Thread by @rossgarber

1/ Senate Trial: If the House votes to impeach Trump, the matter moves to the Senate for a trial. Here’s how that would work.
-The Constitution says that the Senate has the sole power to try impeachments, the Chief Justice presides, and a 2/3 vote is necessary to convict.

2/ The Constitution doesn’t say anything more about procedure or timing of a trial. In Nixon v. United States, the Supreme Court ruled that how the Senate conducts an impeachment trial is entirely up to the Senate and won’t be reviewed by the courts.

3/ In Nixon the Senate had formed a committee to hear evidence in the impeachment trial of a judge. The judge argued the whole Senate had to sit for trial. The Supreme Court said the Constitution puts the Senate in charge of impeachment charges so courts can’t get involved.

4/ While the Constitution says the Chief Justice presides, it doesn’t say what that means. In the two previous presidential impeachment trials, the Chief Justices took on very limited, and mostly non-substantive roles. Their decisions could be overruled by a majority of Senators.

5/ It is possible, though, that Chief Justice Roberts could take on a more substantive role. In a normal court case, a presiding judge sets trial schedules and rules on legal issues, including what evidence is admissible.

6/ In the Clinton Senate trial, there was discussion among Clinton’s lawyers about asking the Chief Justice to rule on a motion to dismiss all of the articles of impeachment. (They decided not to.)

7/ While it’s unlikely the Chief Justice would decide a motion to dismiss, it is possible the Senate itself would. Such a motion was filed in the Clinton case. The Senate could vote by simple majority to grant a motion to dismiss some or all of the articles of impeachment.

8/ Assuming the Chief Justice doesn’t do it (which he probably won’t), the Senate itself sets the trial schedule. There would be nothing to prevent the Senators, for example, from setting the first day of trial after the 2020 election or even next inauguration.

9/ The Senate also decides how evidence is presented and what evidence they hear. In Clinton they adopted a process where witnesses didn’t testify. Instead, the lawyers conducted a few depositions and played excerpts for the Senators. President Clinton didn’t testify.

10/ Speaking of lawyers, the President is generally represented by both personal counsel and lawyers representing the institution of the Presidency. The prosecutors are called “managers.” They are members of the House who supported impeachment.

11/ As I noted, the Senators can decide what evidence they want to hear. In the current situation, for example, they could decide they want to hear a lot of evidence about Joe Biden and his son.

12/ The Senate has the right to subpoena witnesses to testify. They could, for example, subpoena Biden and his son. They could also issue subpoenas for current and former administration officials.

13/ Witnesses could fight subpoenas by asserting testimonial immunity or various privileges, including executive privilege. The Senate would then have to decide how to try to enforce these subpoenas. (A subject for another day.)

14/ In the past, the Senators have deliberated (debated their decisions) in secret. They then emerge to vote on each article in public.

15/ An issue has come up where some senators have thought a president committed the acts alleged, but do not think he should be removed. They have wanted that reflected on the record.

16/ In addition to removal, the Constitution also provides that the Senate can disqualify a person from holding “any Office of honor, Trust or Profit under the United States.” If the Senate convicts by 2/3 vote, they could vote on whether to disqualify. Only a majority necessary.

17/ There is disagreement about whether the Presidency is considered an “office of honor, trust or profit under the United States.” A textual reading of the Constitution suggests its is not. If that’s the case, a president who is impeach and removed could be re-elected.

18/ Here are rules adopted by the Senate for the conduct of impeachment trials. senate.gov/artandhistory/… As with other Senate Rules, they may be amended.

19/ For the Clinton trial, senators considered 2 phases. 1st would be brief presentations, and only if 2/3 agreed to have a more extensive trial would the process continue. Ultimately that’s not how the Senate handled the trial; but it could have. Essentially, dismissal by 1/3+1.

20/ In Clinton, Rules for pre-trial proceedings were adopted.
They provided:
- managers and the White House would file pre-trial briefs
- each side would then have up to 24 hours to present opening arguments (cont)

21/ Pre-trial rules cont
- Senators could submit questions in writing to the Chief Justice, who would ask them to the managers and defense counsel
- a motion to dismiss the case would be considered
- if Articles weren’t dismissed, motions to call witnesses could be filed. (cont)

22/ Pre-trial rules cont
- If motions to call witnesses were granted, these witnesses would first be deposed
Here are the full Clinton Pre-trial Rules. dropbox.com/s/d6euwjypyfug…

23/ In Clinton, a motion to dismiss was denied 44-56.
A motion by the House managers to depose witnesses was granted.

24/ In Clinton, Rules for deposing witnesses and presenting testimony were adopted
- Depositions conducted in private
- Depositions presided over by one Republican Senator and one Democratic Senator
- Both POTUS lawyer and House manager had the right to question witnesses (cont)

25/ Depo procedures cont
- After depositions, parties could make motions to admit partial or full transcripts or video of depos into evidence
- Majority and minority counsel could jointly make motion to allow additional depositions based on newly discovered info (cont)

26/ Depo procedures cont
- Motions could then be made about presenting evidence and live testimony before the Senate
- The House managers and the President’s lawyers would each have up to 3 hours for final arguments
Here are the full Depo Rules dropbox.com/s/vn9kw1m7mo94…

27/ In Clinton, House Managers took 3 depositions
Both parties played excerpts of video from the depos for the Senate
Neither party asked to take additional depositions
Neither party sought to have witnesses testify in person