(Thread) Senate Trial
The Senate Rules are here: govinfo.gov/content/pkg/CD…
Let’s march through the rules and pertinent parts of the Constitution together🤓
(This will help you prepare for Twitter Bar Exam📒 so take notes!)
We start with Art. II, sec. 3 of the Constitution⤵️
The Senate Rules are here: govinfo.gov/content/pkg/CD…
Let’s march through the rules and pertinent parts of the Constitution together🤓
(This will help you prepare for Twitter Bar Exam📒 so take notes!)
We start with Art. II, sec. 3 of the Constitution⤵️
1/ After approving Articles of Impeachment, the House selects managers who act as the prosecutors.
The business in the Senate kicks off when the Senate receives notice from the House that managers have been appointed and “directed” to carry articles of impeachment to the Senate:
The business in the Senate kicks off when the Senate receives notice from the House that managers have been appointed and “directed” to carry articles of impeachment to the Senate:
2/ When the Senate receives notice, the secretary of the Senate "immediately" informs the House that the Senate is "ready to receive" the managers.
The rules give us much pomp and formality, but very little substance.
(I hope I get all of these screenshots in the right place!)
The rules give us much pomp and formality, but very little substance.
(I hope I get all of these screenshots in the right place!)
3/ For example, Rule II says requires a scripted announcement before the managers present the Articles of Impeachment to the Senate.
Rule III offers more specifics about time and place.
Rule III offers more specifics about time and place.
4/ At the Clinton trial, Chief Justice Rehquist clarified that, while the Chief Justice "presides," the Senators are essentially both judge and jury.
First, the Chief Justice is sworn in, then he administers this oath of office to the Senators:
(Notice the "impartial" part)
First, the Chief Justice is sworn in, then he administers this oath of office to the Senators:
(Notice the "impartial" part)
5/ The Senate has the power to compel witnesses to testify.
It doesn't say "subject to judicial approval."
So the Senate asserts that it doesn't have to wait for the courts to decide whether it has the authority.
(As a practical matter the Chief Justice is there anyway.)
It doesn't say "subject to judicial approval."
So the Senate asserts that it doesn't have to wait for the courts to decide whether it has the authority.
(As a practical matter the Chief Justice is there anyway.)
6/ The Chief Justice shall direct preliminary preparations and MAY make all orders and rulings that an ordinary judge would make.
The hitch is that even if he does make a ruling, he can be overruled by a majority of Senators.
The hitch is that even if he does make a ruling, he can be overruled by a majority of Senators.
7/ As a practical matter, this gives a majority of Senators a great deal of power over evidentiary and other decisions.
Rule VIII offers formalities about how the president is informed that he's been impeached. (This was before modern marvels of technology like Twitter)
Rule VIII offers formalities about how the president is informed that he's been impeached. (This was before modern marvels of technology like Twitter)
8/ The president can appear in person, or he can send representatives on his behalf.
The Senate can appoint a committee of Senators to hear the testimony. The committee can certify a copy of the transcripts and present it to the Senate.
The full Senate can still call witnesses.
The Senate can appoint a committee of Senators to hear the testimony. The committee can certify a copy of the transcripts and present it to the Senate.
The full Senate can still call witnesses.
9/ "Counsel for the parties" are to be heard; which means that the Senators cannot prevent the House Managers from presenting their case:
Senators address any questions or objections to the Chief Justice (a rule which maintains decorum):
Senators address any questions or objections to the Chief Justice (a rule which maintains decorum):
10/ Rule XVII prevents the 5-minute questioning of witnesses by each Senator. One person conducts the examination, another the cross-examination:
And now for my favorite, the rule that keeps Senators from grandstanding and speechmaking.. .
And now for my favorite, the rule that keeps Senators from grandstanding and speechmaking.. .
11/ If a Senator wants to ask a question, he or she submits the question is to the Chief Justice, who reads the question. Senators are specifically told not to engage in colloquy.
(No "colloquy"😂)
Opening and closing arguments are also limited.
(No "colloquy"😂)
Opening and closing arguments are also limited.
What I love about Twitter is that someone will always catch my mistakes.
That's why you're all my Twitter kids.
My Real Life Teenager get positively gleeful when he catches me making a mistake.
That's why you're all my Twitter kids.
My Real Life Teenager get positively gleeful when he catches me making a mistake.
12/ A Senator can make a motion to adjourn for a day, or “sine die”
Lawfare says this means dismissing the case.
lawfareblog.com/imagining-sena…
I've always understood sine die to mean that the date of return hasn't yet been announced, but I have no experience with Senate Latin.
Lawfare says this means dismissing the case.
lawfareblog.com/imagining-sena…
I've always understood sine die to mean that the date of return hasn't yet been announced, but I have no experience with Senate Latin.
13/ While the burden of proof is not given, Art I, Sec. 3 makes clear this is not a criminal trial and doesn’t carry criminal punishment. The purpose isn’t to inflict punishment. The purpose is to protect the nation, so “beyond a reasonable doubt” doesn’t seem appropriate.
14/
Q: Is it true that once a President is impeached, he can't be pardoned or issue pardons?
No. This has been misunderstood.
See: lawandcrime.com/legal-analysis…
In a nutshell . . .
Q: Is it true that once a President is impeached, he can't be pardoned or issue pardons?
No. This has been misunderstood.
See: lawandcrime.com/legal-analysis…
In a nutshell . . .
15/ The "except in cases of impeachment" in Art. II, Sect. 2 is widely understood by constitutional scholars to mean that a pardon can't undo or stop an impeachment.
That's explained more fully here: lawandcrime.com/legal-analysis…
That's explained more fully here: lawandcrime.com/legal-analysis…
Good question.
Changing the rules requires a supermajority (67 Senators)
Changing the rules requires a supermajority (67 Senators)
I added a page to my website with this information. impeachment-trump.com/faq-how-impeac…
My website started out as my personal notes.
Then my IT director (my husband) magically turned my notes into a website as a public service.
My website started out as my personal notes.
Then my IT director (my husband) magically turned my notes into a website as a public service.
Good question.
It's the number present.
Only 51 senators are necessary for a quorum.
So technically, 34 Senators could remove Trump from office.
It's the number present.
Only 51 senators are necessary for a quorum.
So technically, 34 Senators could remove Trump from office.
I added an FAQ page.
(I miss stuff. Sometimes my mentions get jammed. If you asked a good question and I didn't answer, I may not have seen it)
impeachment-trump.com/senate-trial-f…
(I miss stuff. Sometimes my mentions get jammed. If you asked a good question and I didn't answer, I may not have seen it)
impeachment-trump.com/senate-trial-f…
Interesting question: If the articles haven't been transmitted to the Senate, has Trump been impeached?
@NoahRFeldman, who testified as an expert at the impeachment hearing, says no.
He's not impeached until the Articles are delivered.
@NoahRFeldman, who testified as an expert at the impeachment hearing, says no.
He's not impeached until the Articles are delivered.
