The impeachment of Donald John Trump by the House of Representatives is all but inevitable. The House is slated to hold a formal vote on Thursday to authorize the impeachment inquiry, and in the coming weeks, it is expected to shift from closed-door investigatory sessions to public hearings designed to reveal the “high crimes and misdemeanors” committed by our 45th commander in chief.
If expectations hold, the public hearings will be followed by the introduction of formal articles of impeachment. The only unresolved questions at that point will be the number and scope of the impeachment articles, and the margins by which they will be adopted when the full chamber votes on them.
The case will then shift to the Senate for what promises to be an event of epochal political gravity. Given the Republicans’ shameful embrace of Trump as their party leader, it remains unlikely that the Senate will convict the president on any articles of impeachment, no matter how egregious they are. Nonetheless, the Constitution requires the Senate to conduct an impeachment trial, and how the Senate fulfills that responsibility could be as important to the future of American democracy as the result itself
Unfortunately, the Constitution provides little in the way of specific procedural guidance. Article I, Section 3, which addresses the Senate’s role in impeachment, states only that:
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
“Judgment 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; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The uncertainty surrounding Trump’s impending Senate trial is compounded by the fact there have been only two presidential impeachment trials in our history—those involving Andrew Johnson in 1868 and Bill Clinton in 1998-99. Separated by 130 years, the two trials offer distinctly different models for the current Senate to emulate, modify or reject.
The House passed 11 articles of impeachment by overwhelming margins against Johnson, a Democrat reviled for his opposition to Republican-led Reconstruction and the 14th Amendment, based largely on his firing Abraham Lincoln’s last secretary of war, Edwin Stanton. His impeachment trial was conducted before the full Senate, which then consisted of 54 members. The trial lasted 11 weeks and featured live testimony from 25 prosecution and 16 defense witnesses. Among other determinations, the Senate voted 35-19 to affirm three articles, falling one vote shy of the required two-thirds majority for conviction.
Clinton, by contrast, was cited in just two articles for lying under oath and obstruction of justice about his relationship with White House intern Monica Lewinsky. For Clinton, the task of gathering evidence was farmed out to a subcommittee, which took the depositions of key witnesses, including Lewinsky. The depositions were videotaped and transcribed, and later presented to the entire Senate. Clinton, too, was acquitted, by a tally of 45-55 on the article of perjury, and 50-50 on obstruction.
Richard Nixon, the third president to face a serious House impeachment investigation, never had a Senate trial. He resigned before the full House voted on three articles of impeachment passed by that body’s judiciary committee.
So how will Senate Majority Leader Mitch McConnell and his 52 Republican colleagues approach Trump’s impeachment? On Oct. 16, McConnell announced that the GOP would “do our constitutional duty.” McConnell reportedly told his party’s caucus to prepare for a trial that could last from six to eight weeks.
McConnell, however, is a master of parliamentary evasion and obfuscation. The last thing he wants is to stage a full, public evidentiary airing of Trump’s malfeasance.
Thankfully, there are limitations to McConnell’s resourcefulness. No matter how he bobs and weaves, McConnell will be bound by the Senate’s internal rules on impeachment, which were last amended in 1986. Unless McConnell can muster 60 filibuster-proof votes to amend the rules, he’s stuck with them, and will have to work within them to shield and protect the president.
Under the rules, once the House selects its team of “managers” (whose duty will be to prosecute the case against the president) and delivers the articles of impeachment, the Senate will issue a summons to Trump, informing him of the due date for his answer to the articles. Trump will then have the choice of appearing before the Senate in person to submit his answer or doing so through retained counsel. It seems a foregone conclusion he will opt for the latter, but like a common defendant in a criminal trial, he has the right to plead guilty or not guilty to the articles.
In addition, and perhaps more significantly, Trump will have another alternative that some commentators suggest he could deploy with the backing of McConnell, lodging what is called a “demurrer” to the articles of impeachment. This would allow him to claim that the charges against him do not rise to the level of impeachable offenses, even if they are true. Should a majority of the Senate vote to grant Trump’s demurrer, the impeachment proceedings would be stopped in their tracks, ending before a single witness is examined or a solitary document introduced.
At first glance, the demurrer avenue appears to offer Trump a get-out-of-impeachment-free card. For a variety of reasons, it won’t.
The first reason has to do with Chief Justice John Roberts. Under both the Constitution and the Senate’s rules, Roberts will preside over the impeachment trial. It will be his job to rule on questions of evidence and procedure, including any demurrer.
Roberts is a life-long Republican, but as I and many other legal observers have noted, he is also an institutionalist concerned with preserving judicial independence, a subject about which he has openly feuded with Trump. If the articles of impeachment brought against Trump are well pleaded and backed up by credible allegations of misconduct—whether regarding the Ukraine scandal, financial self-dealing, or obstruction of justice—Roberts is unlikely to grant a Trump demurrer. He will insist instead that evidence be taken and heard. And while the Senate’s rules empower a majority to overturn any ruling made by Roberts, it is not at all clear that a majority would dare to challenge the chief justice, especially before the presentation of evidence.
Granting a demurrer would also trigger substantial political risks for the GOP in the 2020 elections, opening Republican candidates to charges of covering up Trump’s crimes and conniving to hide the truth from the American people. No one wants to be accused of violating the Constitution, but especially such vulnerable senators as Susan Collins of Maine, Mitt Romney of Utah, Corey Gardner of Colorado, Lisa Murkowski of Alaska, Thom Tillis and Richard Burr of North Carolina, or Martha McSally of Arizona.
In all likelihood, McConnell and the GOP will grudgingly allow the evidence to be heard, albeit channeled through a sub-committee, adhering to the Clinton template. The Republicans thereafter may vote to dismiss the case against Trump. Alternatively, they may allow roll-call guilty or not guilty votes to be taken on the merits of each article of impeachment.
Whatever procedural path the GOP follows, each senator will have to follow his or her conscience. No specific standard of proof—either the beyond-a-reasonable-doubt test that applies in criminal cases or the preponderance-of-evidence test that applies in civil litigation—will govern the balloting. Each senator will vote independently and will thus be held independently accountable.
No matter the ultimate outcome, the American people will have the opportunity to assess the evidence against Trump. That in and of itself will be a victory worth celebrating.