Caroline Brehman/CQ Roll Call via AP Images
Impeachment trials in the Senate are conducted by majority rule, and Majority Leader Mitch McConnell will exert a heavy influence on his Republican caucus.
After Donald Trump is formally impeached by the House on Wednesday, all eyes will turn to Senate Majority Leader Mitch McConnell (R-KY). Senate rules, enforced by a 1986 memo, require the chamber to take up the House’s impeachment articles the next business day once they are sent over. Therefore McConnell cannot consign impeachment to the “legislative graveyard,” where hundreds of pieces of House-passed legislation that he disfavors now sit. McConnell acknowledged in September that the Senate would have to carry out its constitutional responsibilities.
When it comes to the rest of the trial, however, McConnell will play a major role. With the support of his caucus, he can execute the creative interpretations of Senate procedure for which he is well known. This will dramatically affect how the impeachment trial is conducted.
“A lot of people think that [Senate] procedure is easy, that you have rules that are easy to understand and that if you don’t understand the rules that you have precedents that govern every possible situation,” said Alan Frumin, a former Senate parliamentarian, in an interview with the Prospect. “[But] almost everything’s a judgment call … and with respect to understanding the rules and guidelines to impeachment, you can take that situation and double.”
In President Bill Clinton’s impeachment, the Senate created a bipartisan caucus of all 100 senators to decide how to move forward. Almost every decision, from witnesses to call and resolutions on procedure, were made unanimously. Frumin worked as parliamentarian during six impeachments, including sitting second chair on Clinton’s impeachment trial. He calls the caucus of 100 “unprecedented,” making it difficult to look back on the Clinton impeachment as a guide, despite it being the most recent example. “My guess is [Trump’s Senate trial] would not be a kumbaya trial,” he says.
Senate Minority Leader Chuck Schumer (D-NY) sent a letter to McConnell on Sunday asking him to “[keep] with the bipartisan spirit of the procedures adopted in the trial of President Clinton in 1999.” In the letter, Schumer asks that the Senate allow House managers to call witnesses, and request testimony from officials with direct knowledge of the Trump administration practices on Ukraine who did not participate in the House investigation. Schumer also proposes that the presiding officer, Chief Justice of the United States John Roberts, issue subpoenas for testimony, which happened during Clinton’s trial and is outlined in the 1986 rules.
McConnell has not yet responded to his Democratic counterpart, and he may not have to, because impeachment trials in the Senate are led by majority rule. In fact, McConnell has said he already knows how this process will end, in an interview with Fox News’s Sean Hannity on December 13. “Absent consensus of the two leaders attaining unanimous consent, somebody has to be in charge,” Frumin says. “The minority would be well advised to work with the majority and try to come to a resolution that is acceptable to all parties, but absent that the majority has to have the ability to make the decisions.”
Justice Roberts will be the presiding officer of the impeachment trial (replacing the vice president, given the evident conflict of interest). As the rules currently state, Roberts will sign off on subpoenas to witnesses and for evidence. But Frumin says his role will be limited and will not influence the direction of the trial. For example, Democrats would need at least three Republican senators to vote with them to secure subpoenas for former National Security Adviser John Bolton and current Acting Chief of Staff Mick Mulvaney, whom Schumer would like to hear from in the Senate trial. “There are questions that [Roberts] will have to answer and questions he might have to rule on,” Frumin says. “But as a practical matter, the [Republican] majority is in charge of the trial.”
The final decision on impeachment and removal from office is not up for judicial review. In 1992, the Supreme Court decision in Nixon v. United States—referring to impeached judge Walter Nixon (no relation to President Richard Nixon)—stated clearly that impeachment was “nonjusticiable, i.e., involved a political question that could not be resolved by the courts.”
This leaves many elements of the trial up to majority rule: the length, which witnesses are called, and what evidence gets submitted. None of these votes are subject to a filibuster, requiring only a simple majority, which the Republican Party already has in the Senate with 53 members. If McConnell can maintain party unity, he will have the force he needs to create his vision for the impeachment. McConnell told Hannity last Friday that he will work with the White House counsel on all decisions for the trial, and one can assume his decisions will also be guided by his political instincts to protect fellow Republicans.
McConnell will exert a heavy influence on his Republican caucus, but those senators will also have to consider the will of their constituents, which remains fluid. This could mean voting with Democrats to see more evidence or hear from certain witnesses and extending the length of the trial to do so, despite McConnell’s goal of a speedy process. “This is not a static situation, things are moving and changing all the time. Right now the impulse is to get rid of it,” said Mike Seidman, a constitutional-law professor at Georgetown University Law Center, in an interview with the Prospect. “It’s important to realize that this is a political process. It has some legal aspects to it but public opinion matters a lot.”
This all happens while Senate business continues, Frumin notes. The rules state that the Senate trial should start at noon each day, leaving the morning for regular business. The trial would even continue in the event of a government shutdown. Since the Senate is largely a judicial-confirmation factory these days, that business could continue in the mornings, although probably not with the same speed that McConnell has pursued previously.
At any point during the Senate trial, any senator has the power to end it through a motion to dismiss the charges against the president. It would only need a simple majority to pass. A Republican senator looking to show their loyalty to Trump may want to attempt this. Seidman says, “Presumably defenders of the president would propose it, then there would be a vote.” If this motion passed, then the trial would effectively end.
If the trial survives a motion to dismiss, then the Senate could also hear from Trump himself. The Senate rules also say whoever is impeached “shall be called to appear.” In past impeachment trials of presidents, their legal representatives have answered that call. Clinton did not appear before the Senate, and historical documents show that Andrew Johnson did not either.
You can hear Trump’s lawyers screaming in the distance telling him not to testify. But Trump is the leading voice in the GOP, and famously not one to stay silent. “A president has never done it, but I don’t see why [Trump] couldn’t,” Frumin says. “I think it’s a fair question as to whether or not there would be a role to play for the president: for him on his own behalf and his counsel on his own behalf.” Of course, that could open him up to cross-examination from House managers, and Trump typically likes speaking on exclusively friendly turf.
In the Senate trial, senators are passive observers. For example, any questions they have for witnesses, including possibly the president, are sent in writing to the presiding officer to pass along, neutering any shock value from a back-and-forth round of questioning.
In addition to what’s under McConnell’s discretion, there is some rule enforcement from career Senate officials, like Chief Parliamentarian Elizabeth MacDonough and her colleagues. Frumin refers to these employees as the Senate’s base of institutional knowledge. “Some refer to us as the deep state, I refer to us as the bedrock of the government,” he says.
Under their control will be the attendance of senators. There are currently five Democratic senators running for president, meeting voters around the country and not regularly on the Senate floor. The sergeant at arms “may request and subsequently compel” their attendance, not just for their verdict vote, but also for all testimony, according to Senate rules.
Frumin says we should not expect to see every senator on the floor during this trial, though most media has assumed the opposite. An official from the Office of the Sergeant at Arms said in an email to the Prospect that the office will not compel attendance as long as 51 senators are present to conduct business—also known as a quorum, stated in Senate Rule VI. However it “may adopt motions” to exercise its power if the quorum is not met.
The expectation that senators must sit as jurors for the duration of the trial, even if the sergeant at arms won’t rigorously enforce this, could make it difficult for candidates like Bernie Sanders, Elizabeth Warren, and Amy Klobuchar to find time to hit the campaign trail. McConnell may have that in mind when determining the length of the trial.
Clinton’s trial lasted about five weeks, Richard Nixon’s impeachment never reached the Senate (or the House), and Johnson’s Senate trial lasted about two months and ten days. It’s impossible to know how long Trump’s trial will be beyond McConnell’s current indications that it will be short.
Ultimately, it would take a two-thirds vote of all senators present to remove the president from office. If everyone votes, that would mean that 20 Republican senators would have to cross the aisle to support conviction. It’s fair to say that is not going to happen, given the makeup of the Senate.
Although the Senate trial will have a legal framework, it is not intended to answer the question of whether Trump broke the law or not. “This is a decision ultimately for the American people and their representatives about whether this person’s fit to be president,” says Seidman. “That is not a legal standard.”
