- Thanks go Indochino for
keeping LegalEagle in the air
and helping me look fly.
(eagle screeching)
Donald J. Trump is the third president
in history to be impeached.
That means we are on to the final stage,
an impeachment trial before the Senate.
So what's going to happen
and what are the rules, if any?
(uplifting patriotic music)
Hey LegalEagles, it's time
to think like a lawyer,
because the president is going to trial,
and he's going to need some good lawyers.
While the Constitution
contemplates a trial,
this is very much unlike the kind of trial
you would normally see at your
local municipal courthouse.
First, the rules at play in this trial
are very much unknown.
There are no specific rules
or procedures for matters
such as how evidence is presented,
the scope of the hearing,
and the witnesses.
Unlike a criminal trial at
the state or federal level
where the rules of evidence
and the courtroom procedures
are set, usually by a statute,
here, specific decisions on these matters
will be handled by a simple
majority vote by the Senate.
Second of all, Chief Justice John Roberts
will be playing the role
of the presiding officer
of this quote unquote trial.
Think a judge, but with
more ambiguous authority.
Still, his role at this trial
adds some interesting wrinkles
that we'll talk about in just a second,
both based on his judicial disposition
and past interactions with the president.
And additionally, all of this is happening
with a president running for reelection
in less than one year.
Given the whole fluidity of this situation
and the fact that the
senators are gonna have to act
not only as the jurors, but the lawyers,
the judges, and the
people that set the rules
for the judges, this
whole situation reminds me
of the improv game show,
Whose Line is it Anyway?
You know, the show where
everything is made up
and the points don't matter,
where Drew Carey just picks
whoever he wants at the end,
and I guess in this metaphor,
Drew Carey is Lindsey Graham.
On tonight's show are the
Democrat House managers,
the Senate, and presiding officer
Chief Justice John Roberts.
And I'm your host, Devin Stone.
So LegalEagles, come on down,
let's have some fun
and make some stuff up.
Well, at least we'll try to
avoid making anything up,
but let's talk about the upcoming
Senate impeachment trial,
where little is known and
almost anything is possible.
But first the question of whether
there will actually be
a trial in the Senate.
Recently we've learned that
Speaker of the House Nancy Pelosi
has intimated that she intends to delay
sending the articles of impeachment
from the House to the Senate
in order to provide leverage
and force the Senate to have
a fair trial against the president.
Does Nancy Pelosi have
any legal basis for that?
Well, we're in sort of
constitutional gray areas here.
The Constitution says that
the House has the sole power
of impeachment, and that the impeachment
shall be tried in the Senate,
but beyond that, it's all sort of
up in the air and ambiguous.
Certainly past precedent indicates
that this is not how it
has happened in the past.
With the impeachment of President Clinton,
there was not much of a delay
between passing the articles
of impeachment in the House and actually
going forward with the
Senate in the trial.
With Nixon, he resigned
before the Senate trial,
so this situation simply never came up.
- In all the decisions I
have made in my public life,
I have always tried to do
what was best for the nation.
- But because of the
constitutional ambiguities,
there's room for both sides to argue
that this is allowable and
that's it's completely improper.
Additionally, on a practical level
it's unclear what effect, if any,
this will have on the
eventual Senate trial.
First of all, Congress
is just about to break
for the winter holiday.
On top of that, it
takes time for the House
to appoint the managers
who effectively act as
the prosecutors and defendant's attorneys
in the Senate trial.
And on top of that, the
Senate still has to agree
on what rules will govern
the Senate trial itself.
So it's not like Congress is in a position
to move forward with the
impeachment trial anyway.
But people have analogized
a presidential impeachment
to an indictment in a criminal case.
The indictment itself
doesn't actually do anything.
So the fact that the House
has impeached the president
doesn't mean anything until
there is formal action
in the Senate.
In the same way that you
can get an indictment
against a criminal defendant
and that won't have any
effect on their life
until you actually move
forward with a trial
that will either convict
them or acquit them
of the crime that they are accused of.
It's not necessarily in anyone's interest
to simply have an
indictment or an impeachment
sitting out there in the
ether with having no effect
on the president.
Of course, it's not a good look to engage
in constitutionally dubious behavior
when you're accusing the other side
of violating the Constitution.
So given that President
Trump has been impeached
but that it has very little
effect on the presidency itself.
And without constitutional guidance here,
I would expect that this might
be a delay of a few weeks,
but eventually the Senate
trial will go forward
because otherwise the
impeachment has no real effect.
So first, let's talk about
the constitutional language
that actually governs the
impeachment proceedings to date.
We can start with Article
I, Section II, Clause V,
which states that, "The
House of Representatives
"shall choose their
speaker and other officers;
"and shall have the sole
power of impeachment."
In this case, the House exercised
their sole impeachment
power on December 18th
by formally impeaching
President Donald Trump
on two articles of impeachment.
So, where does the Senate come in?
Well for that we have
to look at Article I,
Section III, Clause VI, which states 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 concurrence
"of 2/3 of the members present."
So, as to what procedures
the Senate has to follow,
the Constitution is largely silent.
We know that the senators
will have to take
an oath or affirmation,
that the chief justice will
preside over the trial,
and that conviction and
removal of the president
requires a 2/3 majority of the
senators present at the time.
So the vast majority of procedural rules
that are going to apply
in this particular trial
are going to have to be decided
by the current sitting Senate,
largely determined as
a negotiation between
Senate Majority Leader Mitch McConnell
and Senate Minority Leader Chuck Schumer.
They'll be decided as an ad hoc basis
for this particular proceeding.
There are, however,
some helpful guidelines
put out by Congress in
the publication called
Rules of Procedure and
Practice in the Senate
When Sitting on Impeachment Trials.
So let's try and flesh out
some of these Senate rules
and guidelines that are
likely to shed light
on what the trial is going to look like
in this particular case.
First and ultimately of
greatest overall importance,
a vote of 2/3 or what's
referred to as a super-majority
of the Senate is required for conviction.
This is required by the Constitution
and no amount of Senate rules
are going to be able to change that.
Specifically, the Senate
impeachment rules state that,
"If the impeachment shall
not upon any of the articles
"presented be sustained by a vote
"of 2/3 of the members present,
"a judgment of acquittal
shall be entered."
This can be distinguished
from the simple majority
needed to actually impeach
the sitting president.
Now of course, there is
a big difference between
general impeachment of a
president and removal of office.
Impeachment occurs when
the House says it occurs,
and it's done by a simple majority vote,
whereas conviction and removal from office
happens only in the Senate
and is conducted by the
senators, not surprisingly.
But what about the trial itself?
By way of background, many frame
the whole impeachment process
akin to a criminal proceeding.
The House of Representatives
has the quote,
sole power of impeachment,
which can be compared
to the indictment process
in a criminal proceeding.
Basically this means
that the House is charged
with making a formal charge
against the president.
However, it's the Senate
which has the sole power
to quote, try all impeachments,
acts as both the jury and the judge
by hearing the evidence,
determining whether
to convict the president under
the articles of impeachment,
and if convicted, to determine
the appropriate sentence
as a result of that conviction.
Now many of you LegalEagles
are probably thinking right now,
but wait, if the Senate
is in charge of the trial
of the president, and we
know that the vice president
is tasked with presiding over the Senate,
isn't there a conflict of interest?
Well, yes, but fear not
because Article IV of the
Rules of Procedure and Practice
in the Senate When Sitting
on Impeachment Trials
states that, "When the
president of the United States
"or the vice president
of the United States,
"upon whom the powers and duties
of the office of president
"shall have devolved, shall be impeached,
"the chief justice of the United States
"shall preside over the Senate
during the consideration
"of said articles, and upon the trial
"of the person impeached therein."
So that means Chief Justice Roberts,
not Vice President Pence
will be the presiding officer
for this particular trial.
For the impeachment trial,
the presiding officer is given the quote,
"Power to make and issue orders, mandates,
"writs, and precepts
authorized by these rules.
"And rule on all questions of evidence
"including but not limited
to questions of relevancy,
"materiality, and redundancy of evidence
"and incidental questions."
This would seem to indicate
that the chief justice
will have all of the power
afforded to a judge in a standard hearing,
but there's a big but here.
The presiding officer's ruling
shall be accepted as the
judgment of the Senate, quote,
"Unless some member of
the Senate shall ask
"that a formal vote be taken thereon,
"in which case, it shall
be submitted to the Senate
"for decision without debate."
So basically, the presiding officer
has the power to make these decisions,
but if the senators do
not like the ruling,
they can override it with
a simple majority vote.
In fact, majority votes in the Senate
can be used to decide almost
all key questions that
in any normal trial or proceeding
would be decided by the
judges under the law.
The Senate itself wields
a great deal of power
in control of this trial.
In addition to being
able to take any decision
by the chief justice to a Senate vote,
it has the broad sweeping responsibility
of directing all necessary preparations
for the consideration
of impeachment articles.
They can also quote,
"compel the attendance of witnesses,
"enforce obedience to its orders,
"mandates, writes,
precepts, and judgments,
"punish in a summary way contempts of,
"and disobedience to, its authority."
And here's the big one,
"Make all lawful orders,
rules, and regulations
"which it may deem essential or conducive
"to the ends of justice."
For all intents and purposes,
the Senate is the Judge
Judy and executioner.
With 53 Republicans in the Senate,
for the Democrats to have any say
in how this trial will be conducted,
absent unlikely bipartisan agreement,
it would require more
than three GOP defections
on any impeachment-related motion,
which are decided by
simple majority votes.
So let's talk about past precedent
from the past presidential
impeachment hearings.
It's been 21 years, almost to the month,
since the last presidential
impeachment hearing,
and this trial will only be the third
in the nation's history.
So let's look to the rules
that govern the Clinton
Senate impeachment trial
to see if we can glean
any rules that will likely
occur in this particular case.
In looking at the impeachment
trial of President Clinton,
there are two particular observations
that will be helpful in assessing how
a Senate impeachment
trial might look today.
First a look at how
the rules for the trial
were decided by a then divided Senate,
similar to what we are dealing with today.
And secondly, the role
of the presiding officer,
then Chief Justice William Rehnquist.
First, looking at how the
rules were decided upon,
despite a very divided Senate at the time.
All 100 senators voted to
approve bipartisan procedures
for the Clinton impeachment trial.
At the time, Senate
Majority Leader Trent Lott
famously worked with Senate
Minority Leader Tom Daschle
to come up with a set of
rules for the impeachment.
- Senator Daschle and I are not dictators.
We are leaders that are
getting some latitude
by our conferences and our caucuses,
but we have to bring
along 98 other senators.
- The bipartisan agreement
settled on procedures
such as allowing 24 hours for each side
to present their case,
followed by 16 hours for
senators to ask questions.
There was less agreement, however,
when it came to the subject of witnesses.
A resolution dealing with witnesses past
on a strictly party line vote.
Ultimately, the
Democratically-controlled Senate
chose to only allow
three witnesses per side,
and they were all deposed privately
in the presence of a
senator from each party,
not actually in the Senate floor
during the course of the trial.
Now parts of their depositions were shown
by video during the trial,
but despite Republican best efforts,
no live testimony or
cross-examination was allowed.
Now as far as Chief
Justice Rehnquist's impact
on the Clinton impeachment hearings,
based on most accounts, his
most notable contribution
with the trial was a custom-made robe
with four gold stripes on each sleeve.
Rehnquist was largely
considered to have taken
a hands-off approach during his role
as the presiding officer of
the Clinton impeachment trial,
deferring to the Senate
on almost all matters.
In fact, Rehnquist himself
is quoted as saying,
"I did nothing in particular
"and I did it very well."
When he did make a ruling,
the conservative chief justice
was considered by even Democrats
to have an even-handed approach.
For example, in one instance,
Rehnquist upheld an objection
from a Democratic senator
regarding the house managers
referring to the Senate as quote, jurors.
Rehnquist stated, "The
Senate is not simply a jury,
"it is a court in this case."
For the most part, however,
Rehnquist left questions
related to witnesses and motions
for the senators to negotiate.
He kept both sides moving on schedule
and mainly handled procedural objections.
The Democrats restricted the Republicans
from being able to conduct the trial
as extensive as they initially wanted,
and Rehnquist didn't do anything
to interfere with that decision.
At the end of the trial, President Clinton
was acquitted no both
articles of impeachment
brought before the
Democratically-controlled Senate.
Perjury before the Grand Jury
and obstruction of justice.
- 2/3 of the senators present
not having pronounced him guilty.
- So, using the Clinton
impeachment trial as a template,
let's talk about the
current state of affairs
with the impeachment
trial of Donald J. Trump.
Now how the Trump impeachment trial
is going to play out procedurally,
the amount of witnesses,
and the amount of evidence
ultimately allowed is anyone's guess.
So is whether and which
side would want to attempt
to lengthen or shorten this trial.
To give you some frame of reference,
the Clinton Senate impeachment
trial lasted for five weeks.
There are plenty of conflicting reports
about Republicans wanting to
shorten the impeachment trial,
or also wanting to lengthen
the impeachment trial
to be able to call witnesses
like Hunter Biden or Nancy Pelosi.
Sometimes we hear that the president
wants a very lengthy trial
to be able to prove his
innocence, and sometimes we hear
that he just wants to get it over with.
Now from the president's
thumbs himself on Twitter,
he states that, "If you're
going to impeach me,
"do it now, fast, so we can
have a fair trail in the Senate,
"and so that we can our
country back to business.
"We will have Schiff, the Bidens, Pelosi,
"and many more testify, and will reveal,
"for the first time, how
corrupt our system really is.
"I was elected to clean the swamp,
"and that's what I am doing."
Similarly, there have
been conflicting accounts
of what the Democratic strategy
is going to be as well.
Some say that they simply
want the Senate trial
to be conducted as quickly as possible
to have a strict vote on
the articles themselves,
and some want to be able to
call the first-hand witnesses
that the Trump administration
has blocked from participating
in the impeachment hearings
before the House.
But both the Republicans and the Democrats
contain multitudes, so there may not be
an overarching strategy for either side.
But given the fact that the rules
or lack thereof allow the Senate to create
almost any rules that they
want, nothing is off the table.
The Republican-controlled
Senate could potentially,
depending on the rules set,
propose and pass a motion
to dismiss the charges
before a formal hearing is even conducted.
In addition, they could have a trial
and either limit or aggressively expand
the amount of evidence and witnesses
that are to be examined.
They're not bound by a
predetermined set of rules
that address matters
such as relevant evidence
or hearsay, as set forth in
the Federal Rules of Evidence.
The Senate could adopt the
Federal Rules of Evidence
is they desired, but the Constitution
doesn't mandate that they do.
The status of witnesses
is also up in the air.
It's all reading tea
leaves, at the moment.
It appears that the president
wants to call witnesses
and that other Republicans
may not want that.
But the thing about impeachment rules,
at least historically, is that
they tend to be symmetrical,
because it could always be your party
that's on the hot seat,
and so history does provide a constraint.
Generally speaking, whatever
is allowed for one party
is generally allowed for
the other party as well.
Now that isn't necessarily
how it has to go down.
The Senate can make
whatever rules it wants.
But because you never know
who the next president
is to be impeached, you probably want
to set a precedent of reciprocity.
Now, interestingly,
polling appears to show
that the vast majority
of Americans are in favor
of hearing from the members
of President Trump's staff
that have first-hand knowledge
of the whole Ukrainian affair,
including acting Chief of Staff
and head of OMB Mick Mulvaney,
Secretary of State Mike Pompeo,
and former National Security
Advisor John Bolton.
But at the moment, it's incredibly unclear
as to whether Senate
Republicans feel similarly.
In terms of strategic considerations,
there are all kinds of
theories swirling about
Republican and Democratic motivations
about the Senate trial.
For instance, some
believe that the Democrats
are possibly using the
Senate impeachment trial
as a way to fast-track
obtaining witness testimony
from key witnesses that were subpoenaed
in the House, and refused to
testify or provide documents.
The theory stems from the fact
that the House of Representatives
did not go to court
to compel the testimony
of no-show witnesses
such as National Security
Advisor John Bolton
or Secretary of State Mike Pompeo.
Essentially, the argument is
instead of waiting for appeals
to go all the way to the Supreme Court
where Chief Justice Roberts would vote on
these particular matters anyway,
they could take it a shortcut
and let him make the decision
as the presiding officer
during the Senate impeachment trial.
It's certainly interesting,
but there are a couple
problems with this theory.
First, the Senate rules
already state explicitly
that they have the power
to compel witnesses.
The Democrats most likely
won't have the votes
on a motion to have
these witnesses testify.
And second, even if there is a scenario
in which Roberts makes a decision
regarding the testimony
of those witnesses,
that decision could be
overruled by a majority vote
of the Republican-controlled Senate.
Hanging your hat on Republican
senators' unwillingness
to vote against a conservative judge
for political reasons seems unlikely.
As far as what we can expect
from Chief Justice Roberts
in his role as presiding
officer of the Senate trial,
it's worth noting a couple of things.
Number one, he is the former law clerk
of Chief Justice Rehnquist.
And he identifies as an institutionalist
who prides himself as being protective
of the reputation of the court.
For example, Chief Justice
Roberts once rebuked
President Trump after
criticizing a court ruling
made by a quote, Obama judge.
Roberts said, "We do not have Obama judges
"or Trump judges, Bush
judges or Clinton judges.
"What we have is an extraordinary
group of dedicated judges
"doing their level best to do equal right
"to those appearing before him."
Indeed, some of the most
recent Supreme Court cases
where Justice Roberts has
voted with the majority,
have shown extreme deference to Congress.
In one particular case,
the Supreme Court allowed
representative body
to even gerrymander their
own geographical districts.
So, in terms of what you can expect
from Justice Roberts in the
Senate impeachment trial,
probably you can expect him
to play it extremely safe,
to not rock the boat
and show extreme deference to the senators
and whatever they decide.
So how this trial will look
will largely be based
on either the hands-on
or hands-off approach of
Chief Justice Roberts,
and ultimately how the
Republican-controlled Senate
votes to set the rules
for the trial itself.
The bottom line is that
most major decisions
are ultimately at the
discretion of the Senate itself.
Basically, there are relatively few rules
that can stand in the
way of a Senate majority,
and most of them are
fairly easily changed.
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So, do you agree with my analysis?
Leave your objections in the comments,
and check out this playlist
for all of my other real
law reviews over here,
where I will see you in court.
