Old delay tactics won’t work in an impeachment trial

The House Judiciary Committee released its report to accompany the two articles of impeachment against President Donald Trump approved last week by its members on a party-line vote. The full House is expected to debate the articles on Wednesday. Should its members vote to impeach the president, the action then shifts to the Senate, whose members are charged by the Constitution to determine whether he should be convicted or acquitted.

The current rules that govern Senate impeachment trials are designed to make it easier for senators to reach a verdict one way or another. Specifically, the process is governed by a special set of 26 rules that is intended to ensure that it is conducted expeditiously. Rule VIII stipulates that the first order of business facing senators after they organize for a trial is to issue a writ of summons setting the date on which the president must respond to the accusations against him.  (The Senate also sets the date on which the House Managers respond to the president’s response.) Rule XXV even prescribes the text of the summons.

“The Senate of the United States to _____ _____ greeting: 

Whereas the House of Representatives of the United States of America did, on the __ day of ____,exhibit to the Senate articles of impeachment against you, the said _____ _____, in the words following: 

[Here insert the articles]

And demand that you, the said _____ _____, should be put to answer the accusations as set forth in said articles, and that such proceedings, examinations, trials, and judgments might be thereupon had as are agreeable to law and justice. 

You, the said _____ _____ are therefore hereby summoned to be and appear before the Senate of the United States of America, at their Chamber in the city of Washington, on the __ day of ____, at __ o’clock __, then and there to answer to the said articles of impeachment, and then and there to abide by, obey, and perform such orders, directions, and judgments as the Senate of the United States shall make in the premises according to the Constitution and laws of the United States. 

Here of you are not to fail. 

Witness _____ _____ and Presiding Officer of the said Senate, at the city of Washington, this __ day of_____, in the year of our Lord ____, and of the Independence of the United States the ______.

_____ _____,

Presiding Officer of the Senate.”

Under the Senate’s regular rules (i.e., its Standing Rules), senators could filibuster the writ of summons. But the Senate’s Impeachment Rules prohibit such dilatory tactics in order to ensure that the trial is not delayed and that a verdict is reached. Specifically, Rule XXIV stipulates that “all the orders and decisions may be acted upon without objection” during the trial. If senators object, “the orders and decisions shall be voted on without debate by yeas and nays….subject to the operation of Rule VII.” 

Rule VII requires the Presiding Officer/Chief Justice (“Chair”) to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment.” In that capacity, senators expect the Chair to rule on questions of evidence (i.e., issues of relevancy, materiality, redundancy) and any “incidental questions” that may arise during the trial. The Chair often makes a ruling when presented with such questions. But the Chair may decide to submit them directly to the Senate to be decided. If the Chair does rule on a question raised during the trial, any senator may appeal it and ask for a “formal vote.”

Regardless of whether the Chair submits a question directly to the Senate or if the Chair rules on it first and a senator appeals, the Impeachment Rules prohibit debate. Consequently, the Senate votes immediately whenever questions arise during a trial, and the side with more votes (i.e., a simple majority) wins.

While the Senate’s Impeachment Rules permit limited debate during closed sessions, senators are allowed only one speech each in such circumstances under the provisions of Rule XXIV. The rule also caps speeches on “interlocutory questions” at ten minutes.

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