First steps in a Senate impeachment trial

Senate Democrats are looking for leverage to strengthen their position in negotiations with Republicans to determine what, if any, new rules are needed to structure an anticipated impeachment trial of President Donald Trump in the coming weeks. According to reports, Democrats are considering whether to ask House Speaker Nancy Pelosi, D-Calif., to delay sending articles of impeachment to the Senate. The logic behind such a move appears to be that delay will empower Democrats to extract procedural concessions from Republicans regarding additional document requests, possible witnesses to be called, and the display of posters and videos on the Senate floor. (During the 1999 Clinton impeachment trial, the Senate passed a resolution- S. Res. 17- by unanimous consent authorizing the installation of any equipment and furniture needed to conduct the trial.)

Democrats contend that waiting until after the trial commences to secure these commitments is not an option due to the nature of the Senate’s Impeachment Rules and their minority status in the chamber. One Democratic senator commented recently, “If we don’t agree on a set of rules before the articles arrive over here, I think we’re cooked.”

Yet it is not clear how the Democrats’ gambit would lead to Republican concessions at the negotiating table. Republican senators do not appear to be eagerly awaiting the start of an impeachment trial at the end of which they decide whether to convict the president of their party. And Majority Leader Mitch McConnell, R-Ky., has criticized House Democrats for moving too quickly in what he terms “the least thorough and most unfair impeachment inquiry in modern history.” Presumably, McConnell would also like Pelosi to hit the brakes on articles of impeachment.

Articles of impeachment and the Senate
The decision on when to send articles of impeachment to the Senate is a big deal. It formally begins the process under the Senate’s existing rules and practices.

Rule II of the Senate’s Rules of Procedure When Sitting On Impeachment Trials (i.e., the Senate’s Impeachment Rules) stipulates that impeachment proceedings begin as soon as the House managers arrive at “the bar of the Senate” to exhibit their articles of impeachment against President Trump. Having done so, the Senate’s Presiding Officer (or Chair) instructs the Sergeant at Arms (the Senate’s chief protocol and law enforcement officer) to announce the following proclamation,

“All persons are commanded to keep silence, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against” the president.”

After the presentation of the articles of impeachment, the rules stipulate that the Presiding Officer informs the House managers that the Senate will notify the House when it has organized for trial. The House managers then leave the Senate.

Organizing for trial
After the withdrawal of the House managers, Rule III of the Senate’s Impeachment Rules requires it to organize for the trial and stipulates what senators are required to do to that end.

The first order of business is to administer oaths to senators and their Presiding Officer.

“I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of [Donald Trump], I will do impartial justice according to the Constitution and laws: so help me God.”
— OATH ADMINISTERED IN THE SENATE BEFORE AN IMPEACHMENT TRIAL

The Constitution (Article I, section 3, clause 6) requires the Chief Justice of the United States to preside in a trial when the House impeaches the president (or vice president). Rule IV of the Senate’s Impeachment Rules details the procedures that senators follow in that scenario. Specifically, the Presiding Officer first administers the oath mentioned above to the Chief Justice. (Senators have also selected someone other than the Presiding Officer to administer the oath to the Chief Justice. In 1868, Associate Justice Samuel Nelson administered the oath to Chief Justice Salmon P. Chase in the impeachment trial of President Andrew Johnson.)

The Chief Justice then administers the oath to senators, en bloc.

Automatic procedures
Rule IV of the Senate’s Impeachment Rules requires the Presiding Officer to notify the Chief Justice of “the time and place fixed for the consideration of the articles of impeachment.” While Rule IV dates to the 1868 impeachment trial of President Johnson, the Senate, at that time, adopted a supplementary procedure for notifying the Chief Justice. Specifically, it created a “committee of three senators” to deliver a notice to Chief Justice Chase “to meet the Senate in the trial of the case of impeachment, and requesting his attendance as presiding officer.” The order instructed the senatorial trio to “wait upon the Chief Justice to the Senate Chamber and conduct him to the Chair.”

Note: The Senate is not required to take separate action before the Presiding Officer can notify the Chief Justice in the event of a presidential (or vice-presidential) impeachment trial; Rule IV automates the process.

Six days a week?
After the administration of oaths, the Senate’s Impeachment Rules stipulate that the Chief Justice instructs the Sergeant at Arms to announce the beginning of the trial. Once organized for trial, Rule III requires the Senate to remain in session “from day to day…after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered” (Sundays excepted). “Unless otherwise ordered by the Senate” underscores the fact that senators can adopt a different trial schedule by passing a resolution to that effect. Senators may also suspend the impeachment trial by unanimous consent to consider legislative and executive business.