a summons to announced and the White House will appoint its own lawyers.
Just just because a trial is necessary doesn't hateful it needs to exist a full-blown affair with witnesses, subpoenas and the like. With simply 51 votes, the Senate could laissez passer a motility to adjourn "sine die" at any time, catastrophe the evidence before it starts.
House Speaker Nancy Pelosi is well aware of this possibility and has indicated that she'd hold off sending the articles to the Senate until she believes they'll institute procedures to ensure a fair hearing.
The function of Chief Justice John Roberts
Where the president is impeached, the Constitution requires that the chief justice of the Supreme Courtroom preside. After administering a special oath to practice "impartial justice" to the senators, he's tasked with directing "all the forms of proceedings." Contrary to mutual parlance, he isn't actually the judge. However, he can rule on any evidentiary or incidental questions that arise.
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Should the chief justice decide that he wants to rule on a item question, his ruling would stand equally the judgment of the Senate unless a senator sought a vote on the question — in which case the question would be submitted to the Senate for a vote. The Senate could, in short, overrule him. Should the master justice not want to rule on an evidentiary question — possibly because it'south too political in nature — he could also submit information technology to a vote correct away.
During President Andrew Johnson'due south trial, Chief Justice Salmon Chase frequently ruled on motions and broke ties. Chief Justice William Rehnquist, by contrast, took a more laissez-faire approach, reportedly playing cards during the Senate breaks of President Bill Clinton'southward trial. Whether Chief Justice John Roberts will actively rule on motions is anyone's gauge, but he'll shape the tenor of the trial either fashion.
Senators have rule-setting powers
For its part, the Senate acts as both judge and trier of fact. It has the power to "compel the omnipresence of witnesses" and "enforce obedience to its orders." The only hiccup is that you need 51 votes to agree on who those witnesses are and what they're supposed to talk about.
This is already proving to be a sticking point between Senate Autonomous leader Chuck Schumer — who wants to phone call 4 current and former Trump staffers who stiffed House investigators — and Majority Leader Mitch McConnell, who apparently wants a speedy trial with no surprises.
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Whether Schumer will have his fashion and force old national security adviser John Bolton and acting White Business firm main of staff Mick Mulvaney to testify, thereby expanding the House record, will depend on whether he tin can observe iv Republican votes to back up him — potentially three if Roberts were to hypothetically break a necktie in his favor.
Noticeably absent from the rules is whatever give-and-take of standard of proof — i.e., how sure does the Senate need to exist that Trump'southward motive for withholding military assistance to Ukraine was an electoral advantage — or rules of show. That said, in that location'due south a body of Senate evidentiary precedent that could influence how Roberts rules.
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Should the chief justice decide a certain practice is sufficiently "precedential," it would crave a 2-thirds majority, 67 votes, rather than 51, to change.
The role of precedent came up during the Clinton trial when Sen. Tom Harkin, D-Iowa, wanted to open the doors during deliberations. While the rules are actually ambiguous every bit to whether the doors must exist open or closed, Rehnquist ruled that Senate precedent required the doors be closed, triggering a higher voting threshold to open them.
Recently, in that location has been talk near a secret election — a motion that would probable too require 67 votes.
Big unknowns in impeachment trial
Because the rules aren't specially prescriptive, a big unknown at this phase is whether Schumer and McConnell will agree on a gear up of comprehensive procedures for the trial. During the Clinton trial, Senate Bulk Leader Trent Lott and Democratic leader Tom Daschle famously worked together to hatch a detailed resolution, which passed unanimously. It allocated the House managers and the president equal fourth dimension to present, limiting both sides' initial arguments to the Business firm record.
Post-obit their presentations, the Senate had up to 16 hours to question both sides, afterwards which point the Senate could debate whether to dismiss or to amendment witnesses and aggrandize the Firm record.
Schumer has already called for equal fourth dimension allocation and additional witnesses, maybe taking cue from the Lott-Daschle program. Getting Republican back up seems unlikely — but and then once again, the magical number is 51.
Hilary Hurd is JD candidate at Harvard Law Schoolhouse, 2013 Marshall Scholar and frequent contributor to Lawfare. Follow her on Twitter: @Hilary_Hurd
Source: https://www.usatoday.com/story/opinion/2019/12/20/donald-trump-impeachment-trial-rules-how-to-column/2697018001/
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