Trump Impeachment Trial to Begin With Senators Writing the Rules

(Bloomberg) -- House lawmakers frequently invoked the intentions of the Constitution’s framers as the impeachment of President Donald Trump unfolded. But when it comes to a Senate trial like the one that will take place early next year, the Constitution offers only 134 words of guidance.

The rules it lays down are spare: The Senate will hold a trial. The senators will take an oath or affirmation beforehand. Supreme Court Chief Justice John Roberts will preside over the trial. And it takes a two-thirds vote to convict.

Senate leaders have built out a set of rules over the course of 19 impeachments of presidents, judges and other federal officials conducted from 1798 through 2010. But those 26 guidelines aren’t set in stone -- and anything can be changed with 51 votes.

As the Senate moves forward, here are key decisions to be made about the trial:

When does it begin?

Senate Majority Leader Mitch McConnell said Wednesday that he would announce the Senate trial date by the end of this week.

He’s indicated previously that he would like to start the trial shortly after the new year, which would suit most Democrats.

Certainly, the five current Democratic senators who are running for president don’t want it to drag on long enough to disrupt the Iowa caucuses on Feb. 3.

The Senate guidelines say that the trial will begin at 1 p.m. on the day after members receive the articles of impeachment from the House and continue every day except Sunday until senators vote on the charges. At the start, senators will take an oath to provide “impartial justice.”

But there’s some wiggle room about when the articles of impeachment are sent to the Senate. And it would take only four GOP senators to join Democrats to change the rules.

House Speaker Nancy Pelosi said after the House votes Wednesday night that she was holding back, for now, on taking a step that would initiate the trial.

“There are rules, but effectively, there are no rules,” said Frank O. Bowman III, a law professor at the University of Missouri and the author of a book on impeachment. “The real rules are that the Senate can make up its mind about whatever it wants to do. It can change anything at pretty much any time.”

Who will argue for and against Trump?

Democrats haven’t yet settled on the public face of their impeachment effort.

During the House impeachment proceedings, Intelligence Chairman Adam Schiff of California and Judiciary Chairman Jerrold Nadler of New York led the key inquiries, and they’re likely to take leading roles presenting the House case to the Senate.

But Pelosi will designate other Democrats to play various parts on the House’s impeachment team, perhaps underscoring the diversity of her caucus through her choices.

During the impeachment of President Bill Clinton in 1998, 13 Republicans from the House Judiciary Committee were appointed as impeachment managers.

On the other side, White House Counsel Pat Cipollone will represent the president, but other Trump advisers and supporters may join in defending him.

Senate rules currently call for opening arguments in the trial to be made by one person on each side and the closing arguments by two people on each side.

How long will the trial last?

McConnell and other Senate Republicans prefer a shorter trial -- lasting perhaps two weeks -- with no new testimony, which would present fewer opportunities for political damage.

“The House chose this road,” McConnell said on the Senate floor. “It is their duty to investigate. It is their duty to meet the very high bar for undoing a national election.”

Trump, however, has expressed his preference for a longer trial in which his lawyers could bring in witnesses and go on offense against his Democratic critics.

Even without calling witnesses, the trial will take some time. Even though Clinton admitted to most of the basic allegations by Republicans in his impeachment trial, it still lasted five weeks.

Who might be summoned as witnesses?

Senate Minority Leader Chuck Schumer has called for four witnesses to testify, including Acting White House Chief of Staff Mick Mulvaney and former National Security Adviser John Bolton, both of whom refused to appear before the House in deference to Trump’s demand that no current or former administration officials cooperate with the probe.

In the confrontational trial that Trump envisions, his defense lawyers could call everyone from Schiff to the anonymous whistle-blower who sparked the investigation to former Vice President Joe Biden and his son Hunter to testify under oath.

Politically, it would be difficult for McConnell to let Trump’s lawyers call witnesses and not allow the House impeachment managers to do the same.

Ultimately, the decisions rests with McConnell -- unless four Republican senators join with Democrats to force him to change course.

As in Clinton’s trial, senators could also punt, postponing the decision on calling witnesses until after both sides have presented the evidence gathered by the House.

What role will the chief justice play?

The framers of the Constitution originally envisioned the vice president running the Senate on a day-to-day basis, which isn’t how it played out. But because it would be a conflict of interest for the next-in-line to preside over an impeachment trial, they designated the chief justice of the Supreme Court for that role.

Still, it’s not really clear what, exactly, the chief justice is supposed to do, and chief justices have come to different conclusions.

Salmon Chase played an active role in shaping debate during Andrew Johnson’s impeachment trial in 1868, but William Rehnquist took a hands-off approach to Clinton’s trial, according to Brenda Wineapple, author of “The Impeachers.”

Roberts, who famously said judges should just call “balls and strikes,” is unlikely to take a more aggressive approach, said Bowman. Even if he did, senators could vote to overrule him on any point with just 51 votes.

If he wanted, Roberts could also frame the questions that need to be decided and put them to a vote.

Will senators close the doors?

Although most of the trial will be public, the Senate may opt to close the doors for deliberations on big decisions.

The 1986 guidelines call for a public trial but allow senators to vote to go into a closed session for deliberations or any other reason.

During deliberations in the impeachments of Johnson and Clinton, the Senate closed the doors to the public at times.

What will senators vote on?

In some early impeachment cases, senators voted separately on whether to acquit or convict officials and whether to remove them from office.

In recent years, conviction has typically been interpreted as including removal from office, so only one vote has been taken, according to Daniel Holt, assistant historian in the U.S. Senate Historical Office.

Under the Constitution, senators can also decide to disqualify the official from holding any office in the future, as they did in the impeachment trial of U.S. District Court Judge Thomas Porteous in 2010. That’s typically handled as a separate vote.

For now, it seems unlikely that the necessary two-thirds of senators would vote to convict Trump, so the other two questions are probably moot.

So exactly what does the Constitution say?

Article I

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

--With assistance from Steven T. Dennis and Billy House.

To contact the reporter on this story: Ryan Teague Beckwith in New York at rbeckwith3@bloomberg.net

To contact the editors responsible for this story: Kevin Whitelaw at kwhitelaw@bloomberg.net, Larry Liebert, John Harney

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