Explainer: The difference between impeachment in the Senate and a criminal trial

Senate Majority Leader Mitch McConnell, R-Ky., joined from left by Sen. John Barrasso, R-Wyo., Majority Whip John Thune, R-S.D., and Sen. Joni Ernst, R-Iowa, meets with reporters as the House prepares to send the articles of impeachment against President Donald Trump to the Senate, at the Capitol in Washington, Tuesday, Jan. 14, 2020. (AP Photo/J. Scott Applewhite)

In recent weeks, public attention has been captivated by the historically unique and politically fraught process of impeachment. Established in two separate clauses of the U.S. Constitution, impeachment is a system devised to hold public officials accountable for certain actions, specifically bribery, treason, and high crimes and misdemeanors. Realizing the potential for political motivations to influence an impeachment process, the country’s founders divided responsibility for the proceedings between the two houses of Congress. The House of Representatives is meant to serve as the charging body, or the half of Congress that investigates potential wrongdoing and recommends charges against specific federal officers; and the Senate serves as both the jury and the finders of fact in determining if the federal officer is guilty of the charges brought by the House. Individuals convicted by the Senate will be removed from office and potentially barred from holding office in the future. (For more on impeachment, check out America’s explainer here.)

A Recap

After weeks of speculation and public conjecture, the Democratic-controlled House of Representatives launched an impeachment inquiry concerning President Trump in September 2019. After a month of preparation, the House Intelligence Committee, chaired by Representative Adam Schiff, held hearings throughout November, calling witnesses from the Foreign Service and the National Security Council as well as experts on European and Ukrainian affairs.

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Realizing the potential for political motivations to influence an impeachment process, the country’s founders divided responsibility for the proceedings between the two houses of Congress.

On Dec. 3, the House Intelligence Committee voted 13 to 9 to submit a report of its findings to the House Judiciary Committee. The report asserts that “President Trump, personally and acting through agents within and outside of the U.S. government, solicited the interference of a foreign government, Ukraine, to benefit his reelection.” The Republican members of the committee issued a separate report stating that the findings of the adopted report do not accurately reflect the facts used to support the recommendation of impeachment.

The House Judiciary Committee, chaired by Representative Jerrold Nadler, began its own hearings on Dec. 4 and on Dec. 10 announced that it would levy two articles of impeachment in H.Res.755, specifically for abuse of power and obstruction of Congress. After days of debate, the committee voted 23 to 17 along partisan lines to recommend the articles of impeachment for a full vote in the House of Representatives.

On Dec. 18, the final vote was taken on the articles of impeachment: 230 in favor, 197 against and one vote of “present.” With the simple majority requirement met and despite some legal theorists arguing over technicalities, Mr. Trump became the third president and 20th federal official to be impeached by the House of Representatives since 1789.

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Both Senator McConnell and Senator Lindsey Graham have noted how they would vote already, in direct contradiction to the oath they must swear at the beginning of the trial to be impartial jurors.

On Jan. 14, almost a month after the House voted to impeach, House Speaker Nancy Pelosi told Democrats in a closed-door meeting that the House will vote on Jan. 15 to send the articles of impeachment to the Senate. On Jan. 15, with a vote pending before the House, Ms. Pelosi announced the seven House Managers who, after the vote on the articles of impeachment, will be responsible for bringing them formally to the Senate to be received. The speaker previously noted that she would not commit to a timeframe for transmitting the articles to the Senate until greater assurances were given by Senator Mitch McConnell, the Republican majority leader, about the type of trial that will be conducted.

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Ms. Pelosi’s concern is not without reason, as both Senator McConnell and Senator Lindsey Graham have noted how they would vote already, in direct contradiction to the oath they must swear at the beginning of the trial to be impartial jurors. Senator McConnell has also stated publicly that he is coordinating closely with the White House’s counsel. While it is not unusual for members of Congress to be in contact with the White House during impeachment proceedings, this may be the first public admission of direct co-ordination during an impeachment trial.

Not Your Father’s Trial

When Americans conjure up the image of a trial, many will undoubtedly draw on cultural mainstays like “Law & Order,” “To Kill a Mockingbird” and “My Cousin Vinny”: prosecution and defense attorneys arranged before a judge seated aloft and a jury of peers awaiting the evidence against the accused as argued by the attorneys. A trial by the U.S. Senate in the case of impeachment looks similar in many ways. Evidence is presented, there is a prosecution and a defense, witnesses may be called, and there is a presiding officer.

Despite the conceptual similarities, a Senate trial, formally referred to as a Court of Impeachment, is fundamentally different from a standard trial. For one, it is not a trial that is legal in nature. That is to say, it is not a criminal proceeding but a constitutional one reserved to the legislative branch of the federal government. An individual who is facing impeachment is not facing prison or financial penalties as a result of the proceeding itself but rather removal from office and a potential ban from future office-holding.

Despite the conceptual similarities, a Senate trial, formally referred to as a Court of Impeachment, is fundamentally different from a standard trial.

This distinction has led to confusion in the past. In a 1978 oral history of the Senate, Floyd Riddick, the Senate parliamentarian from 1964 to 1974, who oversaw the preparation of the rules and procedures for the possible impeachment trial of Richard M. Nixon, noted the confusion between court procedure and impeachment procedures. “While it was the Senate sitting as an impeachment court,” noted Mr. Riddick, “I suggested that it was not a criminal trial, because you do not convict a person of a crime.... changing the word ‘court’ to ‘Senate’ I made that recommendation.”

The use of legal language to describe impeachment, on both sides of the aisle and from the legislative and executive branches, muddles the image further. One example is the overt use of the phrase “due process,” a legal doctrine that, in essence, asserts that the rights of the individual are to be respected throughout legal proceedings. This exact concept does not apply in an impeachment hearing because it is outside of a legal proceeding and outside of the criminal justice system.

Further confusion has been caused by allusions equating the Democratic representatives in the House with prosecutors, leading to the belief that whatever materials are contained in the articles of impeachment are meant to be treated as items brought forth in a criminal indictment. This idea has underpinned the argument made by numerous Republican senators that the Senate rules should be modified to dismiss the articles of impeachment if they are not presented within a certain period of time—as one would if prosecutors did not bring forward charges from a grand jury. This rule change is highly unlikely, as the Senate requires 67 senators to vote in favor of a change to the rules, in essence requiring bipartisan support.

When Americans conjure up the image of a trial, many will undoubtedly draw on cultural mainstays like “Law & Order,” “To Kill A Mockingbird” and “My Cousin Vinny.”

A final distinction between the typical criminal trial and a Senate trial is that, while a criminal trial may be appealed through a variety of court systems, there is no such recourse in the case of an impeachment. In the famous case Nixon v. U.S. (not to be confused with the infamous U.S. v. Nixon case regarding the Watergate Affair), the Supreme Court determined that impeachments and the processes used by the respective chambers of Congress are not reviewable by the court because matters of impeachment are exclusively reserved to the legislative branch of the federal government.

What Does a Senate Trial Look Like?

The rules that govern a Senate trial are found in the succinct document “Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials.” At a mere seven pages, of which two-and-a-half are specific oaths and wording for documents to compel witnesses and evidence, the rules are heavy on pomp and circumstance and light on rules of evidentiary procedure (what is and what is not allowed to be admitted).

It all begins when the House of Representatives passes articles of impeachment. The House then must appoint “managers,” representatives who will present the evidence before the Senate in favor of convicting the impeached official. Rule I notes that once the House passes the articles and appoints the managers, “the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment.” The managers of the impeachment will then be introduced at the bar of the Senate and will signal that they are prepared to present the articles of impeachment, the sergeant-at-arms will proclaim silence, and the Senate will then take the impeachment in proper order. Senators present will then be sworn in by the presiding officer.

At a mere seven pages, the rules are heavy on pomp and circumstance and light on rules of evidentiary procedure.

Because this is the impeachment trial of the president of the United States, the chief justice of the Supreme Court becomes the presiding officer of the Senate, a position usually held by the vice president. Chief Justice John G. Roberts Jr., therefore, “shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached therein.” There is some question as to how much of a role the chief justice may play as the presiding officer. Chief Justice William H. Rehnquist, in the case of the impeachment of President Bill Clinton, was a fairly sedate participant who stuck closely to the rules of the Senate. Chief Justice Salmon P. Chase, in the impeachment trial of President Andrew Johnson, played a more active role and cast two tie-breaking procedural votes when the Senate came to gridlock.

The chief justice is authorized in Rule V to “make and issue...all orders, mandates, writs, and precepts authorized by these rules or by the Senate.” But this can become complicated, as the rules are written to be deferential to the voice of the Senate. Rule VII explicitly notes that “the Presiding Officer on the trial may rule on all questions of evidence...which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask a formal vote to be taken thereon, in which case it shall be submitted to the Senate for decision without debate.” The chief justice may also just submit a question to a vote of the members prior to his ruling. In the event of a vote taking place, the standard rules of the Senate apply, requiring a simple majority of 51 votes for a motion to pass.

Once the articles of impeachment are provided, a writ of summons is issued to the impeached official, which notifies him or her of the date, time and location he or she is to appear before the Senate. On the day set by the Senate for the trial, Rule X orders, “The person impeached shall then be called to appear and answer the articles of impeachment before him.” The impeached official may represent his or her self or be represented by an agent or attorney in these proceedings.

Regardless of how the Court of Impeachment concludes, it will once again be a defining moment for the history of our republic.

Once the date, time and location are set and the impeached official notified, the presiding officer, at the appointed time, will proclaim the commencement of the trial in the Senate and the counsel for the parties will be admitted. Everything about the trial is meant to create an air of sobriety and order. As such, senators and counsel are not permitted by the rules to openly object or make motions. Rule XVI specifically notes that “all motions, objections, requests, or applications.... [m]ade by the parties or their counsel shall be addressed to the Presiding Officer only, and if he, or any senator, shall require it, they shall be committed to writing.” Witnesses will be questioned by one person from each represented party—i.e., the impeached and the managers. Senators are required to write down all questions, motions and orders and submit them to the presiding officer.

 

The doors of the Senate are explicitly noted to be kept open unless the Senate wishes them closed during deliberations, which would be settled by vote. The trial is opened by statements from one person from each side, and the final arguments may be made by two people from each side. The managers from the House of Representatives are given the first opening argument and the last closing argument.

Once all of the arguments are made, the presiding officer will call for a vote on the articles of impeachment. Each article of impeachment shall be voted on separately, and once voting begins, Rule XXIII orders that “voting shall be continued until voting has been completed on all articles of impeachment unless the Senate adjourns for a period not to exceed one day or adjourns sine die.” This means that it would adjourn on the matter for an undetermined period of time, usually signaling an end to business and what would effectively prove to be a dismissal of the charges. Rule XXIV notes that a motion to adjourn may be decided without the requisite 51 yeas or nays, unless they are demanded by one-fifth of the members present.

The yeas and nays shall be taken on each article, and “if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of the Members present, a judgment of acquittal shall be entered; but if the person impeached shall be convicted upon any such article by the votes of two-thirds of the Members present, the Senate shall proceed to the consideration of such matters as may be determined to be appropriate prior to announcing judgment.” Once judgment is pronounced, any motions to reconsider or reject the impeachment vote shall not be considered. The matter is considered closed.

Regardless of how the Court of Impeachment concludes, it will once again be a defining moment for the history of our republic. The information gathered, the lessons learned and the characters assessed will not soon be forgotten.

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