Trump On Trial

Senate rules are more complicated than you think, and Pelosi still has leverage

David MacMillan
Dec 21, 2019 · 7 min read

The first time a head of state was impeached, in 1649, the governing body was the Rump Parliament and the head of state was King Charles I. The vote in the High Court was 59-9, with 67 abstaining, and the charge was high treason. Three days later, the king was beheaded at Whitehall Palace, still protesting bitterly that Parliament had no authority over the king.

he drafters of our Constitution didn’t particularly like the prospect of chopping off the heads of presidents, so although they gave the House of Representatives the sole power of impeachment, they added a requirement that the Senate concur with at least two thirds of its members before the impeached official would be forced from office. In an apparent nod to the fate of Charles I, they added that the Senate would have no power to execute or even imprison a deposed official, writing:

“Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

As I explained in an earlier article, there have been officials who were removed but not disqualified; the reverse is possible but unlikely.

While the House hotly debated whether to impeach Trump for abuse of power in his dealings with Ukraine and obstruction in his response to Congress’s inquiry, a number of diagrams began circling to explain the steps between impeachment, trial, and potential removal. Many wrongly assumed Trump would be replaced by Pence immediately upon the adoption of Articles of Impeachment; others (particularly House Republicans and conservative pundits) seemed to think the impeachment proceedings would “nullify” the 2016 election, as if Clinton could somehow retroactively become president.

Yet the actual process is more complex. After the House impeached Trump, Speaker Pelosi announced she would wait to send the Articles to the Senate until she received assurances of a fair trial, leaving Trump and his most strident supporters apoplectic.

After the House passed the UMCA and adjourned on Thursday without the Articles being delivered to the Senate, conservative media and pundits were left in a mixture of shock, rage, and wild conspiracy. How was this possible? Why was Pelosi being so mean? Can Pelosi be impeached?

Sunday evening, Senate minority leader Chuck Schumer sent Mitch McConnell a letter proposing witnesses and ground rules for the Senate impeachment trial. In a response Thursday morning, McConnell vowed to bury Schumer’s requests and stated that he would not be an impartial juror. Pelosi replied in a press conference later that day that while the Founders created impeachment as a safeguard against a rogue president, they may not have considered what to do in the case of a rogue president backed by a rogue Senate leader.

Yet holding the Articles of Impeachment may be more than just a means of frustrating Trump. The upcoming process is complex, and together Schumer and Pelosi may yet have leverage.

Under House precedent and current Senate rules, adoption of the Articles of Impeachment is only the beginning. The Senate must begin proceedings immediately upon presentation of the Articles, “at 1 o’clock afternoon of the day (Sunday excepted) following such presentation…proceed to the consideration of such articles, and shall consider in session from day to day (Sundays excepted) after the trial shall commence…until final judgment shall be rendered” (Rule III). However, the House must first pass a resolution appointing a team, called “House managers,” to deliver the Articles to the Senate and serve as prosecutors in the trial. It is this step which Pelosi is now delaying.

Flowchart of possible steps in Senate trial. It’s a lot to take in. Work by author.

Mitch McConnell has promised to protect Trump in the Senate. He can do this most efficiently by proposing a restrictive Rules Resolution that fast-tracks the case to a dismissal vote. He can also do this by using the Rules Resolution to block off certain parts of the process: skipping witnesses and evidence, requiring a committee with a Republican majority, and so forth. He made it clear on Thursday that he would intend to prevent witness testimony:

House Democrats’ rushed and rigged inquiry yielded two articles — two — of impeachment. They are fundamentally unlike any articles that any other House of Representatives has ever passed. The first article concerns the core events which House Democrats claim are impeachable: the timing of aid to Ukraine. But it does not even purport to allege any actual crime. Instead, they have coined the vague phrase “Abuse of Power”.

The case is not compelling, not overwhelming, and as a result not bipartisan. The failure was made clear to everyone when Senator Schumer began searching for ways that the Senate could step out of our proper role and try to fix the House Democrats’ failures for them. The Senate is meant to act as judge and jury, to hear a trial, not to re-run the entire fact finding investigation. It is not the Senate’s job to leap into the breach and search desperately for ways to get to guilty.

Never mind that “Abuse of Power” was literally one of the Articles of Impeachment levied against Clinton. McConnell knows his only control over the process comes in his own ability to propose ground rules. Once the ground rules pass, Justice Roberts takes over, and he can no longer protect the President. His goal, then, is to try to prevent witness testimony.

Unfortunately for McConnell, that’s not what Trump wants.

Trump has made it clear that he wants a showy, publicized Senate trial where he can, in his mind, take revenge on the Democrats who have created a “hoax” impeachment to embarrass and harass him. He wants Adam Schiff and Hunter Biden and the whistleblower to be cross-examined for the world to see. Not only does he think this will vindicate him, but he thinks it will hurt Biden politically: his goal all along. The danger for Trump, however, comes after McConnell is no longer in control.

Rulings by Justice Roberts are subject to a 50% approval vote by the Senators, meaning that a small group of centrist Senators — for example, Democrats Joe Manchin, Doug Jones, and Kyrsten Sinema along with Republicans Mitt Romney, Susan Collins, Lisa Murkowski, and Ben Sasse — can vote as a unit and control the course of the trial. They can vote with Republicans in some areas, like calling the whistleblower as a witness, but then vote with Democrats in other areas, like calling Giuliani and Mulvaney. They could even force the appointment of a bipartisan evidentiary committee.

Because rulings by the Chief Justice are subject to approval by Senators, a small group of centrist Senators can vote as a unit and control the course of the trial.

This is where Pelosi and Schumer still hold the reins. The Speaker of the House can wait as long as she wants to bring the Management Resolution to the floor, leaving Trump perpetually impeached and never acquitted. She can say openly that until McConnell is willing to reach an agreement with Schumer, she will withhold the resolution, robbing McConnell of his opportunity to quietly push through rules for a partisan, rushed trial. The longer she waits, the more angry Trump becomes and the louder he will agitate for a trial with witnesses. If Trump wants witnesses, then Fox News will as well, and McConnell will have no choice but to reach an agreement with Schumer.

It likely won’t be enough for Senators to remove Trump. But it gives a handful of Republicans the chance to do the right thing and expose Trump’s lies and abuses more clearly and openly than ever before.

David MacMillan is a freelance writer, paralegal, and law student in Washington, DC. He writes about science, politics, and culture as he finishes his book about his departure from creationist science denial.

Dialogue & Discourse

News and ideas worthy of discourse.

David MacMillan

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Anyone with really good ideas will always be looking for better ones. Writing about law, fundamentalism, and science denial…book to follow.

Dialogue & Discourse

News and ideas worthy of discourse. Fundamentally informative and intelligently analytical.

David MacMillan

Written by

Anyone with really good ideas will always be looking for better ones. Writing about law, fundamentalism, and science denial…book to follow.

Dialogue & Discourse

News and ideas worthy of discourse. Fundamentally informative and intelligently analytical.

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