BASIC PRINCIPLES FOR A FULL, TRANSPARENT, AND FAIR IMPEACHMENT TRIAL

Article I of the U.S. Constitution grants the House of Representatives the sole power of impeachment, and if the House does impeach, the Senate the “sole power to try all impeachments.” It also provides that the Chief Justice of the U.S. Supreme Court will preside if the trial involves a president. The Constitution authorizes the Senate to “determine the rules of its proceedings,” including additional rules governing an impeachment trial by the Senate. The Senate has established and may modify its own rules supplementing these constitutional requirements.

Four principles for conducting a full, transparent, and fair impeachment trial:

1. Trial procedures should be established before the trial commences. A trial can only be fair if the rules are agreed to in advance. For that reason, any supplemental rules or modifications to the existing rules should be agreed to before the trial commences.
2. The Senate should hear the full case before voting on the President’s removal. The Senate must allow members of the House to present the case for the President’s removal and the President should be afforded an opportunity to respond. Both should occur before a vote to dispose of or approve an article of impeachment.
3. The trial should be open to the public. An impeachment trial of a president is a matter of exceptional importance to the American people. They should be able to understand the case for the President’s removal and the President’s defense. The doors to the Senate chamber should be open and the American people permitted to witness the proceedings to the extent possible. Transparency should only be sacrificed to advance compelling interests such as the sanctity of Senate deliberations, the need to protect legitimately classified information, or the recognition of a whistleblower’s right to anonymity.
4. Each Senator should take seriously his or her oath to “do impartial justice” and to “support and defend the Constitution.” The question is not whether to support the President. The question is whether the President has committed treason, bribery, or other high crimes and misdemeanors within the meaning of the Constitution.

Note 

Pre-Trial

1. The Senate Impeachment Rules require the Senate to hold a trial on articles of impeachment adopted by the House. The Senate trial must commence no later than 1 pm on the day after the articles of impeachment have been presented to the Senate, and the Senate must “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.”

2. The Senate Impeachment Rules require the Senate to consider all articles of impeachment adopted by the House. The Senate Impeachment Rules also provide that “[o]nce voting has commenced on an article of impeachment, 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.” The rules also provide that “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 other matters as may be determined to be appropriate prior to pronouncing judgment.” These other matters would include, for example, whether, in addition to removing the convicted person from office, the person should be barred from holding federal office in the future.

Trial

1. The House of Representatives, having voted on articles of impeachment, appoints impeachment managers to transmit the articles to the Senate. In order to begin consideration of the articles impeaching a president, the current Presiding Officer vacates the chair, officially transferring power as Presiding Officer to the Chief Justice of the Supreme Court. The President can appear personally or can be represented by counsel. The Senate Impeachment Rules provide for opening arguments, the presentation of evidence, and then closing arguments, followed by voting.

2. The Senate Impeachment Rules provide that the trial should be open to the public, except if the Senate decides to close them during deliberations. However, the rules also provide an expedited process for voting to close the doors.

3.The Senate Impeachment Rules provide that the Senate can make any “lawful order[]” that “it may deem essential or conducive to the ends of justice”, including compelling testimony, punishing contempt, and others. The Sergeant at Arms of the Senate is authorized to enforce the orders.

4. The Chief Justice of the United States Supreme Court presides over the trial. In particular, the Presiding Officer is expected to rule on questions of evidence “including, but not limited to, questions of relevancy, materiality, and redundancy.”Because the Chief Justice is acting as the “Presiding Officer” of the Senate in these circumstances, not as a judge or justice in a court of law, his decisions are subject to being overruled by the Senate itself. Only a Senator—not a Manager or a representative of the President—may appeal the decision of a presiding officer.

4. Neither the Senate rules nor precedent lay out clear standards for what evidence is relevant and permissible. While the Senate Impeachment Rules imply that there may be questions of “relevancy, materiality, and redundancy”  regarding evidentiary submissions, there is not a particularly strong case that the Senate should adopt the evidentiary practices of a court of law. An impeachment trial is a unique feature of the U.S. constitutional structure and requires different considerations from a criminal or civil trial. Most critically, the Senate serves as both the judge and the jury: it gets to decide what evidence is in order and how to weigh that evidence when deciding whether a president has committed an impeachable offense, whether to remove him, and whether to disqualify him from future office.

5. The Senate Impeachment Rules do not provide any mechanism for modifying or dismissing an article of impeachment, and in fact they explicitly state that an article may not be divided for purposes of the impeachment vote.

6. The Senate Impeachment Rules provide that during deliberations, “no member shall speak more than once on one question, and for not more than ten minutes on an interlocutory question, and for not more than fifteen minutes on the final question, unless by consent of the Senate, to be had without debate….” The rules clarify that the fifteen minutes each Senator may take is to address the verdict on all the articles. The Senate Impeachment Rules also set a threshold to require a roll call vote to end the deliberations: “a motion to adjourn may be decided without the yeas and nays, unless they be demanded by one-fifth of the members present.” The Senate Impeachment Rules provide that, when voting, the Chief Justice will conduct a roll call vote, reading each article and then calling the name of each Senator, who will vote either guilty or not guilty.

A Senator’s Role and Obligations

1.The Constitution provides that when Senators are sitting in an impeachment trial, “they shall be on Oath or Affirmation.” The Senate Impeachment Rules provide that the Chief Justice and the Senators each must take an oath to “do impartial justice according to the Constitution and laws.” This differs from the oath Senators take before they undertake their legislative duties, in which they promise to “support and defend” the U.S. Constitution and to “bear true faith and allegiance” to it. The separate oath emphasizes the independent role of a Senator in an impeachment trial: the question is not whether to support the President. The question is whether the President has engaged in impeachable conduct that warrants removal from office, and a Senator’s duty is to make that decision in good faith irrespective of party.

2.Whether the Constitution allows the Senate to force a Senator to recuse remains an open question of constitutional interpretation. Because the Senate Impeachment Rules provide that Senators each must take an oath to “do impartial justice according to the Constitution and laws,” an argument has been made that the Senate can force a Senator to recuse if they cannot “do impartial justice.”

3.The Constitution provides that the president (like the vice president and other civil officers) “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The Senate Impeachment Rules provide that the “final question [is] whether the impeachment is sustained,” and “if the person impeached shall be convicted upon any . . .  article by the votes of two-thirds of the Members present, the Senate shall proceed to the consideration of such other matters as may be determined to be appropriate prior to pronouncing judgment.” Each Senator will vote either guilty or not guilty.

5.The question before a Senator is not, therefore, whether the president should or should not be removed from office; the Constitution provides that a president shall be removed if a sufficient number of Senators conclude that he has committed treason, bribery, or other high crimes and misdemeanors within the meaning of the Constitution. Neither the Constitution nor the Senate rules specify how a Senator should determine whether the President has committed an impeachable offense.