Tuesday, December 17, 2019

How Will the Senate Proceed on Impeachment?

David Super

     With Senate Majority Leader Mitch McConnell declaring that there is no daylight between his and the White House’s plans for an impeachment trial, many Democrats have begun raising the specter of a sham trial that leaves the President’s conduct all but unexamined.  Senate Minority Leader Charles Schumer drew headlines with a letter to Senator McConnell setting out his caucus’s desires for how a trial should proceed.  Sen. McConnell’s negative response brought Democratic charges of a cover-up.

     Strikingly missing from this coverage is a realization that Sens. McConnell and Schumer are, in fact, two of the least-important figures in determining how an impeachment trial would occur.  This trial, like most trials, will be governed by standing procedural rules, the presiding judge, and the initiatives of the parties to the proceedings.  Those will be Chief Justice Roberts, the impeachment managers appointed by the House, and President Trump.  Senator McConnell is little more than the equivalent of the foreman of the jury. 

     Although this promises to be only the third impeachment trial of a president in U.S. history, the Senate does conduct impeachment trials intermittently for other officials, particularly federal judges.  The Senate thus has standing rules to govern impeachment trials.  Democrats surely would filibuster any attempt to change these rules to accommodate President Trump.  In theory, Senator McConnell could refuse to recognize such a filibuster just as he (and his predecessor, Senator Harry Reid) did when they changed the Senate’s rules for judicial confirmations.  In practice, forcing through eleventh-hour rule changes to shield the President over a filibuster would seal the fate of the filibuster against legislation – which Senator McConnell still very much desires – and could be so politically embarrassing that four retiring or endangered senators would fail to support the move. 

     Once the House presents its articles of impeachment to the Senate, Rule IV provides that Chief Justice Roberts “shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached”.  In that role, Rule V grants him “power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.”  Rule VI provides the “power to compel the attendance of witnesses, to enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempts of, and disobedience to, its authority, orders, mandates, writs, precepts, or judgments”.  Rule XXV provides the form of the subpoenas to be issued.

     If the managers the House appoints want Mick Mulvaney, John Bolton, Robert Blair, and Michael Duffey to testify, they may make an application to Chief Justice Roberts under Rule XVI for an order for them to attend.  Rule VII empowers the Chief Justice to decide these questions himself unless a senator asks for a vote on whether to overrule him (in which case the Senate votes without debate).  The Chief Justice can decline to rule and seek a Senate vote in the first instance, but it is difficult to see how the Chief Justice could justify not ruling himself.  Thus, Senate Republicans can block testimony from high Administration officials, but only by putting themselves on record.  Only three defections would allow the Chief Justice’s rulings to stand. 

     The Chief Justice could, of course, reject the House managers’ applications for subpoenas.  Doing so, however, would inevitably lead to charges that he is shielding the President for political reasons.  The Chief Justice, while quite conservative, has shown little appetite for politicizing the Court’s image, as such a decision inevitably would.

     If the witnesses defied these subpoenas, the Senate could “punish in a summary way contempts of, and disobedience to, its authority” under Rule VI.  A majority of the Senate could, of course, decline to do so, but here again almost all Republican senators would have to go on record allowing the White House to defy subpoenas lawfully issued on order of the Chief Justice.  (Although the votes of two-thirds of the Senate are required to convict the President and remove him from office, decisions on motions and other matters in the course of impeachment proceedings would require only a simple majority.)   At a minimum, this would severely undermine Republican senators’ ability to claim that the House’s case is “weak”.

     If enforcement of the subpoenas reached the courts, the urgency of a prompt decision would be obvious with the Senate in the midst of a trial that it is obliged to continue from day to day:  the White House strategy of stalling to run out the clock would become difficult to sustain.  Should an appeal ultimately reach the Supreme Court, the Chief Justice presumably would have to recuse himself.  Should the remaining eight justices be unable to form a majority for any result, whatever the appellate court had decided would be upheld.

     Some Republican senators have suggested that the Senate would dismiss the articles of impeachment without a trial.  The rules make no express allowance for such motions.  The Chief Justice might well rule one out of order.  If he allowed it, or if a senator sought a vote on overturning the Chief Justice, almost all Senate Republicans would have vote to foreclose calling witnesses.  In deciding to convene a trial at all, Senator McConnell appears to have concluded that such open disrespect for the process could damage vulnerable Republican senators’ re-election prospects. 

     A further note about Sen. Lindsey Graham’s declaration that he “is not trying to pretend to be a fair juror here” and has already decided to acquit the President.  Much has been made of how this may violate his oath under the Constitution to support and defend the Constitution.  Sen. Graham, however, may have a more immediate problem.  At the outset of the impeachment trial, he will be required to swear “that in all things appertaining to the trial of the impeachment of Donald Trump, now pending, I will do impartial justice according to the Constitution and laws; So help me God.”  With the Senate sitting as a court of impeachment, taking this oath in his current state of mind could place him in a precarious position.  Other Republican senators declaring their settled commitment to acquitting the President, or to accommodate his procedural preferences, would do well to consider the oath they will be compelled to take.


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