Making motions In impeachment trials

Now that the House managers have completed their presentation of the articles of impeachment against President Donald Trump, counsel for the president has up to 24 hours over three days to present their case for acquittal under the terms of the supplementary rules package (S. Res. 483) adopted by the Senate on January 21. Senators will then have up to 16 hours to question both parties.

What happens after these preliminary deliberations depends on whether senators vote to allow motions “to subpoena witnesses or documents.” If they vote to allow such motions to be offered, senators will then be permitted to make several motions on which their colleagues will be forced to vote. However, there are many procedural issues that senators can raise, unrelated to witnesses and documents, even if they decide not to allow such motions.

Senators’ ability to make these motions is derived from the Senate’s Impeachment Rules. It is also affirmed in precedent from past impeachment trials.

The impeachment rules

When the Senate is sitting on an impeachment trial, the motions that senators may make are derived, explicitly and implicitly, from its standing Impeachment Rules. For example, Rule V stipulates that senators may approve “orders, mandates, writs, and precepts…and…make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.”

Rule XIX also acknowledges senators’ ability to make motions during an impeachment trial. It requires them to put all questions for witnesses, managers, and counsel, as well as all motions and orders, in writing before sending it to the presiding officer. (Note: Motions to adjourn are exempted from this requirement.)

Rule VI authorizes the Senate to “enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempt’s of, and disobedience to, its authority, orders, mandates, writs, precepts, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice.” The rule empowers the Sergeant at Arms to “employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, writs, and precepts of the Senate.” 

Rule XIII sets the schedule for all impeachment trials. It stipulates, “The hour of the day at which the Senate shall sit upon the trial of an impeachment shall be (unless otherwise ordered) 12 o’clock pm.” The provision “unless otherwise ordered” references senators’ ability to make motions to adjust the schedule. Similarly, Rule XXVI clarifies that “the Senate may, by any order adopted without debate, fix a day and hour for resuming such consideration.”

A simple-majority decides all of these motions. The Impeachment Rules do not allow senators to debate during open sessions of a trial. However, Rule XX allows any senator to make a motion to go into closed session. Once the Senate is in a closed session, the rules allow senators to participate in limited debate. Yet even in closed session, all motions decided by a simple majority.

The precedents

Schedule. The Senate may also adjust the trial schedule as outlined in its Impeachment Rules. Senators may make motions to postpone impeachment proceedings to a future date. For example, the Senate voted 10 to 20 not to delay proceedings during the 1804 impeachment trial of John Pickering, a United States District Judge for the District of New Hampshire. And in 1868, a senator offered a motion to move the time at which President Andrew Johnson’s impeachment trial commenced from 12 pm to 11 am every day. The Senate defeated the motion by a vote of 24 to 26. However, the Senate would eventually reverse course and approve 29 to 14 a proposal made by John Conness, R-Calif., to set the daily start time at 11 am. And Simon Cameron, R-Penn., later moved that the Senate hold night sessions from 8 pm to 11 pm “until the arguments of the counsel for the President and of the managers on the part of the House of Representatives shall be concluded.”

Evidence. Senators may make motions related to whether the Senate when sitting on an impeachment trial, will hear evidence and counsel on a specific point or allegation. For example, the Senate voted 18 to 12 during the 1804 Pickering impeachment trial to hear evidence and counsel respecting Pickering’s insanity after receiving a petition and a letter to that effect from Jacob S. Pickering and Robert G. Harper, respectively. And in the 1805 impeachment trial of Samuel Chase, an associate justice of the United States Supreme Court, the Senate voted 32 to 2 to hear evidence and counsel submitted by the respondent to rebut testimony presented by the House managers. 

Questions of evidence were fiercely contested during the 1868 Johnson trial. In one typical exchange, Chief Justice Salmon P. Chase, on a motion submitted by Jacob M. Howard, R-Mich., asked the Senate whether evidence proposed to be offered by the House managers should be admitted. Charles Sumner, R-Mass., grew so frustrated with repeatedly deciding questions regarding the admissibility of evidence that he offered the following motion,

“Considering the character of this proceeding, that it is a trial of impeachment before the Senate of the United States, and not a proceeding by indictment in an inferior court; considering that Senators are from beginning to end judges of law as well as fact, and that they are judges from whom there is no appeal; considering that the reasons for the exclusion of evidence on an ordinary trial, where the judge responds to the law and the jury to the fact, are not applicable to such a proceeding; considering that according to parliamentary usage, which is the guide in all such cases, there is on trials of impeachment a certain latitude of inquiry and a freedom from technicality; and considering, finally, that already in the course of this trial there have been differences of opinion as to the admissibility of evidence, therefore, in order to remove all such differences and to hasten the dispatch of business, it is deemed advisable that all evidence offered on either side, not trivial or obviously irrelevant in nature, shall be received without objection, it being understood that the same, when admitted, shall be open to question and comparison at the bar in order to deter mine its competency and value, and shall be carefully sifted and weighed by Senators in the final judgment.”

Thirty two senators joined Conness to table Sumner’s motion over the objection of 11 senators.

Witnesses. Senators may make motions to restrict the content of witness testimony and limit the overall number of witnesses allowed. In 1868, Charles D. Drake, R-Iowa, moved that a witness question asked by the president’s counsel be submitted to the Senate to determine whether it should be admissible. Senators subsequently voted 42 to 10 that it was permitted. Similarly, James A. Reed, D-Mo., made a motion during the 1912 impeachment trial of Robert Wodrow Archbald, United States Circuit Judge of the United States Commerce Court, and the Court of Appeals for the Third Circuit, that witness cross-examination be limited to relevant issues only. And the Senate approved in the same trial a motion limiting the number of character witnesses to 15.

General procedural issues. In response to Chief Justice Chase’s decision to cast a tie-breaking vote during the 1868 Johnson impeachment trial, John Sherman, R-Ohio, offered a motion clarifying that “under the rules and in accordance with the precedents in the United States in cases of impeachments, all questions, other than those of order, should be submitted to the Senate.”

Closing arguments. Senators may also make motions to restrict or expand the number of people participating in a trial’s closing arguments. In 1868, Frederick T. Frelinghuysen, R-NJ, made a motion stipulating “that as many of the managers and of the counsel for the President be permitted to speak on the final argument as shall choose to do so.”

Final votes on articles. Senators may make motions that the Senate proceed to vote on articles of impeachment. During the 1805 Chase impeachment trial, the Senate approved a proposal offered by John Randolph, of Virginia, stipulating,

“That the Senate will on Friday next, at 12 o’clock, proceed on the trial of the articles of impeachment exhibited by the House of Representatives of the United States against Samuel Chase, one of the associate justices of the Supreme Court.” Sumner proposed a similar motion in 1868. “That the Senate, sitting for the trial of Andrew Johnson, President of the United States, will proceed to vote on the several articles of impeachment at 12 o’clock on the day after the close of the arguments.

Lot M. Morrill, R-Me, then offered an amendment to Sumner’s motion, replacing its text with the following,

“When the Senate sitting to try impeachment adjourns on to-day it will be to Monday next, at 12 o’clock m., when the Senate will proceed to take the yeas and nays on the articles of impeachment, without debate; any Senator desiring it to have permission to file a written opinion, to go upon the record of the proceedings.”

And Justin S. Morrill, R-Vt., subsequently offered a motion stating,

“That when the Senate adjourns to-day it adjourn to meet on Mon day next, at 11 o’clock a. m., for the purpose of deliberation under the rules of the Senate, sitting on the trial of impeachment; and that on Tuesday, at 12 o’clock m., the Senate shall proceed to vote, without debate, on the several articles of impeachment, and each Senator shall be permitted to file within two days after the vote shall have been so taken his written opinion, to go on the record.”

In the 1876 impeachment trial of former Secretary of War William Belknap, George F. Edmunds, R-Vt., made a motion that ordered the Senate to proceed to vote on the articles of impeachment on August 1 at 12 pm. Edmunds’ proposal also stipulated how the Senate was to vote on each article and clarified that senators would be allowed to submit their written opinions up to two days after the vote.

What happens next?

The Impeachment Rules and precedents empower senators to make several different motions during a trial. What happens next in the Trump impeachment trial will depend on whether senators vote to permit all of those motions or only some of them.