Senate rules of procedure for impeachment trials

Like a suitcase you had forgotten you had that falls from the top of a closet and hits you in the head, we have now become suddenly conscious of the fact that the Senate has in place a set of rules for conducting impeachment hearings. Adopted in 1986, they have been employed in the impeachment of various federal judges, and, in 1999, one president.

Twenty-six (actually XXVI) in number, the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials establish the temporal and procedural rules for the process. Some are intended to move the game along quickly, others to set the rules of the game. And one implicates the very nature of the proceedings.

The U.S. Constitution provides a bare outline: The Senate has the "sole power to try all impeachments." When sitting on impeachment, the senators shall be "on oath or affirmation," and a two-thirds vote is required to convict.

The oath raises the most controversial provision in the rules: Rule XXV contains the form of the various oaths and summons to be administered or served. The oath for members of the Senate provides that each senator swear or affirm: "I will do impartial justice according to the Constitution and laws: so help me God."

That oath is administered, and sworn to, despite the fact that it is presently regarded a virtual certainty that every senator will cast his or her vote along party lines. In fact, several members have already stated how they intend to vote, unembarrassed by the fact that not a single piece of evidence or testimony has been introduced on the Senate floor.

This posture highlights the ambiguous nature of the proceeding. Is it quasi-judicial, in the sense that only the evidence presented should be considered? Are the senators impartial jurors, in that sense? Or is this a purely political event in both the House and the Senate, in which partisanship is an entirely proper consideration? These are really "should it be" questions. We all know how it will be.

Some of the procedures will add to the drama. The House managers inform the Senate of the articles of impeachment; the Senate sergeant at arms announces the event, the person impeached is called on to "appear and answer the articles of impeachment against him; if he fails to appear, the trial shall proceed as upon a plea of not guilty." Rule VIII.

The Constitution provides that when the president (or vice president) is impeached, the chief justice shall preside. In 1999, for the Senate trial of President Bill Clinton, Chief Justice William Rehnquist accoutered himself in an elaborate robe that looked like something out of Gilbert and Sullivan. (We have seen no press reports of what Chief Justice John Roberts plans for his costume.)

As the presiding officer, all "motions, objections, requests or applications" will be addressed to him. Rule XVI. It cannot be known now how many controversial matters he will be required to decide. His rulings may be appealed to the Senate to decide whether they should be overruled in accordance with Senate rules. Rule VII. (It is hard to believe that, even though he often appears to enjoy the limelight, the chief justice is looking forward to this assignment.)

The pace of the proceeding is set forth in the rules. At 12:30 p.m. on the day after return of the summons on the person impeached, the trial shall commence with the administration of oaths, and the appearance or nonappearance of the person impeached. Rule IX. A prompt start; then Rule III requires that once the articles are presented to the Senate, it shall consider them from day to day (except Sunday) beginning at 12:30 until there is a final judgment. Rule XIII.

That means, essentially, that the senators are chained to their desks every day for the length of the trial. The limiting effect the campaigns of senators running for president (currently Bernie Sanders, Elizabeth Warren and Cory Booker) has been noted. In light of the narrow Republican majority in the Senate (53-47), daily attendance will be critical.

Rule XXII governs trial procedure: "The case, on each side, shall be opened by one person. The final argument on the merits may be made by two persons on each side (unless otherwise ordered by the Senate upon application for that purpose,) and the argument shall be opened and closed by the House of Representatives." Just like a real trial, bearing in mind that the Senate does not ever lose complete control.

The rules, comprehensive as they are intended to be, do not answer all questions. It has not yet been decided whether there will be live testimony or the introduction of statements by witnesses in written form. The two sides may be negotiating this and other matters. In 1999 the leaders of each side agreed on a joint statement, and cooperated in the process. It is unlikely that any such arrangement will be forthcoming this time.

There is reportedly disagreement on the Republican side between the president and Majority Leader Mitch McConnell on the issue of maximizing or minimizing the spectacle. The president is said to want a major dog-and-pony show in his defense; McConnell wants to dispose of the matter as quickly as possible.

The presence of television coverage may affect that determination, as well as other aspects of the proceedings.

At the conclusion of the presentation of evidence, the senators are called on to vote on the question whether "the impeachment is sustained." Articles of impeachment are voted on separately (it only takes one to convict) but they may not be "divisible."

The Constitution provides that judgment in impeachment cases "shall not extend further than removal from office, and disqualification to hold and enjoy any Office of honor, trust or Profit under the United States." Rule XXIII provides that if there is a judgment of conviction, the Senate "may proceed to the consideration of other matters." Presumably that refers to consideration of whether the disqualification shall attach to the removal from office.

It seems unlikely that this proceeding will reach that stage, but there are many interesting days ahead. Stay tuned. 