Research: Impeach: Not just another trial

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The House of Representatives on Wednesday delivered articles of impeachment of a president to the Senate, only the third time in U.S. history that’s happened. What’s next?

American impeachment tradition has British origins; English parliament used a similar process to hold royal ministers accountable since the 14th century. As Alexander Hamilton described in Federalist 65, impeachment is different from court proceedings in that it strictly involves the “misconduct of public men, or in other words from the abuse or violation of some public trust.”

While the House initiated impeachment proceedings 62 times since 1789, and actually impeached 20 federal officers (with eight convictions), the public rarely pays much attention unless it’s a president.

So with eyes on the Hill, how does this process work?

The law is silent. Up to this point, we’ve just seen the process initiated with an investigation, hearings, and so on. The House voted to impeach, and we know a Senate trial is coming up. What comes next is rather murky. Neither the Constitution nor statute prescribes a specific process or requirements, leaving Congress to set its own rules.

The “court.” The House appoints impeachment managers who act as prosecutors in the Senate’s trial. On Wednesday the Speaker announced seven such managers, all House Democrats (historically the appointed managers have supported impeachment, just as prosecutors tend to support prosecution in a criminal trial).

The president will choose his own defense team. The Senate as a whole will serve as jury, deciding to convict or acquit on the two charges. The “judge” who presides over the trial, interpreting and applying the rules, will be U.S. Supreme Court Chief Justice John Roberts.

The rules. The Senate will discuss and adopt guidelines, like court rules regarding the presentation of evidence and behavior, for the impeachment trial. In court trials, the rules are already a matter of law, codified in state and federal statutes, and local court rules. However, as the law is silent on impeachment trials, the parameters which the Senate will set, including potential limits on the evidence presented, could impact how things turn out.

Summons. After all that is sorted, the Senate will issue a summons asking the president to formally respond to the articles of impeachment by a certain time (no response is considered a “not guilty” plea).

Dismissal? Any Senator could theoretically move to dismiss the charges at this point; a simple majority vote in the Senate could grant that dismissal.

Assuming that doesn’t happen, opening statements from defense lawyers and the prosecutors-House managers are expected to begin Tuesday and could last several days.

Questioning and evidence. Like in court trials, witnesses will be subpoenaed and questioned (“examined” by the presenting side and “cross-examined” by the other). Written evidence and testimony will be presented. As in other trials and according to the rules decided by the Senate before trial begins, the Senate could introduce a motion to limit or expand the evidence being presented.

When all that’s done two people on each side are allowed to make closing statements, which could be lengthy.

Deliberation. Unlike with court juries, deliberation — the deciding of guilt or innocence based on the evidence presented at trial — could be closed (secret) or open (public). That’s up to the Senate, but historically the Senate’s impeachment deliberations have been closed.

Vote. A two-thirds vote of the Senate on at least one of the articles is required to remove the president from office (an additional simple majority vote could bar him from holding office again in the future). The vice president would then become president.

Statistically speaking, conviction is unlikely; it would be the first time an American president is removed from office this way (Clinton was acquitted, and Nixon resigned before things got this far).

Sources: The Congressional Research Service (Loc.gov), History.house.gov and Congress.gov.

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Sholeh Patrick is a columnist for the Hagadone News Network with degrees in law and international studies. Contact her at Sholeh@cdapress.com.

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