mcconnell

Procedural Aspects of the Trump Impeachment

Matthew Glassman | Georgetown University

The impeachment trial of President Donald Trump concluded in the late afternoon of February 5, when the Senate voted 47-53 on the second Article of Impeachment against the president (H.Res. 755), well short of the Constitution’s two-thirds requirement for removal from office.

This voted ended, procedurally, a Senate impeachment trial that had begun three weeks earlier, on January 15, when the Senate adopted a unanimous consent request propounded by majority leader McConnell, setting the time for receiving the House impeachment managers (noon on January 16), the time to proceed to consideration of the Articles of Impeachment (2pm on January 16), and a series of regulations governing access to the Senate during the trial.

Just prior to these Senate actions, the House had agreed to H.Res.798, which appointed managers for the impeachment trial. This was the last formal action taken by the House chamber in the impeachment process, which had procedurally begun on October 31, 2019, when the House agreed to H.Res.660, which directed certain committees to continue investigations into whether sufficient grounds for impeachment existed.

This formalized both a set of investigations that had been taking place for much of the first session of the 116thCongress and an announcement by Speaker Pelosi on September 24th that the House was “moving forward with an official impeachment inquiry.”1

The House impeachment, Senate trial, and ultimate Senate acquittal of President Trump were shaped procedurally by two unique political dynamics. This was the first presidential impeachment that occurred during divided control of Congress. The Democrats control the House of Representatives, 232-197. The Republicans control the Senate, 53-47. The second unique political dynamic is that President Trump is a candidate for reelection, and will almost certainly be the Republican nominee.

In both the 1868 Johnson impeachment and the 1998 Clinton impeachment, the opposition was in control of both chambers. Likewise, the impeachment investigations of President Nixon in 1973 and 1974 were conducted under unified Democratic control of Congress.

Similarly, President Clinton in 1998 and President Nixon in 1974 were both in their second term in office, in the post-22nd amendment era, and thus constitutionally barred from seeking reelection. President Johnson was eligible for reelection in 1868, but he had ascended to the presidency only after being placed on the ticket of a unity party that no longer existed, and there was virtually no chance he was going to be nominated by either major party.

These two dynamics—Republican control of the Senate and President Trump seeking reelection in the Fall—dramatically shaped the House impeachment and Senate trial of President Trump.

Impeachment Procedures, Chamber Control, and Reelection

Under the Constitution, the House has the “sole Power of Impeachment.” Likewise, the Senate has the “sole Power to try all Impeachments.” This means that each chamber has the unilateral formal authority to procedurally structure their formal portion of the impeachment process, either in general or for any individual instance of impeachment. And the courts are unlikely to second-guess any procedural choices made by the chambers.2

Therefore, any procedural or strategic coordination between the chambers would reflect a common motivation, not a constitutional requirement. The Senate cannot formally compel the House to exercise its power of impeachment, nor can the House formally structure the Senate trial procedures. Consequently, divided partisan control of Congress has significant implications for the procedural structure of a presidential impeachment, both in theory and practice.

First, a chamber could outright refuse to participate in the process. Indeed, as a practical matter, it seems unlikely that a House controlled by the party of the president would agree to Articles of Impeachment. While the majority in the House cannot use its agenda-setting powers to prevent impeachment resolutions from reaching the floor, in many circumstances a president would probably preemptively resign if his own party was providing the significant balance of votes to impeach her.3

In practice, the more likely structural scenario is the one that occurred in the Trump impeachment. The opposition party controls the House and agrees to Articles of Impeachment, which are then delivered to the Senate to be considered (or not) by a chamber controlled by the president’s party.

In this scenario, the agenda-setting power of the Senate allows for a range of responses to the House action. While there is some scholarly debate about whether the Senate could literally refuse to consider a House-passed impeachment, there is wide agreement that the Senate could simply dispose of the matter with a single motion and no debate.4

Second, short of outright refusal to participate in the impeachment process, a chamber aligned with the president has wide latitude to shape the procedures for the trial in ways beneficial to the party or to the president. This might consist of simply minimizing the length of the trial or otherwise restricting the ability of the House managers to competently present their full case.

Senate Watergate Committee

U.S. Senate Watergate Committee hearing, 1973. From left to right: minority counsel Fred Thompson, ranking member Howard Baker, and chair Sam Ervin.
Source: Sam Ervin Library, public domain.

But it could also involve shaping the trial in expansive ways. Indeed, this was a fear of some Democrats during the House impeachment investigations of the past year; that the Senate Republicans would use their procedural control of the chamber to conduct a show trial, focused on alleged wrongdoing by Democratic loyalists at DOJ rather than the president.

Third, even before a formal impeachment process begins in the House, both chambers have the authority to conduct investigations and oversight of the executive branch, including investigations into impeachable conduct by the president. Indeed, during Watergate, much of the investigation was driven by the Senate Select Committee on Presidential Campaign Activities (often referred to as the Senate Watergate Committee).

When one of the chambers is controlled by the party of the president, the agenda-setting power can be used to block the creation of such select committees or to limit the nature of oversight investigations in the standing committees. Indeed, the chamber may instead use the committee system and oversight power to conduct investigations or hold hearings that promote an anti-impeachment case.

Finally, divided control of Congress in an impeachment creates a situation in which all of these procedural decisions might be made in coordination between the White House and the chamber controlled by the president’s party.5While each chamber has the sole power within their sphere of control during an impeachment, there are no restrictions on who may provide them advice or who they may coordinate their activities with.

Indeed, the Trump White House was perhaps more keen than previous administration to shape the impeachment procedures, because there was electorally more at stake for them.

As with the Clinton impeachment, by the time the House agreed to the formal Articles of Impeachment, there was almost no reason to believe the president would be removed from office. No House Republicans voted in favor of the impeachment resolution, and only a handful of GOP Senators appeared to be even possible votes for removal. All signs pointed to less than a majority for conviction, well short of the 2/3 vote necessary for removal.

Consequently, the nature of the politics surrounding the trial ceased to be about gathering (or preventing the gathering) of support for (or against) removal, and instead about the public understanding of the impeachment and the trial in the context of the 2020 election.  The final vote in the Senate to convict or acquit would be a single roll call vote and a black or white outcome; how the trial comes to be understood in the context of the election would be an entirely different question, one that could range strongly in favor of the president or strongly against him.6

Of course, this is true in all impeachment trial, which are inherently political events controlled by political actors who have an eye on future political possibilities. The opportunity to shape the events of the impeachment in a way that benefits the future political possibilities of an individual, or a party, or an interest is a strong incentive for action.

But the stakes are heightened in a scenario where the president himself is up for reelection. As the fulcrum of the political system, especially in an age of nationalized and polarized parties, the electoral fortunes of an incumbent president are overwhelming for her party. And thus the motivations to procedurally shape the impeachment are at a maximum, for both the president and the party.

One immediate upshot of Trump being on the 2020 ballot was that Senate Republicans had more difficulty getting to what was probably the (otherwise) easiest and most sensible political positions they could take on his actions: that the president had done something wrong, but it didn’t rise to the level of an impeachable offense. Indeed, this is the position taken by most congressional Democrats by Fall 1998 with President Clinton.7

Ultimately, some Senate Republicans came around to this public position by the end of the Trump impeachment trial.8 But most did not. It is easy to see how electoral calculations led to this problem. Trump himself, unlike Clinton, refused to acknowledge that he had done anything wrong during the trial and refused to apologize afterwards, perhaps out of concerns about the electoral implications of admitting political wrongdoing while running for reelection.9

This put a double-burden on Senate Republicans. They too would prefer not to be in the position of publicly asserting wrongdoing by their presidential candidate, and also would prefer not to be directly contradicting the president’s stated position on the wrongdoing.

The remainder of this article discusses three aspects of the Trump impeachment trial that illuminate the procedural consequences of these political dynamics.

Timing of the trial and adoption of rules

The first notable procedural issue was the timing of the delivery of the House-passed Articles of Impeachment and the creation of supplementary Senate rules for the trial. The House agreed to Article I and Article II of the Articles of Impeachment (H.Res.755) on December 18. Under the permanent Senate Rules of Procedure and Practice In the Senate When Sitting on Impeachment Trials, an impeachment trial is not triggered in the Senate until the Senate receives notice from the House that managers are appointed.

Speaker Pelosi then delayed the appointing of House impeachment managers until January 15.1010 The purpose of the delay was both procedural and political. Pelosi was seeking to negotiate with the Senate over the rules for the impeachment trial, with the hopes that delaying the appointing of the managers would result in a unanimous consent agreement in the Senate that reflected a compromise between McConnell and minority leader Schumer over supplementary trial rules.

Pelosi may have also been trying to buy time such that new revelations regarding presidential misconduct could make their way into the public sphere.

Representative Adam Schiff

Rep. Adam Schiff of California, lead impeachment manager, making remarks during the Senate impeachment trial, January 24, 2020.
Source: C-SPAN, public domain.

The shaping of supplementary Senate rules for an impeachment trial is important because the existing standing rules do not provide detailed guidance for the timing, duration, or sequence of events during the trial, but crucially do provide that motions made once the trial commences will have limited debate.

This means that, once the trial begins, procedures can be set by the majority. Prior to the beginning of the trial, a resolution providing for supplementary rules would allow for unlimited debate, and thus would be subject to a filibuster and require a supermajority to move forward.

Pelosi’s gambit also reflected concerns that the Republican Senate would adopt rules by simple majority that allowed for the trial to end without a final vote, perhaps through the adoption of procedures that allowed for a motion to dismiss, which could then be moved as early as the very beginning of the trial, perhaps even prior to the presentations of the managers and the president’s counsel.

Prior to the start of the trial, the only way for the Senate to completely dispose of it would be to alter the standing Impeachment  trial rules, which would have either required a supermajority to overcome a filibuster, or the use of the nuclear option on legislative business, a prospect which likely did not have majority support in the Senate.

These concerns were not borne out—a motion to dismiss was not included in the supplementary rules for the trial—but neither was Pelosi’s gambit a success. Majority leader McConnell refused to engage with Pelosi over the rules, public support for Pelosi’s position failed to materialize, and by mid-January Democratic Senators were voicing their support for Pelosi to hold the appointment vote and deliver the notification.1111

Pelosi may have gained some political ground during the standoff. Several news reports came out during the interim period that may have adversely affected the president’s public standing, but none were damaging enough to significantly move public opinion about the trial. In one final nod toward electoral politics, the House delayed the actual vote on appointing managers until January 15, allowing Senate Democrats running for President to attend an Iowa debate on the 14th without having it conflict with an ongoing trial.1212

Structuring the Senate Trial Under Supplementary Rules

After the Senate received the House managers on January 16 under the terms of the unanimous consent agreement from January 15, the Chief Justice swore in the Senators, the White House was formally notified, deadlines were set for briefs and rebuttals, and the Senate adjourned until Tuesday January 21st, when the trail began in earnest.

Senate Majority Leader Mitch McConnell

Senate Republican Leader Mitch McConnell making remarks during the Senate impeachment trial, January 24, 2020.
Source: C-SPAN, public domain.

The first order of business was a supplementary rules resolution proposed by majority leader McConnell (S.Res.483). It notably did not include a motion to dismiss the trail, but it did preclude the subpoena of any documents or witnesses prior to a vote on whether it shall be in order to consider and debate any  motion to subpoena witnesses or documents.

In effect, McConnell was proposing supplementary rules that would have the likely effect of reducing the trial to 24 hours of argument by both the House managers and the presidents’ counsel, followed by 16 hours of questions from Senators, followed by a final vote.

This position conformed to a GOP and White House political strategy of minimizing the new information that would be incorporated into the trial and put on the official record. By limiting the role of witnesses, the GOP could better control the public understanding of the trial; instead of a substantive debate over the information provided by new witnesses, they could fight on the safer ground of a procedural debate over the length and shape of the trial.

Democrats, seeking to expand the substantive conflict in the public sphere in hopes of further damaging the president’s public standing, sought to amend the supplementary rules to specifically allow for the subpoena of witnesses and documents. A total of 11 amendments were offered by minority leader Schumer, ten of them either specifically directing the issuing of subpoenas, or altering the rules related to the issuing of subpoenas.

On all ten of the subpoena-related amendments, a motion to table the amendment was passed on a party-line roll call vote. This provided the GOP with an early (but not total) victory on the question of witnesses, and a series of test votes that provided a strong signal the party would stick together on procedural issues to shape the trial in their own best interests. The supplementary rules were then agreed to, 53-47, on a straight party-line vote.

It was not a total victory. The adopted supplementary rules still provided for a future vote on whether to have witnesses. McConnell was also forced to concede more days for the making of the House managers presentation, and to allow the House impeachment inquiry to be entered into the record by default.

Neither of these involved public defeats on the floor; both were negotiated and adjusted prior to the calling up of the supplementary rules resolution, saving the party the embarrassment of defections on floor votes, and preserving the public appearance of GOP unity on the supplementary rules package.

Notably, the much-discussed motion to dismiss was not provided for in the supplementary rules. This almost certainly reflected GOP strategy about the trial. Two possibilities exist. First, Republican Senators may have preferred to not dismiss the trial, believing either that an acquittal would make for better politics, or that a dismissal could provoke a negative public reaction.

Second, they may not have had the votes. If four GOP Senators did not want to dismiss the trial, then a motion to dismiss could have caused significant embarrassment on the floor when it failed. Even if it could pass, dissent from a few GOP Senators could have triggered a negative public reaction. In any case, the lack of a motion to dismiss reflected a conscious strategic decision on the party of the GOP to not include it.

Concluding the Trial Under a Unanimous Consent Agreement

The trial then proceeded under the supplementary rules, with the House managers and the president’s counsel presenting their respective cases, followed by a 16 hour period in which Senators asked questions of the two teams.

At the end of the question period, the rules provided for four hours of debate on the question of whether to have witnesses, which was then rejected on a 49-51 vote, with Republican Senators Romney and Collins defecting.

Following the vote against witnesses, the Senate recessed by unanimous consent, at which time McConnell and Schumer negotiated a unanimous consent agreement for the consideration of further supplementary rules that would complete the trial without having to revert to the standing impeachment rules.

Under the agreement, McConnell would propose a new supplementary rules package (S.Res.488), and by unanimous consent Schumer would be allowed to move four amendments, which McConnell would then be allowed to move to table.

After the agreement was propounded on the Senate floor, the trial was all but over. Each Schumer amendment would have provided for the subpoena of John Bolton (or John Bolton and other witnesses), and each amendment was quickly tabled on party line votes, with two GOP defectors on two of the amendments. The new supplementary rules were then agreed to on a party-line vote, providing four more hours of final arguments, and then a final vote on the articles of impeachment.

The agreement between Schumer and McConnell reflected the reality that the trial had not moved public opinion significantly against the president, and that Republican Senators had signaled that they were unified in their desire to hold a short trial with no witnesses.

Accepting this reality, Schumer bargained for as much as he might have hoped to get—some additional roll call votes that might put the heat on a few swing-state GOP Senators and focus public attention on the lack of witnesses.

Conclusion

The structure of the impeachment trial of President Trump was strongly influenced two unique political dynamics, Republican control of the Senate and the overwhelming likelihood that Trump would be the GOP nominee for president in the fall.

These dynamics allowed the White House and GOP Senators to procedurally shape the impeachment trial to their own liking, and for those procedures to reflect their preference for a trial that did not include witnesses, and that was mostly largely on procedural disputes, rather than substantive ones.

Whatever the motivations of the actors, the procedural structure of this trial will influence future presidential impeachments. As only the third presidential impeachment trial in American history, its peculiar dynamics have created a body of decisions and strategies that may become informal precedents for the Senate.

In particular, the avoidance of the Senate standing rules on impeachment is notable. Through the use of supplementary rules, the Senate essentially set aside the existing order of business for the entire trial, and left virtually no uncontrolled floor time available for Senators to make procedural motions. This reflects the modern trends toward both tight leadership control of the floor and individual Senators working through the party leadership rather than leveraging their positions directly in the chamber.



Notes

 

  1. Andrew Prokop, “Did Democrats Already Start an Impeachment Inquiry? It’s Complicated,” Vox, August 22, 2019, https://www.vox.com/2019/8/22/20827173/impeachment-inquiry-trump-nadler-democrats; and Nicholas Fandos, “Nancy Pelosi Announces Formal Impeachment Inquiry of Trump,” New York Times, September 24, 2019, https://www.nytimes.com/2019/09/24/us/politics/democrats-impeachment-trump.html.
  2. Nixon v. United States, 506 U.S. 224 (1993).
  3. Matt Glassman, “House Procedure, Agenda Setting, and Impeachment,” Yale Journal on Regulation, March 23, 2018, https://www.yalejreg.com/nc/house-procedure-agenda-setting-and-impeachment/.
  4. Bob Bauer, “Can the Senate Decline to Try an Impeachment Case?,” Lawfare, January 21, 2019, https://www.lawfareblog.com/can-senate-decline-try-impeachment-case.
  5. Griff Witte, “A Pact With Trump on Impeachment? McConnell’s Kentucky Backers Demand It,” Washington Post, January 12, 2020, https://www.washingtonpost.com/national/a-pact-with-trump-on-impeachment-mcconnells-kentucky-backers-demand-it/2020/01/12/c775ac20-33e5-11ea-898f-eb846b7e9feb_story.html.
  6. Matt Glassman, “What Have We Learned From the Impeachment Trial So Far?,” Washington Post, January 28, 2020, https://www.washingtonpost.com/politics/2020/01/28/what-have-we-learned-impeachment-trial-so-far/.
  7. Eric Schmitt, “Many Democrats Concur With Rebuke to Clinton,” New York Times, September 5, 1998, https://www.nytimes.com/1998/09/05/us/many-democrats-concur-with-rebuke-to-clinton.html.
  8. Emily Cochrane, “Republicans’ Emerging Defense: Trump’s Actions Were Bad, but Not Impeachable,” New York Times, February 2, 2020, https://www.nytimes.com/2020/02/02/us/politics/trump-impeachment-republicans.html.
  9. “Clinton Says Again He’s Sorry,” CNN, December 11, 1998, https://www.cnn.com/ALLPOLITICS/stories/1998/12/11/impeachment.vote/; John Haltiwanger, “Trump Tweets in All Caps That He ‘JUST GOT IMPEACHED FOR MAKING A PERFECT PHONE CALL!’,” Business Insider, January 16, 2020, https://www.businessinsider.com/trump-tweets-was-impeached-for-making-a-perfect-phone-call-2020-1; and Dana Farrington and Brian Naylor, “ ‘I Did Nothing Wrong’: Trump Defiant After Senate Acquittal,” NPR, February 6, 2020, https://www.npr.org/2020/02/06/803209922/trump-set-to-give-victory-speech-after-acquittal-by-the-senate.
  10. Heather Caygle and John Bresnahan, “Pelosi Ends Standoff With Senate Republicans Over Impeachment Articles,” Politico, January 10, 2020, https://www.politico.com/news/2020/01/10/pelosi-to-send-impeachment-articles-to-senate-after-weeks-long-delay-097185.
  11. Daniel Flatley, Erik Wasson, and Steven T. Dennis. “Pelosi, McConnell Dig In on Standoff Over Impeachment Trial,” Bloomberg, December 19, 2019, https://www.bloomberg.com/news/articles/2019-12-19/mcconnell-trump-blast-pelosi-over-possible-impeachment-delay.
  12. Caygle and Bresnahan, “Pelosi Ends Standoff With Senate Republicans Over Impeachment Articles.”

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