TODAY IN CONGRESS
SENATE IMPEACHMENT TRIAL RULES — Analysis #1
Introduction — First, as of this writing, we do not have any Senate Rules specific to Trump’s Impeachment trial. What those specific rules will be, will be determined by 51 Senators (most likely by 51 GOP Senators) before the start of the trial and NOT by the pathetic looking man in the picture, although he will certainly have a major hand in writing the rules and whipping up GOP votes for them. This man, #MoscowMitch has said the rules he plans to introduce will be very similar, but presumably not identical, to the Senate’s rules used during the Impeachment trial of William Jefferson Clinton (hereafter referred to as the “Clinton Rules”). So on that basis, I will explore what those Clinton Rules are and what effect they will have on the trial of Donald J. Trump. I will try my absolute best to provide you with the factual, real poop based on my research and analysis, and correct some of the inaccuracies and BS the media has been putting out regarding the Senate Impeachment Trial Rules. But as you read this, please keep in mind that the actual Senate Rules for Trump’s impeachment may differ in slight or significant degree from these Clinton Rules.
This Analysis #1 will focus on two (2) important topics upon which the Senate Impeachment Rules will have a significant bearing: 1) Senate Dismissal of the Trial; and 2) The Procedures for Introduction of Documentary Evidence / the Calling of Witnesses. These seem to be the current hottest topics with respect to the impeachment trial, so I thought I would start with them. I’m not sure if I will get to evaluating the rules with respect to other impeachment trial topics in an “Analyses #2, #3, etc.”, in future TIC posts. That will depend on how busy things get in terms of day to day impeachment developments needing coverage, and frankly if I can find the time (as the “Doctor” I do have other have other urgent needs throughout the universe that need my attention). But before I get into “Analysis #1”, let me present a little historic background on the Senate Rules regarding impeachment to set the stage.
Historic Background — Let me start off by saying the historic summary on Senate Rules and Procedures related to Impeachment Trials which I have presented below is taken from this great article by James Wallner of LegBranch.org which I strongly encourage folks to give it a read. I think it’s right on the mark.
First, there are 26 Senate Rules governing the procedures for Senate Impeachment Trials which were originally adopted by the Senate in 1868 for the Impeachment of President Andrew Johnson, and were last revised in 1986. These 26 Rules (numbered by Roman Numerals I — XVI) are currently part of the “Standing Rules of the Senate” which are adopted at the beginning of each term and govern impeachment trials. You can read/download these 26 Standing Senate Impeachment Rules HERE, and I would encourage you to do so since they will be referred to numerous times during this diary and will be handy as the Senate Trial gets underway.
So what are the Clinton Impeachment Rules that McConnell and the media are all talking about? In January 1999, the Senate adopted supplementary rules during President Bill Clinton’s impeachment trial. As outlined in the James Wallner Article:
On January 8, 1999, at the beginning of the trial, senators approved a resolution (S. Res. 16) that, among its provisions, specified the dates on which the president must respond to the impeachment summons and the House was required to file its replication along with the full impeachment record compiled by the House Judiciary Committee. S. Res. 16 also set deadlines “to file any motions permitted under the rules of impeachment…” and added to the established impeachment procedures a 16-hour block of time for senators to question the parties after the president’s presentation (italics added for emphasis).
S. Res. 16 also established additional rules relating to witnesses. Specifically, it stipulated,
“If the Senate agrees to allow either the House of Representatives or the President to call witnesses, the witnesses shall first be deposed, and the Senate shall decide after deposition which witnesses shall testify, pursuant to the impeachment rules.”
On January 28, 1999, the Senate passed a resolution (S. Res. 30) that authorized more supplementary rules. These included rules authorizing the issuance of subpoenas to take depositions from specified witnesses, stipulated that the majority and minority leaders would determine the deposition time for all witnesses and empowered the House managers and the president’s counsel to make a motion to resolve any objections made during the depositions after a short review period. S. Res. 30 also set aside a 24-hour block of time for the president’s counsel to make motions concerning testimony or evidence.
Both resolutions reference the Senate’s underlying 26 Standing Impeachment Rules several times. So what McConnell is most likely talking about is adopting Senate Rules to supplement the 26 Standing Senate Impeachment Rules and that these “supplemental rules” will be similar to Senate resolution (S. Res. 16) and Senate resolution (S. Res. 30) which were put in place specifically for the Clinton trial. Now that we all have got that straight, let’s move on to Analysis #1 to evaluate how these Standing Rules and possible Supplements that will come into play during the Trump Impeachment Trial.
Analysis #1 — Senate Dismissal of the Trial — The topic of Dismissal is not directly addressed by the 26 Standing Rules, but indirectly by Senate Standing Rule III which says that:
“...consideration of such articles [Articles of Impeachment] and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.”
So this rule suggests to me the Senate can end (dismiss) the trial at anytime by a majority vote. However, Senate resolution (S. Res. 16) of the “Clinton Rules” specifically addresses Dismissal as laid out below:
“...the House of Representatives shall make it’s presentation in support of the articles of impeachment for a period of time not to exceed 24 hours. Each side may determine the number of persons to make it’s presentation. The presentation shall be limited to argument from the record. Following the House of Representatives presentation, the President shall make his presentation for a period not to exceed 24 hours as outlined in the paragraph above with reference to the House of Representatives presentation. Upon the conclusion of the President’s presentation, Senators may question the parties for a period of time not to exceed 16 hours. After the conclusion of questioning by the Senate, it shall be in order to consider and debate a motion to dismiss as outlined by the impeachment rules...”
“...Following debate and any deliberation as provided in the impeachment rules, the Senate will proceed to vote on the motion to dismiss...”
Therefore, if the above “Clinton Rules” are followed in Trump’s Impeachment Trial, an initial motion to dismiss can be made, debated and voted on immediately after the House Managers and President’s lawyers complete their opening statements and the Senate completes up to 16 hours of debate. Subsequent Motions to Dismiss can be anytime thereafter, in accordance with the Senate’s 26 Standing Impeachment Rules. Under the Standing Rules of the Senate, any motion to dismiss would require a simple majority to pass. That means 51 Senators. However, if the vote among the Senators ends in a 50/50 split, the Presiding Officer of the Senate (who would be the Chief Justice in this case, not the VP who has no role in an impeachment trial involving the President) would be required to cast the tie breaking vote. At least that’s my interpretation of the Standing Rules.
Analysis #1 — Procedures for Introduction of Documentary Evidence / the Calling of Witnesses — This is where things get a bit complicated. That’s because this really involves two (2) questions regarding new evidence and witnesses, When? and How? Let’s take the “When?” first.
— When Can New Evidence Be Introduced and/or Witnesses be Called? — Senate resolution (S. Res. 16) (from the “Clinton Rules”) states:
“The President and the House of Representatives shall have until 5:00 p.m. on Monday, January 11, 1999, to file any motions permitted under the rules of impeachment except for motions to subpoena witnesses or to present any evidence not in the record.”
This part of the resolution deals with motions that can be made by the House Managers and the President’s lawyers at the beginning of the trial, and specifically prohibits motions involving the introduction of new evidence (i.e., evidence that surfaced after the passage of the Articles of Impeachment) and the calling of witnesses. Senate resolution (S. Res. 16) then goes on to state:
“Upon the conclusion of the President’s presentation, Senators may question the parties for a period of time not to exceed 16 hours. After the conclusion of questioning by the Senate, it shall be in order to consider and debate a motion to dismiss as outlined by the impeachment rules. Following debate it shall be in order to make a motion to subpoena witnesses and/or to present any evidence not in the record, with debate time on that motion limited to 6 hours, to be equally divided between the two parties. Following debate and any deliberation as provided in the impeachment rules, the Senate will proceed to vote on the motion to dismiss, and if defeated, an immediate vote on the motion to subpoena witnesses and/or to present any evidence not in the record, all without intervening action, motion, amendment or debate.”
Based on the above part of S. Res. 16 of the “Clinton Rules”, a motion to call witnesses and/or present new evidence can be entertained/voted on only after a motion to dismiss has been defeated. So passage of a motion to dismiss at this point would end the trial without any witness testimony or the presentation of new evidence. That answers the When?, now for the How?
— How Can New Evidence Be Introduced and/or Witnesses be Called? — To start off with, a motion to introduce new evidence and/or call witnesses is partially dealt with as any other motion. That being by Standing Rule VII below:
“... And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate. Upon all such questions the vote shall be taken in accordance with the Standing Rules of the Senate.”
So let’s break this down. First, any motions to call witnesses and/or present new evidence would be presented to the Presiding Officer (i.e., Chief Justice Roberts). If he rules positively on the calling of witnesses and/or new evidence, it will take 51 Senators under the Standing Rules of the Senate to overrule the Judge’s ruling, so only 50 votes would be needed to sustain the Judge’s ruling to call witnesses and/or present new evidence, meaning that in This Trump Impeachment Trial only 3 GOP Senators would be needed to sustain the Judge’s ruling for witnesses/new evidence. Of course, if Robert’s were to rule negatively on the calling of witnesses and/or new evidence, the reverse would be true (i.e., at least 4 GOP Senators would be needed to overrule the Judge’s ruling to deny witnesses and/or evidence).
However, this rule also allows the Judge to decide not to decide (“If you decide not to decide you still have made a choice”, I couldn’t resist making this Rush Lyric quote). This means that he can simply allow the Senate to decide for itself on witnesses and/or new evidence without ruling either way. In this case, it would take 51 Senators (at least 4 GOP Senators) to call witnesses and/or present new evidence. However, in the event of a 50 / 50 split, I believe the Chief Judge, in his role as Presiding Officer, would be forced to cast the deciding vote according to the Standing Rules of the Senate.
So that’s how new documentary evidence can be introduced, but this doesn’t end the story with regard to how witnesses are called.
Once the decision is made to allow the House Managers and/or the President's lawyers to call witnesses, the ordering/subpoenaing of such witnesses is addressed by Standing Rule VI which States:
“VI. The Senate shall have 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, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice. And the Sergeant at Arms, under the direction of the Senate, may 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.”
Also, Standing Rule XXV prescribes the form and wording of the witness subpoena. But that does not get the witness in front of the full Senate. Unfortunately, this is the Senate which loves its elaborate procedures. So to begin the witness testimony procedure we start with Senate resolution (S. Res. 16) of the “Clinton Rules” which states:
“If the Senate agrees to allow either the House of Representatives or the President to call witnesses, the witnesses shall first be deposed and the Senate shall decide after deposition which witnesses shall testify, pursuant to the impeachment rules. Further, the time for depositions shall be agreed to by both leaders. No testimony shall be admissible in the Senate unless the parties have had an opportunity to depose such witnesses.”
So all witnesses must first be deposed before the full Senate decides which witnesses it wants to hear from. How this deposition happens depends on the rules of course, starting with Standing Rule XI:
“XI. That in the trial of any impeachment the Presiding Officer of the Senate, if the Senate so orders, shall appoint a committee of Senators to receive evidence and take testimony at such times and places as the committee may determine, and for such purpose the committee so appointed and the chairman thereof, to be elected by the committee, shall (unless otherwise ordered by the Senate) exercise all the powers and functions conferred upon the Senate and the Presiding Officer of the Senate, respectively, under the rules of procedure and practice in the Senate when sitting on impeachment trials. Unless otherwise ordered by the Senate, the rules of procedure and practice in the Senate when sitting on impeachment trials shall govern the procedure and practice of the committee so appointed. The committee so appointed shall report to the Senate in writing a certified copy of the transcript of the proceedings and testimony had and given before such committee, and such report shall be received by the Senate and the evidence so received and the testimony so taken shall be considered to all intents and purposes, subject to the right of the Senate to determine competency, relevancy, and materiality, as having been received and taken before the Senate, but nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the entire trial in open Senate.”
Although the above Standing Rule talks about appointing a Committee of Senators to conduct witness depositions, notice it says “if the Senate so orders” making the use of a Committee an option, not a mandate. That’s where Senate resolution (S. Res. 30) of the “Clinton Rules” comes in again, which states in Sections 203 & 204:
“SEC. 203. Depositions authorized by this resolution shall be taken before, and presided over by, on behalf of the Senate, two Senators appointed by the Majority Leader and the Democratic Leader, acting jointly, one of whom shall administer to witnesses the oath prescribed by Rule XXV of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials. Acting jointly, the presiding officers shall have authority to rule, as an initial matter, upon any question arising out of the deposition. All objections to a question shall be noted by the presiding officers upon the record of the deposition but the examination shall proceed, and the witness shall answer such question. A witness may refuse to answer a question only when necessary to preserve a legally-recognized privilege, or constitutional right, and must identify such privilege cited if refusing to answer a question.
SEC. 204. Examination of witnesses at depositions shall be conducted by the Managers on the part of the House or their counsel, and by counsel for the President. Witnesses shall be examined by no more than two persons each on behalf of the Managers and counsel for the President. Witnesses may be accompanied by counsel. The scope of the examination by the Managers and counsel for both parties shall be limited to the subject matters reflected in the Senate record. The party taking a deposition shall present to the other party, at least 18 hours in advance of the deposition, copies of all exhibits which the deposing party intends to enter into the deposition. No exhibits outside of the Senate record shall be employed, except for articles and materials in the press, including electronic media. Any party may interrogate any witness as if that witness were declared adverse.”
As you can see by the above, there is no Senate Committee involved in conducting witness depositions under Senate resolution (S. Res. 30) of the “Clinton Rules” as allowed under the 26 Standing Rules. Instead the deposition is conducted by the House Managers and President’s lawyers, and presided over by a Senator of each Party. Which leads us to where things could get messy. For instance, what if the Presiding Officers (one from each Party) can’t agree on whether a question or series of questions posed to a witness can be asked? And how is a witness’s claim of privilege or Constitutional right resolved with respect to the witness refusing to answer a question, or questions? With regard to objections over questions, it sounds like the rule requires the witness to answer the question with the noted objection in the record to be ruled on later to decide if the witnesses response does or does not get expunged from the record, most likely in accordance with Standing Rule VII above. As such, I would expect that these would be “closed door” depositions in order to allow responses to be expunged from the record before the deposition record is made public. The same goes with the witness’s exertion of privilege or right to refuse to answer a question. He will be initially allowed to not answer until the question of privilege/right is resolved in accordance with Standing Rule VII. As I said things could get messy in these depositions.
I would note that Sections 205 & 206 of Senate resolution (S. Res. 30) of the “Clinton Rules” goes into the procedures of recording and videotaping of depositions which I won’t go into here so as to not bore you further.
After depositions are completed, it appears the action reverts back to the full Senate Trial. At that point the Senate will have to decide whether to have the witness provide in person oral testimony in front of the full Senate, to view the videotaped deposition in open trial or to simply allow the witnesses deposition into the official trial record, in accordance with with Senate resolution (S. Res. 16) of the “Clinton Rules” and Standing Rule VII. Also, at this point, the Presiding Officer (Justice Roberts) and the full Senate would have to rule on any objections made by the Parties during the depositions and any claims of privilege or Constitutional Right made during the deposition, all in accordance with Standing Rule VII.
Summary & Commentary — In summary, the Senate can vote on a motion to dismiss (end the trial) anytime after opening statements by the House Managers and the President’s Attorney’s are completed and the Senate completes up to 16 hours of debate, but before any motions to introduce new evidence or call witnesses are entertained, according to Senate resolution (S. Res. 16) of the “Clinton Rules”. Rumor has it that this is currently a point of contention in the impending Trump trial, where Democrats and possibly one or two GOP Senators (Collins and Romney) want this to be reversed so motions/votes on new evidence and the calling of witnesses can be made/held before any Dismissal motion, so as to preclude ending the trial before considering new evidence and witness testimony. We will have to see how this plays out.
With respect to witnesses, Senate resolution (S. Res. 16) of the “Clinton Rules” would require each witness to be deposed before considering whether said witness should appear before the full Senate in open trial. Such depositions could be conducted by a Committee of Senators appointed by the Presiding Officer (Chief Judge Roberts) as allowed under Standing Rule XI above, or it could be conducted as spelled out by Senate resolution (S. Res. 30) of the “Clinton Rules” where the questioning of each witness is conducted by the House Managers and the President’s lawyers, and presiding over jointly by a Republican and Democratic Senator. In the case of Trump’s trial, both of these Deposition procedures seem messy to me and ripe for numerous contentious disputes that could greatly muddle any testimony. However, what the actual rules/procedures would be in Trump’s trial for such depositions is still up in the air. It could be either are of these two options, neither of them, or some sort of combination of both. Who knows? Again, we will have to wait and see.
In closing, I would like to leave you with one important point.
Remember as things move forward, that it will only take 3 GOP Senators to vote with Democrats to sustain rulings by Chief Justice Roberts with respect to witnesses and other matters, while it will take 4 GOP Senators to vote with their fellow Republicans to overrule rulings by Chief Justice Roberts with respect to witnesses and other matters.
Keep that under your hat.
Well I hope you found this helpful as I tried to present you with the STRAIGHT POOP on the Senate Impeachment Rules and cut through all the media disinformation out there. Tomorrow I will go back to your regular TIC programming to update you all on current Congressional developments, so stay tuned. Also, look for a POSSIBLE Analysis #2 in the future, if I have time.