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A Brief Guide to the Weird Constitutional Rules on Impeachment

An Impeachment Senate 'Trial' Is Unlike Any Other

(Bloomberg Opinion) -- The jockeying has already begun over the structure of President Donald Trump’s Senate trial. Senate Majority Leader Mitch McConnell has discussed it with the White House counsel; Senate Minority Leader Charles Schumer has sent McConnell a letter proposing detailed protocols. All this action, even before the House of Representatives has formally impeached Trump, might be making you wonder: Isn’t there some pre-existing trial protocol required by the Constitution? Do we really have to have a debate about how the trial is going to run before it actually happens?

The short answers are no, there isn’t a clear constitutional mandate for what the Senate trial should look like; and yes, there really does have to be a fight about what procedures the Senate will use in trying Trump. This seems like a crazy way to do things, but it reflects the framers’ recognition that impeachment as they knew it from England had always had a political side, and their reticence about putting too much detail in the Constitution.

The Constitution in article I, section 3 gives the Senate “the sole Power to try all Impeachments.” Then it provides just three brief rules about the trial itself.

The first rule is that “When sitting” for an impeachment trial, the senators “shall be on Oath or Affirmation.”  The requirement that the Senators take an oath is the reason that we sometimes refer to the Senators as “jurors.” A juror is, technically, someone who swears an oath (from the Latin iurare, meaning to swear).

The Senators under oath get to vote on whether the president will be removed or not; but that’s pretty much where their resemblance to jurors in a court case ends. The Senators can’t, for example, be restricted from hearing news about the subject of impeachment before or during the case.

The oath that the Senate uses (written, naturally, by the Senate) states that the Senators “will do impartial justice according to the Constitution and laws.” That sounds jury-like. But the meaning of impartiality can’t be exactly the same as it would be for an ordinary jury member or judge, given that the Senators are responsible to constituents and belong to political parties, and that impeachment has a political dimension.

The second rule is that “When the President of the United States is tried, the Chief Justice shall preside.” The Constitution doesn’t, however, say exactly what powers the Chief Justice has while presiding. That’s left up to the Senate. And in its wisdom, or maybe its self-interest, the Senate has usually decided that any decision rendered by the Chief Justice could be overturned by a majority of, you guessed it, the Senate.

The third rule is that “no Person shall be convicted without the Concurrence of two thirds of the Members present.” This rule makes the Senate trial different from a criminal trial, which requires unanimity for either guilt or innocence, and also from a civil trial, which requires either unanimity or a majority of jurors, depending on the state.

The key point here is that everything beyond these three simple rules is left to the Senate, which, like the House, has the constitutional authority to make its own rules of procedure. The Supreme Court can’t review those rules, unless it could somehow be argued that the rules render the proceeding something other than a “trial” as required by the Constitution.

If you’re designing a trial on a blank slate, the major issues are which witnesses can be called and which evidence can be considered. Pretty much both of these are up for grabs. Neither is specified in the impeachment rules that the Senate has in place.

By tradition drawn from England, members of the House of Representatives function as prosecutors in the Senate trial, and are called the impeachment managers or the House managers. Almost by definition, the managers are members of Congress who voted to impeach.

When President Bill Clinton was impeached, the Senate unanimously adopted rules governing how much time each side would have to present its case. The Senators couldn’t agree unanimously on witnesses. In a vote that had partisan overtones, with all the Republicans voting in favor, the Senate decided to let the impeachment managers call witnesses.

It would seem strange if Trump could call witnesses in his defense while the impeachment managers could not call witnesses. But that’s not completely out of the question: it’s up to the Senate. The Republicans in the Senate might conceivably have the votes to block the managers from calling witnesses. Or they could decide not to allow any witnesses at all on either side.

As for which evidence is allowed, there’s a good bit of variation in historical practice. Evidence that would not otherwise be admissible in court, like some hearsay, was allowed in the Clinton trial and in other modern impeachment trials in the Senate. But in the 1831 impeachment trial of Judge James Peck, the Senate debated the issue and decided that the trial should follow the same strict rules of procedure and evidence that would apply in an ordinary court. This practice prevailed into the early 20th century.

The same debate over the evidence question took place in England at the House of Lords trial of Warren Hastings, the former governor general of Bengal, who was facing the start of a long impeachment process while the framers were drafting the Constitution in the summer of 1787. Edmund Burke, the great writer and parliamentarian who managed the impeachment, argued eloquently to the House of Lords that it was completely inappropriate to use ordinary trial procedure in a proceeding for high crimes and misdemeanors. Yet the Lords decided against Burke, and refused to consider much of the evidence he had amassed against Hastings. (That debate isn’t evidence of the framers’ intent; nonetheless, the Senators carefully considered Burke’s argument and its rejection in 1831.)

The upshot is that a majority of the Senate can decide which witnesses will be heard and which evidence it will consider. It’s a funny way of conducting a trial. But an impeachment trial isn’t business as usual — and probably could never be.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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