The Impeachment Process in the Senate
February 15, 2024
After the House impeaches a federal officer, the Senate conducts
Updated June 24, 2026
(R46185)
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Summary
After the House impeaches a federal officer, the Senate may conduct a trial to determine if the a trial to determine if the
individual should be removed from office. The Senate has a set of rules specific to the conduct of individual should be removed from office. The Senate has a set of rules specific to the conduct of
Elizabeth Rybicki
an impeachment trial, most of which originated in the early an impeachment trial, most of which originated in the early
19th19th century. century.
Specialist on Congress and the Legislative Process
The impeachment rules lay out specific steps that the Senate takes to organize for a trial. House The impeachment rules lay out specific steps that the Senate takes to organize for a trial. House
managers (Members of the House who present the case against the impeached officer in the managers (Members of the House who present the case against the impeached officer in the
Michael Greene
Senate) read the articles of impeachment on the Senate floor. The presiding officer and Senators Senate) read the articles of impeachment on the Senate floor. The presiding officer and Senators
Analyst on Congress and
take an oath to do impartial justice, and the Senate issues a take an oath to do impartial justice, and the Senate issues a
“summons”"summons" to the accused and to the accused and
the Legislative Process
requests that a written answer be filed. The House managers are also invited to respond to the requests that a written answer be filed. The House managers are also invited to respond to the
answer of the impeached officer.answer of the impeached officer.
Actions after these organizing steps, however, are not specified in the impeachment rules. The Actions after these organizing steps, however, are not specified in the impeachment rules. The
impeachment rules mention some actions that are common in judicial trials, such as opening and closing statements by the impeachment rules mention some actions that are common in judicial trials, such as opening and closing statements by the
parties to the case and the examination of witnesses, but provide little specific guidance. Instead, the rules allow the Senate, parties to the case and the examination of witnesses, but provide little specific guidance. Instead, the rules allow the Senate,
when sitting for a trial, to set particular procedures through the approval of when sitting for a trial, to set particular procedures through the approval of
“"orders.orders.
”" Some orders of the Senate are Some orders of the Senate are
unanimous consent agreements, but others are proposals adopted by the Senate. If such a proposal is considered while the unanimous consent agreements, but others are proposals adopted by the Senate. If such a proposal is considered while the
Senate is sitting for the trial, then debate by the parties to the case (the House managers and the counsel for the accused) is Senate is sitting for the trial, then debate by the parties to the case (the House managers and the counsel for the accused) is
limited to one hour for each side. As a result, the support of three-fifths of the Senate to invoke cloture is not necessary to limited to one hour for each side. As a result, the support of three-fifths of the Senate to invoke cloture is not necessary to
reach a vote to approve a procedural proposal. Such proposals are subject to amendment, which are also debated by the reach a vote to approve a procedural proposal. Such proposals are subject to amendment, which are also debated by the
parties for one hour each side. parties for one hour each side.
Compared to when the Senate meets in legislative and executive session, the opportunity for individual participation by
Compared to when the Senate meets in legislative and executive session, the opportunity for individual participation by
Senators in a Senate trial is limited. The rules require that any debate among Senators take place in closed session. Senators Senators in a Senate trial is limited. The rules require that any debate among Senators take place in closed session. Senators
can make motions under the impeachment rules, but these rules are silent on what motions can be offered, and when. In can make motions under the impeachment rules, but these rules are silent on what motions can be offered, and when. In
modern trials, when Senators proposed motions, it was often pursuant to a previously-agreed-to order of the Senate. Senators modern trials, when Senators proposed motions, it was often pursuant to a previously-agreed-to order of the Senate. Senators
can also submit written questions during the trial—to House managers, counsel for the impeached officer, or witnesses—that can also submit written questions during the trial—to House managers, counsel for the impeached officer, or witnesses—that
the presiding officer presents on their behalf. Orders of the Senate, however, might structure the time and process for posing the presiding officer presents on their behalf. Orders of the Senate, however, might structure the time and process for posing
questions. During the open portion of an impeachment trial, Senators spend most of the time listening to arguments presented questions. During the open portion of an impeachment trial, Senators spend most of the time listening to arguments presented
by House managers and counsel for the impeached officer.by House managers and counsel for the impeached officer.
Impeachment Rule XI allows the Senate to create trial committees to hear and consider evidence and report it to the Senate. Impeachment Rule XI allows the Senate to create trial committees to hear and consider evidence and report it to the Senate.
Such committees were not intended to be used for presidential impeachments, Such committees were not intended to be used for presidential impeachments,
but four of the seven impeachment trials completed since 1936 concerned federal judges, and in each of these cases the Senate established a trial committee.
and have been used in the four modern completed trials that concerned federal judges.
When the Senate meets in closed session to deliberate, each Senator may speak only once on each question. Such remarks are When the Senate meets in closed session to deliberate, each Senator may speak only once on each question. Such remarks are
limited to 15 minutes on the final question—whether the impeached officer is guilty or not guilty—and to 10 minutes on limited to 15 minutes on the final question—whether the impeached officer is guilty or not guilty—and to 10 minutes on
other questions. On the final question, Senators respond other questions. On the final question, Senators respond
“guilty” or “"guilty" or "not guiltynot guilty
”" on each article of impeachment. The support on each article of impeachment. The support
of two-thirds of Senators present on an article is necessary to convict.of two-thirds of Senators present on an article is necessary to convict.
The presiding officer of a trial operates much like the presiding officer in regular Senate session, in that the chair may issue The presiding officer of a trial operates much like the presiding officer in regular Senate session, in that the chair may issue
an initial ruling, but any Senator could request that the full Senate vote instead. Because of the debate limitations in the an initial ruling, but any Senator could request that the full Senate vote instead. Because of the debate limitations in the
impeachment rules, procedural decisions appealed or submitted by the chair can be reached with majority support. In a impeachment rules, procedural decisions appealed or submitted by the chair can be reached with majority support. In a
presidential impeachment trial, the Chief Justice of the United States is the presiding officer.presidential impeachment trial, the Chief Justice of the United States is the presiding officer.
Although the impeachment rules prescribe that the Senate convene at noon for a trial, six days a week, a Senate majority can Although the impeachment rules prescribe that the Senate convene at noon for a trial, six days a week, a Senate majority can
alter this schedule. It is possible for the Senate to conduct legislative and executive business on the same calendar days that it alter this schedule. It is possible for the Senate to conduct legislative and executive business on the same calendar days that it
meets for a trial, but it must meet in legislative or executive session to do so. meets for a trial, but it must meet in legislative or executive session to do so.
When the Senate is sitting as a Court of Impeachment, legislative and executive business cannot occur.
The information presented in this report is drawn from published sources of congressional rules and precedents, as well as the The information presented in this report is drawn from published sources of congressional rules and precedents, as well as the
public record of past impeachment trial proceedings. It provides an overview of the procedures, and some past actions, but public record of past impeachment trial proceedings. It provides an overview of the procedures, and some past actions, but
should not be treated or cited as an authority on congressional proceedings. Authoritative guidance on the interpretation and should not be treated or cited as an authority on congressional proceedings. Authoritative guidance on the interpretation and
possible application of rules and precedents can be obtained only through consultation with the Office of the Senate possible application of rules and precedents can be obtained only through consultation with the Office of the Senate
Parliamentarian.Parliamentarian.
Congressional Research Service
link to page 4 link to page 5 link to page 7 link to page 7 link to page 8 link to page 9 link to page 12 link to page 12 link to page 13 link to page 14 link to page 14 link to page 20 link to page 21 link to page 23 link to page 24 link to page 26 link to page 28 The Impeachment Process in the Senate
Contents
Introduction ..................................................................................................................................... 1
History of the Impeachment Rules of the Senate ............................................................................ 2
Impeachment Trial Procedures and Practice ................................................................................... 4
Brief Overview .......................................................................................................................... 4
Receipt and Presentation of Articles of Impeachment .............................................................. 5
Organizing for the Trial ............................................................................................................. 6
Determining Trial Proceedings: Orders of the Senate ............................................................... 9
Process for Agreeing to an “Organizing Resolution” for the Trial ..................................... 9
Content of an “Organizing Resolution” for the Trial ........................................................ 10
Consideration and Collection of Evidence ............................................................................... 11
What the Impeachment Rules Provide ............................................................................... 11
Creation of a Trial Committee .......................................................................................... 17
Closed Deliberations by Senators ........................................................................................... 18
Voting on Articles of Impeachment ......................................................................................... 20
Senate Interpretation of the Impeachment Rules and the Role of the Presiding Officer ............... 21
Conducting Legislative and Executive Business ........................................................................... 23
Contacts
Author Information ........................................................................................................................ 25
Congressional Research Service
The Impeachment Process in the Senate
Introduction
Introduction
Under the terms of the U.S. Constitution, it is the responsibility of the House to impeach Under the terms of the U.S. Constitution, it is the responsibility of the House to impeach
(meaning, formally accuse) a federal officer of high crimes and misdemeanors, and the (meaning, formally accuse) a federal officer of high crimes and misdemeanors, and the
responsibility of the Senate to try and then possibly convict that officer. The Senate therefore does responsibility of the Senate to try and then possibly convict that officer. The Senate therefore does
not initiate impeachment proceedings, but instead acts after the House has charged a federal not initiate impeachment proceedings, but instead acts after the House has charged a federal
officer with wrongdoing.officer with wrongdoing.
The Constitution grants the Senate the sole power to try all impeachments, and establishes four The Constitution grants the Senate the sole power to try all impeachments, and establishes four
requirements for an impeachment trial in the Senate: (1) the support of two-thirds of Senators requirements for an impeachment trial in the Senate: (1) the support of two-thirds of Senators
present is necessary to convict; (2) Senators must take an oath or an affirmation; (3) the present is necessary to convict; (2) Senators must take an oath or an affirmation; (3) the
punishments the Senate can issue cannot extend further than removal from office and punishments the Senate can issue cannot extend further than removal from office and
disqualification from holding future office; and (4) in the case of a presidential impeachment trial, disqualification from holding future office; and (4) in the case of a presidential impeachment trial,
the Chief Justice, and not the Vice President or a Senator, is the presiding officer.the Chief Justice, and not the Vice President or a Senator, is the presiding officer.
All other trial procedures are left to the Senate to determine itself. Indeed, in 1993, the Supreme All other trial procedures are left to the Senate to determine itself. Indeed, in 1993, the Supreme
Court ruled—in response to a claim by an impeached federal judge that his trial was Court ruled—in response to a claim by an impeached federal judge that his trial was
unconstitutional because the Senate relied, in part, on a committee to collect evidence—that the unconstitutional because the Senate relied, in part, on a committee to collect evidence—that the
judicial branch did not have a role to play in assessing the validity of Senate impeachment judicial branch did not have a role to play in assessing the validity of Senate impeachment
procedures.procedures.
11 According to the Supreme Court, the Constitution placed a few specific requirements According to the Supreme Court, the Constitution placed a few specific requirements
on the trial, and on the trial, and
“"their nature suggests that the Framers did not intend to impose additional their nature suggests that the Framers did not intend to impose additional
limitations on the form of the Senate proceedings.limitations on the form of the Senate proceedings.
”2
"2
In each of the 17 impeachment trials the Senate has completed since 1789, the Senate has In each of the 17 impeachment trials the Senate has completed since 1789, the Senate has
therefore determined its method of proceeding.therefore determined its method of proceeding.
33 Although attention was certainly paid to past Although attention was certainly paid to past
precedent, the Senate established unique procedures for each trial to some extent, and sometimes precedent, the Senate established unique procedures for each trial to some extent, and sometimes
the decisions reached regarding process were consensual or even unanimous. Notably, of the 7 the decisions reached regarding process were consensual or even unanimous. Notably, of the 7
full trials conducted in the last 80 years, 4 were of federal judges. In these four casesfull trials conducted in the last 80 years, 4 were of federal judges. In these four cases
, the Senate the Senate
appointed a trial committee, composed of an equal number of Senators from each party, to hear appointed a trial committee, composed of an equal number of Senators from each party, to hear
and consider evidence and report it to the Senate. Trial committees were not intended to be used and consider evidence and report it to the Senate. Trial committees were not intended to be used
for presidential impeachments, and the three trials since 1936 conducted without a committee for presidential impeachments, and the three trials since 1936 conducted without a committee
were that of President Bill Clinton in 1999 and President Donald Trump in 2020 and 2021. In were that of President Bill Clinton in 1999 and President Donald Trump in 2020 and 2021. In
those trials, some of the procedural decisions reached, discussed in detail below, were tailored for those trials, some of the procedural decisions reached, discussed in detail below, were tailored for
particular circumstances.particular circumstances.
4
4
This report summarizes the existing rules and some past practices of the Senate related to an This report summarizes the existing rules and some past practices of the Senate related to an
impeachment trial of a federal official. It does not discuss possible grounds for impeachment or
1 Nixon v. United States, 506 U.S. 224, 225 (1993). 2 Nixon v. United States, 506 U.S. 224, 230 (1993). 3 Of the 17 completed impeachment trials, all but five—President Donald Trump in 2020 and 2021, President Bill Clinton, President Andrew Johnson, and Secretary of War William W. Belknap—were regarding federal judges. For more information on judicial impeachment procedures, see archived CRS Report R41172, The Role of the Senate in
Judicial Impeachment Proceedings: Procedure, Practice, and Data, by Betsy Palmer.
4 The Senate produced a comprehensive four-volume set containing a complete record of its proceedings on the impeachment trial of President Clinton. See U.S. Congress, Senate, Proceedings of the United States Senate in the
Impeachment Trial of President William Jefferson Clinton, 106th Cong., 1st sess., February 12, 1999, S.Doc. 106-4 (Washington: GPO, 2000). In addition, miscellaneous Senate publications related to the impeachment trial of President Clinton have been compiled by GPO at this website: https://www.govinfo.gov/content/pkg/GPO-MISCSPUB/html/GPO-MISCSPUB.html. The Senate compiled a similar four-volume set chronicling the proceedings of the impeachment trial of President Trump. See U.S. Congress, Senate, Proceedings of the United States Senate in the
Impeachment Trial of President Donald John Trump, 116th, 2nd sess., January 27, 2020, S.Doc. 116-12 (Washington: GPO, 2020). GPO also produced a digital compilation on the impeachment of President Trump at https://www.govinfo.gov/collection/impeachment-related-publications.
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impeachment trial of a federal official. It does not discuss possible grounds for impeachment or other Constitutional or legal issuesother Constitutional or legal issues
, which are addressed in CRS Report R46013, which are addressed in CRS Report R46013,
Impeachment
and the Constitution, by Legislative Attorneys Jared P. Cole and Todd Garvey. The information , by Legislative Attorneys Jared P. Cole and Todd Garvey. The information
presented in this report is drawn from published sources of congressional rules and precedents, as presented in this report is drawn from published sources of congressional rules and precedents, as
well as the public record of past impeachment trial proceedings. It provides an overview of the well as the public record of past impeachment trial proceedings. It provides an overview of the
procedures and should not be treated or cited as an authority on congressional proceedings. procedures and should not be treated or cited as an authority on congressional proceedings.
Consultation with the Office of the Senate Parliamentarian is always advised regarding the Consultation with the Office of the Senate Parliamentarian is always advised regarding the
possible application of rules and precedents.possible application of rules and precedents.
History of the Impeachment Rules of the Senate
The Senate adopted a set of impeachment rules in 1868, recommended by a select committee The Senate adopted a set of impeachment rules in 1868, recommended by a select committee
appointed for that purpose, in anticipation of the trial of President Andrew Johnson. These were appointed for that purpose, in anticipation of the trial of President Andrew Johnson. These were
not the first rules regarding impeachment ever agreed to in the Senate. The Senate had agreed to not the first rules regarding impeachment ever agreed to in the Senate. The Senate had agreed to
rules for its two earliest impeachment trials (Senator William Blount, 1798-1799, and District rules for its two earliest impeachment trials (Senator William Blount, 1798-1799, and District
Judge John Pickering, 1803-1804), but it seems to have considered the rules to apply only to the Judge John Pickering, 1803-1804), but it seems to have considered the rules to apply only to the
trial of that particular individual.trial of that particular individual.
55 For the third impeachment trial, that of Supreme Court Justice For the third impeachment trial, that of Supreme Court Justice
Samuel Chase (1804-1805), the Senate approved 19 impeachment rules, and these rules appear to Samuel Chase (1804-1805), the Senate approved 19 impeachment rules, and these rules appear to
have been used in the next two trials (District Judge James H. Peck, 1831-1832, and District have been used in the next two trials (District Judge James H. Peck, 1831-1832, and District
Judge West H. Humphreys, 1862).Judge West H. Humphreys, 1862).
66 The 1868 select committee in the Johnson impeachment was The 1868 select committee in the Johnson impeachment was
explicit in its intent to recommend permanent rules, deeming it explicit in its intent to recommend permanent rules, deeming it
“"proper, to report general rules for proper, to report general rules for
the trial of all impeachments.the trial of all impeachments.
”7"7 The select committee recommended 25 rules, many of which The select committee recommended 25 rules, many of which
were the same as those adopted for the Chase trial, and some of which codified practices from were the same as those adopted for the Chase trial, and some of which codified practices from
previous trials.previous trials.
8
8
The rules reported by the 1868 select committee in the Johnson impeachment chiefly concerned The rules reported by the 1868 select committee in the Johnson impeachment chiefly concerned
the mode and manner of preparing for a trial. Some Senators argued that impeachment rules the mode and manner of preparing for a trial. Some Senators argued that impeachment rules
should not be too prescriptive regarding the actual trial proceedings, believing such decisions to should not be too prescriptive regarding the actual trial proceedings, believing such decisions to
be best made after the Senate had convened for the trial. They recognized that the outcome of a be best made after the Senate had convened for the trial. They recognized that the outcome of a
trial could depend trial could depend
“"upon the rulings and mode of proceeding during the trial.upon the rulings and mode of proceeding during the trial.
”9"9 But the lack of But the lack of
detail in the rules also reflected the nature of Senate proceedings in the middle of the detail in the rules also reflected the nature of Senate proceedings in the middle of the
19th19th century. century.
Without designated party floor leaders and with very few staff, Senators were accustomed to Without designated party floor leaders and with very few staff, Senators were accustomed to
discussing procedures on the floor, effectively working out a method of proceeding on legislation discussing procedures on the floor, effectively working out a method of proceeding on legislation
as they went along.as they went along.
10
10
The Senate adopted the rules reported by the select committee, and they have operated as the The Senate adopted the rules reported by the select committee, and they have operated as the
rules for impeachment trials since 1868, with very few changes. During the Johnson trial, when rules for impeachment trials since 1868, with very few changes. During the Johnson trial, when
disputes arose about the interpretation of the rules, the Senate agreed to three changes to clarify
5 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States, (Washington: GPO, 1907) (hereinafter Hinds), vol. 3, §2303 and §2331.
6 Hinds, vol. 3, §2348; §2372 and §2393. 7 Congressional Globe, February 29, 1822, p. 1522. 8 Most of the rules were the same or very similar to rules agreed to in 1804 for the trial of Justice Samuel Chase. For details, see CRS memorandum, “Evolution of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials,” by Robert L. Thornton, September 3, 1974, published in U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment
Trials, (Pursuant to S.Res. 370), 93rd Cong., 2nd sess., August 22, 1974, 93-1125 (Washington: GPO, 1974), pp. 54-77.
9 Congressional Globe, February 29, 1822, p. 1520. 10 Gerald Gamm and Steven S. Smith, “Emergence of Senate Party Leadership,” in U.S. Senate Exceptionalism, ed. Bruce I. Oppenheimer (Columbia: Ohio State University Press, 2002), pp. 224-226.
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their intent.11disputes arose about the interpretation of the rules, the Senate agreed to three changes to clarify their intent.11 Despite calls to revise the rules for the impeachment trials conducted early in the Despite calls to revise the rules for the impeachment trials conducted early in the
20th century,1220th century,12 the impeachment rules were not changed again until 1935. At that time, the Senate, the impeachment rules were not changed again until 1935. At that time, the Senate,
in response to reported low attendance by Senators during the 1933 trial of district judge Harold in response to reported low attendance by Senators during the 1933 trial of district judge Harold
Louderback, agreed to the current Rule XI, which allows for the establishment of a committee to Louderback, agreed to the current Rule XI, which allows for the establishment of a committee to
receive evidence and hear testimony from witnesses (see discussion of trial committees below).receive evidence and hear testimony from witnesses (see discussion of trial committees below).
13
13
The Senate next reviewed its impeachment rules in 1974, when the House was expected to The Senate next reviewed its impeachment rules in 1974, when the House was expected to
impeach President Richard Nixon. (The House had not impeached a federal officer since 1936.) impeach President Richard Nixon. (The House had not impeached a federal officer since 1936.)
At that time, the Senate directed the Committee on Rules and Administration to examine Senate At that time, the Senate directed the Committee on Rules and Administration to examine Senate
impeachment rules and precedents with a view toward recommending necessary revisions for the impeachment rules and precedents with a view toward recommending necessary revisions for the
conduct of a trial.conduct of a trial.
1414 The Committee met twice to discuss the rules and to pose questions to the The Committee met twice to discuss the rules and to pose questions to the
Senate Parliamentarian and his assistant, and over two additional days it also heard testimony Senate Parliamentarian and his assistant, and over two additional days it also heard testimony
from Senators regarding the rules.from Senators regarding the rules.
1515 The majority leader wrote a letter to the Rules Committee The majority leader wrote a letter to the Rules Committee
proposing significant changes to the impeachment rules, and the Committee discussed these proposing significant changes to the impeachment rules, and the Committee discussed these
proposed changes as well.proposed changes as well.
16
16
The Rules and Administration Committee reported an original resolution (S.Res. 390, The Rules and Administration Committee reported an original resolution (S.Res. 390,
93rd 93rd Congress) proposing adjustments to 13 of the 26 rules. Of the suggested changes, nearly all were Congress) proposing adjustments to 13 of the 26 rules. Of the suggested changes, nearly all were
meant to clarify the meaning of the rule or to codify what had been the practice in past trials. The meant to clarify the meaning of the rule or to codify what had been the practice in past trials. The
Committee did not recommend any major changes to the rules or report any new rules. As the Committee did not recommend any major changes to the rules or report any new rules. As the
accompanying committee report explained, accompanying committee report explained,
“"there appeared to be a consensus among the there appeared to be a consensus among the
11 The Senate, at the start of the Johnson trial, agreed to correct “a clerical error in the rules” to allow the Senate to take a division or voice vote on a question submitted by the presiding officer, instead of mandating that the vote be by the yeas and nays. See Congressional Globe, “Supplement Containing the Proceedings of Senate Sitting for the Trial of Andrew Johnson, President of the United States,” (hereinafter “Johnson Supplement”) March 13, 1868, p. 7. The Senate also amended Rule VII to settle that the presiding officer could issue an initial ruling on a question, which would then be submitted to the full Senate at the request of any Senator. Some Senators thought the original rule prohibited the presiding officer from ruling at all, and instead required all questions to be submitted to the Senate. (See Congressional Globe, “Johnson Supplement,” March 31, 1868, pp. 59-63.) The third change was to add to then-Rule XXIII (now Rule XXIV) the sentence clarifying that the 15-minute limit on debate on the final question is 15 minutes in total, not 15 minutes on each article. (See Congressional Globe, “Johnson Supplement,” May 7, 1868, p. 409.)
12 George H. Haynes, The Senate of the United States, Reissue of 1938 edition, vol. II (New York: Russell & Russell, 1960), p. 845. In 1912, during the trial of Judge Archbald, a Senator submitted a resolution in legislative session regarding amendments to the impeachment rules that would allow the Judiciary Committee to hear testimony and report findings of facts in future impeachment trials of lower-level officers (Congressional Record, vol. 49 [December, 16, 1912], pp. 698-699). The Senate did not act on the resolution.
13 Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. (Chicago: University of Chicago Press, 200), p. 34; Congressional Record, vol. 79 (May 28, 1935), pp. 8309-8310.
14 S.Res. 370, 93rd Congress. The Senate also referred to the Rules Committee a resolution (S.Res. 371, 93rd Congress) to permit television and radio coverage of the impeachment trial, something that would not otherwise have been permitted in 1974. Senate floor procedures were not televised until 1986.
15 For transcripts of the meetings with the Senate Parliamentarian, see U.S. Congress, Senate Committee on Rules and Administration, Subcommittee on the Standing Rules, Directing the Senate Committee on Rules and Administration To
Study the Senate Rules and Precedents Applicable to Impeachment Trials, Unpublished Transcript, 93rd Cong., 2nd sess., July 31, 1974; and Comparison of Proposed Rules of the Senate of the U.S. When Sitting as a Court of
Impeachment and Present Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials
(hereinafter Comparison of Proposed Rules), Unpublished Transcript, 93rd Cong., 2nd sess., August 1, 1974.
16 For a description of the proposed changes, see Rich Spencer, “Mansfield Offers New Rules for Senate Impeachment Trial,” Boston Globe, July 31, 1974, p. 11. Among the proposals that the Rules Committee did not report were one requiring that the Senate adopt a “clear and convincing” evidence standard and one to allow amendments to articles of impeachment in the Senate if they were authorized by the House.
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Members that for the most part the existing rules should be retained and that amendments thereto Members that for the most part the existing rules should be retained and that amendments thereto
should be proposed only with the most valid justification.should be proposed only with the most valid justification.
”17
"17
The Senate, however, never took up the resolution reported by the Rules Committee in 1974 The Senate, however, never took up the resolution reported by the Rules Committee in 1974
because President Nixon resigned before being impeached by the House. Twelve years later, because President Nixon resigned before being impeached by the House. Twelve years later,
when the House next impeached an officer, the Senate again directed the Rules and when the House next impeached an officer, the Senate again directed the Rules and
Administration Committee to review the rules. The Rules Committee in 1986 recommended the Administration Committee to review the rules. The Rules Committee in 1986 recommended the
changes that had been approved by the committee in 1974, and the Senate agreed to them.changes that had been approved by the committee in 1974, and the Senate agreed to them.
18
18
No further changes have been made to the impeachment rules. The rules, formally titled the No further changes have been made to the impeachment rules. The rules, formally titled the
“"Rules of Procedure and Practice in the Senate When Sitting on the Trial of Impeachments,Rules of Procedure and Practice in the Senate When Sitting on the Trial of Impeachments,
”" are are
printed in the printed in the
Senate Manual as well as in a 1986 Senate document that also describes precedents as well as in a 1986 Senate document that also describes precedents
and practices at an impeachment trial, and practices at an impeachment trial,
Procedure and Guidelines for Impeachment Trials in the
United States Senate.1919
Impeachment Trial Procedures and Practice
Brief Overview
When the Senate conducts an impeachment trial, it does so in a procedural mode that is distinct When the Senate conducts an impeachment trial, it does so in a procedural mode that is distinct
both from legislative session (where bills and resolutions are considered) and from executive both from legislative session (where bills and resolutions are considered) and from executive
session (where nominations and treaties are considered). The differences are significant, but session (where nominations and treaties are considered). The differences are significant, but
precedent does dictate that if the impeachment rules are silent, the regular Standing Rules of the precedent does dictate that if the impeachment rules are silent, the regular Standing Rules of the
Senate, where applicable, may guide proceedings.Senate, where applicable, may guide proceedings.
20
20
The impeachment rules prescribe a series of steps for the start of the trial, which are described The impeachment rules prescribe a series of steps for the start of the trial, which are described
below. The Senate follows these steps to organize itself for the trial and then requests written below. The Senate follows these steps to organize itself for the trial and then requests written
statements from the impeached officer and from the House regarding the charges. The next stage statements from the impeached officer and from the House regarding the charges. The next stage
is the receipt and presentation of evidence, and the impeachment rules provide little guidance is the receipt and presentation of evidence, and the impeachment rules provide little guidance
regarding this process. Actions taken at this stage have varied from trial to trial. Arguments are regarding this process. Actions taken at this stage have varied from trial to trial. Arguments are
made on the Senate floor by House managers (Members of the House selected to prosecute the made on the Senate floor by House managers (Members of the House selected to prosecute the
case in the Senate) and counsel for the impeached officer (an attorney or attorneys who were case in the Senate) and counsel for the impeached officer (an attorney or attorneys who were
chosen by the accused). The Senate could decide to request documents and hear testimony from chosen by the accused). The Senate could decide to request documents and hear testimony from
witnesses, who could receive questions from the House managers, counsel for the impeached witnesses, who could receive questions from the House managers, counsel for the impeached
officer, and Senators.officer, and Senators.
Senators are expected to attend the trial, but their individual participation in open session is Senators are expected to attend the trial, but their individual participation in open session is
limited. They can submit questions in writing—for a witness, House manager, or counsel for the limited. They can submit questions in writing—for a witness, House manager, or counsel for the
impeached officer—but the presiding officer of the trial, not the Senator, reads the question,
17 U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules and Procedure and Practice in
the Senate When Sitting on Impeachment Trials, report to accompany S.Res. 390, 93rd Cong., 2nd sess., August 22, 1974, S.Rpt. 93-1125 (Washington: GPO, 1974), p. 20.
18 U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in
the Senate When Sitting on Impeachment Trials, 99th Cong., 2nd sess., August 13, 1986, S.Rpt. 99-401 (Washington: GPO, 1986); S.Res. 479, 99th Congress, agreed to by voice vote August 16, 1986.
19 U.S. Congress, Senate, Senate Manual, Containing the Standing Rules, Orders, Laws, and Resolutions Affecting the Business of the United States Senate, 117th Cong., 1st sess., S.Doc. 117-1 (Washington: GPO, 2023), pp. 217-225; and U.S. Congress, Senate, Procedure and Guidelines for Impeachment Trials in the United States Senate, prepared pursuant to Senate Resolution 439, 99th Congress, 2nd sess., prepared by Floyd M. Riddick and Robert B. Dove, 99th Cong., 2nd sess., August 15, 1986, S.Doc. 99-33 (Washington: GPO, 1986) (hereinafter Procedure and Guidelines for
Impeachment Trials).
20 Procedure and Guidelines for Impeachment Trials, p. 8.
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impeached officer—but the presiding officer of the trial, not the Senator, reads the question, announcing which Senator posed it. Debate among Senators is not allowed during the trial unless announcing which Senator posed it. Debate among Senators is not allowed during the trial unless
the Senate, by majority vote, goes into closed session, where the length of time each Senator can the Senate, by majority vote, goes into closed session, where the length of time each Senator can
speak is limited. The Senate impeachment rules refer to opportunities for both Senators and the speak is limited. The Senate impeachment rules refer to opportunities for both Senators and the
parties to the case to place proposals before the Senate for a vote; in modern practice, however, parties to the case to place proposals before the Senate for a vote; in modern practice, however,
the Senate has structured the order of considering proposals, either by unanimous consent or by the Senate has structured the order of considering proposals, either by unanimous consent or by
agreeing to a resolution by majority vote.agreeing to a resolution by majority vote.
Votes can occur in open or closed session on procedural questions, such as those that might set Votes can occur in open or closed session on procedural questions, such as those that might set
the schedule for the trial, structure time for arguments and questions, and arrange for witnesses. the schedule for the trial, structure time for arguments and questions, and arrange for witnesses.
In previous trials, the vote on the final question of whether or not to convict has always occurred In previous trials, the vote on the final question of whether or not to convict has always occurred
in open session. Conviction requires a vote of two-thirds of Senators present on any article of in open session. Conviction requires a vote of two-thirds of Senators present on any article of
impeachment.impeachment.
Receipt and Presentation of Articles of Impeachment
The impeachment rules establish a timeline for the Senate to take several actions after it receives The impeachment rules establish a timeline for the Senate to take several actions after it receives
formal notice from the House regarding an impeachment. Specifically, under Impeachment Rule formal notice from the House regarding an impeachment. Specifically, under Impeachment Rule
I, Senate action is triggered by the receipt of notice from the House I, Senate action is triggered by the receipt of notice from the House
“"that managers are that managers are
appointed” and “appointed" and "are directed to carry articles of impeachment to the Senate.are directed to carry articles of impeachment to the Senate.
”21"21 The House, in The House, in
modern practice, first agrees to articles of impeachment in the form of a simple resolution modern practice, first agrees to articles of impeachment in the form of a simple resolution
(H.Res.), and then agrees to another privileged resolution (or sometimes multiple resolutions) that (H.Res.), and then agrees to another privileged resolution (or sometimes multiple resolutions) that
serves to instigate action in the Senate as prescribed by the rule. In this second resolution (or serves to instigate action in the Senate as prescribed by the rule. In this second resolution (or
series of resolutions), the House selects Representatives who serve as series of resolutions), the House selects Representatives who serve as
“"impeachment managers.impeachment managers.
” " These Members of the House will argue the case for impeachment before the Senate. The These Members of the House will argue the case for impeachment before the Senate. The
resolution also grants authority to the House managers to take actions to prepare and conduct the resolution also grants authority to the House managers to take actions to prepare and conduct the
trial in the Senate.trial in the Senate.
2222 Finally, the resolution directs that a message be sent to the Senate to inform Finally, the resolution directs that a message be sent to the Senate to inform
them that managers have been appointed.them that managers have been appointed.
In practice, after receipt of the messages from the House, the following actions take place in the In practice, after receipt of the messages from the House, the following actions take place in the
Senate:Senate:
The SenateSenate, by unanimous consent, establishes a time for the House managers to presentmanagers to present the
articles of impeachment to the Senate. Impeachment Rule I provides that the Impeachment Rule I provides that the
“"Secretary of the Secretary of the
Senate shall immediately inform the House of Representatives that the Senate is ready to receive Senate shall immediately inform the House of Representatives that the Senate is ready to receive
the managers.the managers.
”" Instead of following the letter of the rule, however, the Senate Instead of following the letter of the rule, however, the Senate
usuallyoften reaches a reaches a
unanimous consent agreement that sets a specific time for the Secretary to invite the House unanimous consent agreement that sets a specific time for the Secretary to invite the House
managers to appear.managers to appear.
2323 The time agreed upon in modern trials has been within days of receipt of The time agreed upon in modern trials has been within days of receipt of
21 The language of the rule reflects the 19th century House practice of voting to impeach an officer—and notifying the Senate of this fact—prior to drafting articles of impeachment. Since the 1912 impeachment of Robert W. Archbald (U.S. Circuit Judge, designated as a member of the Commerce Court) the House has included articles of impeachment in the resolution impeaching the officer. On the Archbald impeachment, see Clarence Cannon, Cannon’s Precedents of
the House of Representatives of the United States, (Washington: GPO, 1935), vol. VI, §499.
22 The resolutions, for example, typically allow the House managers to hire clerical and legal assistants, to issue subpoenas, and to file with the Secretary of the Senate requested formal statements, referred to as “pleadings,” which in this context could include a written response to the impeached officer’s answer to the articles and trial briefs. 23 On January 19, 2021, the Senate received a message that the House had impeached the President and that managers were appointed. The majority leader asked pursuant to Impeachment Rule I that the House be informed that the Senate received its message. In this case, there was not a unanimous consent agreement specifying the time for presentation (Congressional Record, daily edition, vol. 167 [January 19, 2021], p. S49). On January 21, the House received a message from the Secretary of the Senate that the Senate was ready to receive managers appointed by the House (Congressional Record, daily edition, vol. 167 [January 21, 2021], p. H209). On January 22, the Senate majority leader announced that the Speaker had informed him that the article would be delivered on Monday, which was the next day (continued...)
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the House message. Scheduling a time is more convenient for all Senators, and these unanimous the House message. Scheduling a time is more convenient for all Senators, and these unanimous
consent agreements have been reached within the context of a rule that appears to require consent agreements have been reached within the context of a rule that appears to require
immediate action.immediate action.
24
A House manager24
A House manager reads the articles of impeachment aloudaloud on the Senate floor, sometimes
sometimes after a live quorum call to bring Senators into the chamber. The impeachment rules require The impeachment rules require
that the articles of impeachment be that the articles of impeachment be
“"exhibited,exhibited,
”" which means read before the Senate. At a time which means read before the Senate. At a time
arranged by unanimous consent, and sometimes after a live quorum call to ascertain the presence arranged by unanimous consent, and sometimes after a live quorum call to ascertain the presence
of Senators, the House managers arrive on the floor of the Senate, are announced by the Secretary of Senators, the House managers arrive on the floor of the Senate, are announced by the Secretary
to the Majority or the Sergeant at Arms, and are escorted by the Sergeant at Arms to seats to the Majority or the Sergeant at Arms, and are escorted by the Sergeant at Arms to seats
assigned to them in front of the Senate rostrum. The presiding assigned to them in front of the Senate rostrum. The presiding
officer25officer25 then directs the Sergeant then directs the Sergeant
at Arms to make a proclamation required by Impeachment Rule II:at Arms to make a proclamation required by Impeachment Rule II:
“
"All persons are commanded to keep silence, on pain of imprisonment, while the House of All persons are commanded to keep silence, on pain of imprisonment, while the House of
Representatives is exhibiting to the Senate of United States articles of impeachment against Representatives is exhibiting to the Senate of United States articles of impeachment against
_____._____.
”
"
A House manager, sometimes the chair of the House Judiciary Committee, then reads the articles A House manager, sometimes the chair of the House Judiciary Committee, then reads the articles
in full before the Senate.in full before the Senate.
2626 The House manager also makes a statement that the House reserves the The House manager also makes a statement that the House reserves the
right to amend the articles of impeachment.right to amend the articles of impeachment.
2727 The presiding officer then announces, again using The presiding officer then announces, again using
language from Impeachment Rule II, that the Senate will language from Impeachment Rule II, that the Senate will
“"take proper order on the subject of take proper order on the subject of
impeachment”impeachment" and notify the House. The House managers then exit the Senate chamber. and notify the House. The House managers then exit the Senate chamber.
Organizing for the Trial
Impeachment Rule III provides that after the articles are presented by the House managers, the Impeachment Rule III provides that after the articles are presented by the House managers, the
Senate will proceed to consider the articles at 1 oSenate will proceed to consider the articles at 1 o
’'clock the next day (unless the next day is a clock the next day (unless the next day is a
Sunday), or sooner if ordered by the Senate. In modern trials, the Senate has Sunday), or sooner if ordered by the Senate. In modern trials, the Senate has
most often taken the taken the
steps necessary to organize for an impeachment trial on the same day that the articles of
the House would be in session (Congressional Record, daily edition, vol. 167 [January 22, 2021], p. S95). On January 25, the House managers delivered and presented the Articles of Impeachment (Congressional Record, daily edition, vol. 167 [January 25, 2021], p. S4124).
24 When the Rules and Administration Committee reviewed the impeachment rules in 1974, a question was raised whether the Secretary of the Senate should be charged with the function of immediately informing the House that the Senate was ready to receive the managers. The Senate Parliamentarian informed the committee that in all prior cases, the Secretary of the Senate had informed the House only after the Senate adopted an order directing him to do so. Some Senators, including the chair, commented that these precedents would be sufficient and a rules change would not be necessary, and the Committee did not recommend a change to the language of the rule. See Comparison of Proposed
Rules, Unpublished Transcript, 93rd Cong., 2nd sess., August 1, 1974, pp. 29-32.
25 At this point, even if the articles of impeachment are against a President of the United States, the presiding officer is the regular presiding officer of the Senate—either the Vice President, the President pro tempore, or an Acting President pro tempore.
26 During the impeachment trial of President Trump in 2020, the articles of impeachment were exhibited by the chair of the House Permanent Select Committee on Intelligence, Representative Adam Schiff (Congressional Record, daily edition, vol. 166 [January 16, 2020], pp. S266-S267). The impeachment inquiry into President Trump was jointly conducted by several committees in the House of Representatives, including the Permanent Select Committee on Intelligence, Committee on Financial Services, Committee on Foreign Affairs, Committee on the Judiciary, Committee on Oversight and Reform, and the Committee on Ways and Means (see H.Res. 660, 116th Congress). During the impeachment trial of President Trump in 2021, the articles of impeachment were presented by Representative Jamie Raskin, a Member of the Judiciary Committee and former professor of constitutional law.
27 U.S. Congress, House, Deschler’s Precedents of the United States House of Representatives, prepared by Lewis Deschler, 94th Cong., 2nd sess., H.Doc. 94-661 (Washington: GPO, 1977) (hereinafter Deschler), chapter 14 §10.1; for recent examples see also Congressional Record, vol. 137 (August 9, 1988), p. 21170, and vol. 156 (March 17, 2010), p. 3622.
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impeachment were read on the floor.28steps necessary to organize for an impeachment trial within a day of the articles of impeachment being read on the floor.28 After the presentation of the articles, the Senate takes the After the presentation of the articles, the Senate takes the
following steps to organize for a trial:following steps to organize for a trial:
The presiding officer of the trial takes the oath of office. The Constitution requires that The Constitution requires that
Senators be Senators be
“"on Oath or Affirmationon Oath or Affirmation
”" when sitting for the purpose of trying an impeachment. when sitting for the purpose of trying an impeachment.
29 29 The Senate developed the practice of first swearing in the presiding officer of the trial, who then The Senate developed the practice of first swearing in the presiding officer of the trial, who then
administers the oath to all Senators.administers the oath to all Senators.
In the case of a presidential impeachment, the Chief Justice acts as presiding officer. In the case of a presidential impeachment, the Chief Justice acts as presiding officer.
Impeachment Rule IV requires that notice be given to the Chief Justice of the time and place of Impeachment Rule IV requires that notice be given to the Chief Justice of the time and place of
the trial. It further provides that the Chief Justice is to be administered the oath by the the trial. It further provides that the Chief Justice is to be administered the oath by the
“"presiding presiding
officer of the Senate.officer of the Senate.
”30"30 The Chief Justice takes the same oath as the Senators (see below for The Chief Justice takes the same oath as the Senators (see below for
text). Although the Vice President of the United States, as President of the Senate, could act as text). Although the Vice President of the United States, as President of the Senate, could act as
presiding officer of the Senate and administer the oath to the Chief Justice, in the trials of presiding officer of the Senate and administer the oath to the Chief Justice, in the trials of
President Clinton and President Trump (2020), the President pro tempore of the Senate President Clinton and President Trump (2020), the President pro tempore of the Senate
administered the oath to the Chief Justice. In both of those trials, the Senate also agreed by administered the oath to the Chief Justice. In both of those trials, the Senate also agreed by
unanimous consent that a bipartisan group of Senators escort the Chief Justice to the dais.unanimous consent that a bipartisan group of Senators escort the Chief Justice to the dais.
3131
Senators are administered the oath of office. The presiding officer of the trial administers the The presiding officer of the trial administers the
following oath to Senators, as provided in Impeachment Rule XXV:following oath to Senators, as provided in Impeachment Rule XXV:
[Do you] solemnly swear (or affirm, as the case may be) that in all things appertaining to [Do you] solemnly swear (or affirm, as the case may be) that in all things appertaining to
the trial of the impeachment of____, now pending, [you] will do impartial justice according the trial of the impeachment of____, now pending, [you] will do impartial justice according
to the Constitution and laws: So help [you] God.to the Constitution and laws: So help [you] God.
In modern practice, the presiding officer asks all Senators, who are standing at their desks, to In modern practice, the presiding officer asks all Senators, who are standing at their desks, to
raise their right hands as he reads the oath, and Senators respond, all together, raise their right hands as he reads the oath, and Senators respond, all together,
“"I do.I do.
”" Senators Senators
also sign an official oath book, which serves as the permanent record of the administration of the also sign an official oath book, which serves as the permanent record of the administration of the
oath. Senators are required to take the oath before participating in the trial, and Senators who oath. Senators are required to take the oath before participating in the trial, and Senators who
might be absent at the time the oath is administered might be absent at the time the oath is administered
en masse inform the presiding officer as soon inform the presiding officer as soon
as possible so that they can take the oath separately.as possible so that they can take the oath separately.
At this point, any Senator wishing to be excused from participating in the trial could ask to be At this point, any Senator wishing to be excused from participating in the trial could ask to be
excused from this service. In the past, the Senate has excused Senators from service in an excused from this service. In the past, the Senate has excused Senators from service in an
impeachment trial only at their request.impeachment trial only at their request.
32 32
The Senate issues a “summons” and requests an “answer” "summons" and requests an "answer" from the impeached official and a "replication" and
a “replication” (or response) from the House managers.managers. It is a necessary early step of an It is a necessary early step of an
impeachment trial that the impeached officer be informed of the charges through an official
28 In the second impeachment trial of President Trump, after the presentation of the article of impeachment by the House managers, the Senate agreed by unanimous consent that the Senate proceed to the consideration of the article the next day at 2:30 p.m. (Congressional Record, daily edition, vol. 167 [January 25, 2021], p. S125).
29 Article I, Section 3, Clause 6. 30 This provision of the impeachment rules was added in response to the Chief Justice, in 1868, bringing an associate justice to administer the oath to him. U.S. Congress, Senate Committee on Rules and Administration, Amending the
Rules and Procedure and Practice in the Senate When Sitting on Impeachment Trials, 93rd Cong., 2nd sess., August 22, 1974, 93-1125 (Washington: GPO, 1974), pp. 28-29; and Amending the Rules of Procedure and Practice in the Senate
When Sitting on Impeachment Trials, 99th Cong., 2nd sess., August 13, 1986, 99-401 (Washington: GPO, 1986), pp. 3-4.
31 The second impeachment trial of President Trump began after the President had left office, and the Chief Justice did not preside.
32 Procedure and Guidelines for Impeachment Trials, pp. 76-77. For example, the Senate has granted requests of Senators to be excused for reasons of having a personal connection with the impeached officer (Congressional Record, vol. 80 [March 12, 1936], p. 3646) and for having been in the House the previous Congress when the House voted to impeach (Congressional Record, vol. 135 [March 15, 1989], p. 4220, and [December 7, 2010], p. 19012).
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impeachment trial that the impeached officer be informed of the charges through an official process. Impeachment Rule VIII states that after the articles have been presented and the Senate process. Impeachment Rule VIII states that after the articles have been presented and the Senate
has organized for a trial, has organized for a trial,
“"…a writ of summons shall issue to the person impeached……a writ of summons shall issue to the person impeached…
”" The The
Senate accomplishes this by agreeing to an Senate accomplishes this by agreeing to an
“order”"order" directing that a summons be issued. directing that a summons be issued.
Impeachment Rule XXV provides the language of the summons, which, in accordance with Rule Impeachment Rule XXV provides the language of the summons, which, in accordance with Rule
VIII, includes the articles of impeachment.VIII, includes the articles of impeachment.
3333 In modern practice, the Senate has agreed to these In modern practice, the Senate has agreed to these
orders in the form of a resolution or unanimous consent agreement.orders in the form of a resolution or unanimous consent agreement.
The Senate, when it adopts an order for a summons, also directs the accused official to file a The Senate, when it adopts an order for a summons, also directs the accused official to file a
written answer to the articles of impeachment. The Senate determines the date by which this written answer to the articles of impeachment. The Senate determines the date by which this
answer must be filed. Under long-standing practice, the Senate also sets a date by which the answer must be filed. Under long-standing practice, the Senate also sets a date by which the
House managers can file a formal written response to the impeached officerHouse managers can file a formal written response to the impeached officer
’'s answer—which is s answer—which is
called a called a
“replication”"replication"—with the Senate. The length of time the Senate provides for the impeached —with the Senate. The length of time the Senate provides for the impeached
officer to file an answer and for the House managers to file a replication has varied in modern officer to file an answer and for the House managers to file a replication has varied in modern
practice, from a few days to several weeks.practice, from a few days to several weeks.
34
34
An order or resolution regarding the summons and replication is not subject to debate, pursuant to An order or resolution regarding the summons and replication is not subject to debate, pursuant to
Impeachment Rule XXIV, but is subject to amendment. The order or resolution can be approved Impeachment Rule XXIV, but is subject to amendment. The order or resolution can be approved
by a majority of Senators voting, a quorum being present.by a majority of Senators voting, a quorum being present.
On the day that the Senate majority has established for the return of the summons, Impeachment On the day that the Senate majority has established for the return of the summons, Impeachment
Rule IX provides that the Senate convene the trial at 12:30 p.m. The officer who served the Rule IX provides that the Senate convene the trial at 12:30 p.m. The officer who served the
summons (typically the Sergeant at Arms under Impeachment Rule VI) swears an oath, summons (typically the Sergeant at Arms under Impeachment Rule VI) swears an oath,
administered by the Secretary of the Senate, that the service was performed.administered by the Secretary of the Senate, that the service was performed.
Other administrative and organizationalorganizational decisions. Impeachment Rule VII states that Impeachment Rule VII states that
“"The The
presiding officer of the Senate shall direct all necessary preparations in the Senate Chamber.presiding officer of the Senate shall direct all necessary preparations in the Senate Chamber.
” " Note that this is the regular presiding officer of the Senate, as these arrangements could be made Note that this is the regular presiding officer of the Senate, as these arrangements could be made
in advance of the trial.in advance of the trial.
In practice, the Senate, through a unanimous consent agreement or a resolution, makes decisions In practice, the Senate, through a unanimous consent agreement or a resolution, makes decisions
regarding such matters as staff access to the floor and the placement of furniture and equipment in regarding such matters as staff access to the floor and the placement of furniture and equipment in
the well to be used for trial presentations. The Senate might take such actions in legislative the well to be used for trial presentations. The Senate might take such actions in legislative
session before the trial, or the actions could be taken shortly after the Senate convenes for the session before the trial, or the actions could be taken shortly after the Senate convenes for the
trial.trial.
For example, in the Clinton impeachment trial, the Senate agreed to guidelines specifying which For example, in the Clinton impeachment trial, the Senate agreed to guidelines specifying which
Senate staff with official impeachment duties would have access to the floor. It did so by Senate staff with official impeachment duties would have access to the floor. It did so by
unanimous consent in legislative session before the start of the trial. Additional unanimous
33 Impeachment Rule VIII, which is reflected in the form of the summons in Impeachment Rule XXV, states that the person impeached shall be notified to appear before the Senate at a set day and time. It is not necessary that the impeached officer personally appear, however. Impeachment Rule X states that the person impeached shall be called to appear to answer the articles, and that, “if he appears, or any person for him, the appearance shall be recorded, stating particularly if by himself, or by agent or attorney”—provisions permitting the accused to be represented by another person. While impeached judges have attended their trials on the Senate floor, including in the 1980s, neither President Johnson nor President Clinton attended their impeachment trials.
34 For example, on January 21, 2021, in the second impeachment of President Trump, the Senate agreed to S.Res. 16 which required that a summons be issued and an answer be filed by noon on February 2 and the replication by House managers be filed by noon February 8. On January 16, 2020, in the first impeachment trial of President Trump, the Senate agreed by unanimous consent to issue a summons and require an answer to be filed by 6 p.m. on January 18, with the replication by House managers to be filed by noon on January 20 (Congressional Record, daily edition, vol. 166 [January 16, 2020], p. S268). On January 8, 1999, in the impeachment trial of President Clinton, the Senate agreed to a resolution (S.Res. 16) requiring that an answer to the summons be filed by noon on January 11 and the replication of the House managers be filed by noon on January 13. On August 14, 1986, in the impeachment trial of Judge Harry Claiborne, the Senate agreed to a resolution (S.Res. 480) requiring that an answer be filed no later than September 8 and the replication no later than September 15.
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unanimous consent in legislative session before the start of the trial. Additional unanimous consent agreements granted privileges of the floor to the counsel and assistants to counsel for the consent agreements granted privileges of the floor to the counsel and assistants to counsel for the
President, as well as to assistants to the Chief Justice and to the House managers. The Senate also, President, as well as to assistants to the Chief Justice and to the House managers. The Senate also,
by unanimous consent, established a method for allocating tickets to the Senate gallery.by unanimous consent, established a method for allocating tickets to the Senate gallery.
3535 The The
Senate followed similar procedures for the impeachment trials of President Trump.Senate followed similar procedures for the impeachment trials of President Trump.
3636
Determining Trial Proceedings: Orders of the Senate
Process for Agreeing to an “"Organizing Resolution”" for the Trial
While the previously identified steps have occurred, with minor variations, in every Senate While the previously identified steps have occurred, with minor variations, in every Senate
impeachment trial, actions subsequent to organization have varied considerably. To establish impeachment trial, actions subsequent to organization have varied considerably. To establish
impeachment trial procedures, the Senate could reach unanimous consent agreements or, at least impeachment trial procedures, the Senate could reach unanimous consent agreements or, at least
according to the Impeachment Rules and earlier Senate practice, vote on propositions offered by according to the Impeachment Rules and earlier Senate practice, vote on propositions offered by
Senators, House managers, or counsel for the impeached officer. When adopted, these procedural Senators, House managers, or counsel for the impeached officer. When adopted, these procedural
agreements are referred to as agreements are referred to as
“orders”"orders" of the Senate. of the Senate.
In the modern impeachment trials that were conducted without a committee, to establish trial In the modern impeachment trials that were conducted without a committee, to establish trial
procedures, the majority leader presented a resolution shortly after the Senate organized for the procedures, the majority leader presented a resolution shortly after the Senate organized for the
trial. This resolution, referred to by some as an trial. This resolution, referred to by some as an
“"organizing resolutionorganizing resolution
”" for the trial, could be for the trial, could be
agreed to with the support of a simple majority. Impeachment Rule XXIV contains the provision agreed to with the support of a simple majority. Impeachment Rule XXIV contains the provision
that, when the Senate is convened to conduct a trial, that, when the Senate is convened to conduct a trial,
“"orders and decisionsorders and decisions
”" of the Senate shall be of the Senate shall be
voted on voted on
“"without debate.without debate.
”" This prohibition on debate by Senators applies when the Senate trial is This prohibition on debate by Senators applies when the Senate trial is
meeting in open session; if a majority of Senators wished to discuss a proposed order, they could meeting in open session; if a majority of Senators wished to discuss a proposed order, they could
agree to do so in closed session, and in that forum each Senator would be limited to speaking only agree to do so in closed session, and in that forum each Senator would be limited to speaking only
once, and for a maximum of 10 minutes. (See once, and for a maximum of 10 minutes. (See
“"Closed Deliberations by SenatorsClosed Deliberations by Senators
”" section below.) section below.)
Impeachment Rule XXI provides further that Impeachment Rule XXI provides further that
“"all preliminary or interlocutory questions, and all all preliminary or interlocutory questions, and all
motions, shall be argued for not exceeding one hour (unless the Senate otherwise orders) on each motions, shall be argued for not exceeding one hour (unless the Senate otherwise orders) on each
side,side,
”" meaning that the Senate could hear arguments from House managers and counsel for the meaning that the Senate could hear arguments from House managers and counsel for the
impeached on procedural proposals for up to two hours.impeached on procedural proposals for up to two hours.
In contrast, under the regular rules of the Senate, most matters are not subject to any debate In contrast, under the regular rules of the Senate, most matters are not subject to any debate
restrictions. As a result, a cloture process—requiring the support of three-fifths of the Senate on restrictions. As a result, a cloture process—requiring the support of three-fifths of the Senate on
legislation and most other items—is sometimes necessary to end debate and reach a vote.legislation and most other items—is sometimes necessary to end debate and reach a vote.
3737 It is It is
for this reason that the support of three-fifths of the Senate (or 60 Senators, assuming no more for this reason that the support of three-fifths of the Senate (or 60 Senators, assuming no more
than one vacancy) is usually considered to be necessary for the Senate to reach a decision that than one vacancy) is usually considered to be necessary for the Senate to reach a decision that
cannot be reached by consensus.cannot be reached by consensus.
The limits on debate when the Senate is sitting for an impeachment trial, however, allow the The limits on debate when the Senate is sitting for an impeachment trial, however, allow the
Senate to reach decisions without the threat of a filibuster. Without the need for cloture, most Senate to reach decisions without the threat of a filibuster. Without the need for cloture, most
questions voted on during a Senate impeachment trial can be approved with the support of a
35 Congressional Record, daily edition, vol. 145 (January 6, 1999), pp. S7-S8. 36 Congressional Record, daily edition, vol. 167 (February 8, 2021), p. S588 and Congressional Record, daily edition, vol. 166 (January 15, 2020), p. S235. Unlike the Clinton impeachment trial, for which ticket allocation was agreed to on the floor by unanimous consent, it appears that ticketing for the 2020 Trump impeachment trial was the result of an agreement between the majority and minority leaders (see “Dear Colleague” letter from Mitch McConnell, Majority Leader, and Charles E. Schumer, Democratic Leader, January 15, 2020, https://www.cnn.com/2020/01/15/politics/dear-colleague-senate-impeachment-trial/index.html).
37 A majority of Senators voting, a quorum being present, can invoke cloture on a nomination, and two-thirds of Senators voting, a quorum being present, is necessary to invoke cloture on a proposal amending Senate rules. For more information on cloture, see CRS Report RL30360, Filibusters and Cloture in the Senate, by Valerie Heitshusen and Richard S. Beth.
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questions voted on during a Senate impeachment trial can be approved with the support of a majority of Senators voting. The major exception to this, of course, is that conviction requires the majority of Senators voting. The major exception to this, of course, is that conviction requires the
support of two-thirds of Senators present.support of two-thirds of Senators present.
38
38
Because cloture is not required, a Senate majority can agree to orders that affect the proceedings Because cloture is not required, a Senate majority can agree to orders that affect the proceedings
in a trial. However, absent unanimous consent, the Senate will not necessarily reach a vote in a trial. However, absent unanimous consent, the Senate will not necessarily reach a vote
quickly. Orders proposed by Senators are subject to amendment offered by other Senators.quickly. Orders proposed by Senators are subject to amendment offered by other Senators.
39 39 Furthermore, as mentioned previously, orders and their amendments are each potentially subject Furthermore, as mentioned previously, orders and their amendments are each potentially subject
to two hours total of debate, equally divided between the House managers and counsel to the to two hours total of debate, equally divided between the House managers and counsel to the
accused. For example, during the first impeachment trial of President Trump, the minority leader accused. For example, during the first impeachment trial of President Trump, the minority leader
offered 11 amendments to the majority leaderoffered 11 amendments to the majority leader
’'s resolution (S.Res. 483) to establish trial s resolution (S.Res. 483) to establish trial
procedures.procedures.
4040 Amendments cannot be offered to the resolution until the two hours of debate on the Amendments cannot be offered to the resolution until the two hours of debate on the
resolution have been used or yielded back, and a motions to table an amendment cannot be resolution have been used or yielded back, and a motions to table an amendment cannot be
offered until the two hours of debate on the amendment have been used or yielded back.offered until the two hours of debate on the amendment have been used or yielded back.
Furthermore, in past trialsFurthermore, in past trials
, Senators have demanded the division of an Senators have demanded the division of an
“"order,order,
”" and the division of and the division of
amendments to an order, that contained substantive, separate directions for a trial. Under regular amendments to an order, that contained substantive, separate directions for a trial. Under regular
Senate procedures, both amendments and resolutions containing separate provisions are Senate procedures, both amendments and resolutions containing separate provisions are
susceptible to division.susceptible to division.
4141 If any single Senator demanded a division, each provision would be If any single Senator demanded a division, each provision would be
considered separately for amendment and voted upon.considered separately for amendment and voted upon.
If all Senators are voting, the majority necessary to approve an order of the Senate is 51 Senators; If all Senators are voting, the majority necessary to approve an order of the Senate is 51 Senators;
tie votes fail in the Senate.tie votes fail in the Senate.
4242 If all Senators are not voting, however, this number changes. The If all Senators are not voting, however, this number changes. The
vote necessary for approval is a majority of those voting, assuming a quorum is present. The vote necessary for approval is a majority of those voting, assuming a quorum is present. The
quorum required for an impeachment trial is 51 Senators—the same as in regular Senate quorum required for an impeachment trial is 51 Senators—the same as in regular Senate
proceedings.proceedings.
4343 During impeachment trials, however, the party leaders often implore Senators to During impeachment trials, however, the party leaders often implore Senators to
attend all sessions, and committee meetings are unlikely to be scheduled during times the Senate attend all sessions, and committee meetings are unlikely to be scheduled during times the Senate
is expected to be sitting for the trial. This is due to past criticisms of the Senate for light is expected to be sitting for the trial. This is due to past criticisms of the Senate for light
attendance at trials when evidence was presented, including from counsel of impeached officers attendance at trials when evidence was presented, including from counsel of impeached officers
who feel Senators must be present to listen to arguments before they vote.who feel Senators must be present to listen to arguments before they vote.
Content of an “"Organizing Resolution”" for the Trial
There is little guidance in Senate published precedents as to what constitutes a proper There is little guidance in Senate published precedents as to what constitutes a proper
“order”"order" that that
is eligible to be called up expeditiously and decided by majority vote during an impeachment is eligible to be called up expeditiously and decided by majority vote during an impeachment
trial. The impeachment rules mention several rules that could be altered by an trial. The impeachment rules mention several rules that could be altered by an
“order”"order": the time : the time
the Senate meets for the first day of the trial (Rule XII), and other days of meeting thereafter the Senate meets for the first day of the trial (Rule XII), and other days of meeting thereafter
(Rule XIII); the length of time for the House managers and counsel for the impeached officer to (Rule XIII); the length of time for the House managers and counsel for the impeached officer to
argue propositions before the Senate (Rule XXI); the number of people who may make opening argue propositions before the Senate (Rule XXI); the number of people who may make opening
and closing arguments (Rule XXII); and who may serve a summons (Rule XXV). Impeachment and closing arguments (Rule XXII); and who may serve a summons (Rule XXV). Impeachment
Rule XXVI permits the Senate to adopt a non-debatable order to fix the date and time for Rule XXVI permits the Senate to adopt a non-debatable order to fix the date and time for
considering articles, even if it had missed a previously scheduled meeting. Impeachment Rule XI,
38 Some other motions that might be made during an impeachment trial, such as a motion to suspend the Standing Rules of the Senate, require a two-thirds vote.
39 Procedure and Guidelines for Impeachment Trials, p. 35. 40 It took the Senate approximately 13 hours to hear debate and vote on all 11 amendments before voting along party lines to adopt the resolution, 53-47. Congressional Record, daily edition, vol. 166 (January 21, 2020), pp. S377-S431.
41 Riddick’s Senate Procedure, pp. 807-808. 42 In impeachment trials other than for a President, when the Vice President is presiding, the Vice President can vote to break ties. See section below, “Senate Interpretation of the Impeachment Rules and the Role of the presiding officer.” 43 Procedure and Guidelines for Impeachment Trials, p. 69. The quorum requirement is also enforced using the same procedures used in legislative or executive session (Riddick’s Senate Procedure, p. 873).
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considering articles, even if it had missed a previously scheduled meeting. Impeachment Rule XI, which, as noted above, the Senate approved in 1935 to allow the use of committees to receive which, as noted above, the Senate approved in 1935 to allow the use of committees to receive
evidence, also states such committees can be created by order.evidence, also states such committees can be created by order.
The Senate, however, while sitting for an impeachment trial, has agreed to many other orders that The Senate, however, while sitting for an impeachment trial, has agreed to many other orders that
are not directly mentioned in the impeachment rules. During the Clinton trial in the are not directly mentioned in the impeachment rules. During the Clinton trial in the
106th 106th Congress, for example, the Senate agreed to S.Res. 16 and S.Res. 30, which structured most Congress, for example, the Senate agreed to S.Res. 16 and S.Res. 30, which structured most
aspects of proceedings by establishing deadlines for filings, allotting time for arguments, and aspects of proceedings by establishing deadlines for filings, allotting time for arguments, and
making certain motions in order at specific points in the trial. In 2020, the Senate agreed to two making certain motions in order at specific points in the trial. In 2020, the Senate agreed to two
resolutions for the Trump trial, S.Res. 483 and S.Res. 488, that likewise addressed many aspects resolutions for the Trump trial, S.Res. 483 and S.Res. 488, that likewise addressed many aspects
of proceedings, including specifying when motions permitted under the impeachment rules could of proceedings, including specifying when motions permitted under the impeachment rules could
be offered. In 2021, the Senate agreed to S.Res. 47, which set the procedures for the trial, be offered. In 2021, the Senate agreed to S.Res. 47, which set the procedures for the trial,
including providing time for opening arguments, for presentations by each side, and for Senators including providing time for opening arguments, for presentations by each side, and for Senators
to submit questions. Thus, based on Senate practice, it appears that to submit questions. Thus, based on Senate practice, it appears that
“orders”"orders" of the Senate during of the Senate during
impeachment trials can affect many more procedures than those specifically delineated in the impeachment trials can affect many more procedures than those specifically delineated in the
impeachment rules. Senate precedents, however, might limit what can be included in such an impeachment rules. Senate precedents, however, might limit what can be included in such an
order.order.
44
44
In the absence of broad agreement regarding how to proceed with a trial, Senators might contest In the absence of broad agreement regarding how to proceed with a trial, Senators might contest
the inclusion of particular provisions of an order—for example, those that appear to be in direct the inclusion of particular provisions of an order—for example, those that appear to be in direct
conflict with the impeachment rules or past practice, or those that Senators argue are conflict with the impeachment rules or past practice, or those that Senators argue are
unconstitutional. While Senators can be expected to consult the precedents for guidance, unconstitutional. While Senators can be expected to consult the precedents for guidance,
ultimately a Senate majority will decide these questions, using the process for interpreting ultimately a Senate majority will decide these questions, using the process for interpreting
procedures discussed below.procedures discussed below.
Consideration and Collection of Evidence
The actions taken by the Senate to consider and collect evidence in each trial have varied The actions taken by the Senate to consider and collect evidence in each trial have varied
considerably. The impeachment rules provide guidance only on a few particulars, necessitating considerably. The impeachment rules provide guidance only on a few particulars, necessitating
that the Senate determine, each time it organizes for a trial, the manner of proceeding from that that the Senate determine, each time it organizes for a trial, the manner of proceeding from that
point forward.point forward.
It is therefore not possible to describe, in the same manner as above, the parliamentary steps the It is therefore not possible to describe, in the same manner as above, the parliamentary steps the
Senate is expected to take to consider evidence in a trial. This section instead reviews the Senate is expected to take to consider evidence in a trial. This section instead reviews the
impeachment rules related to this stage of the trial, how these rules have been interpreted, and impeachment rules related to this stage of the trial, how these rules have been interpreted, and
how their terms have been modified in past practice. Because in most modern trials the Senate how their terms have been modified in past practice. Because in most modern trials the Senate
has relied on a trial committee to consider and collect evidence, it then describes how these has relied on a trial committee to consider and collect evidence, it then describes how these
committees are established and some of their practices.committees are established and some of their practices.
What the Impeachment Rules Provide
Opening and Closing Arguments by the House Managers and Counsel for the
Impeached Officer
During an impeachment trial in the Senate, Senators spend most of the time listening to During an impeachment trial in the Senate, Senators spend most of the time listening to
arguments presented by the House managers and the counsel for the impeached officer. arguments presented by the House managers and the counsel for the impeached officer.
44 It is possible that some precedents of the Senate could inform what can be included in an order or resolution affecting trial procedures. For example, in a ruling during the 1999 trial of President Clinton, the Chief Justice stated that there “can be no deliberation on any question before the Senate in open session unless the Senate suspends its rules, or consent is granted” (Congressional Record, daily edition, vol. 145 [February 9, 1999], p. S1387). If taken literally, this ruling could mean that the Senate could not, by “order of the Senate,” open deliberations, but instead would need unanimous consent or a two-thirds vote to suspend the rules.
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Impeachment Rule XV states that counsel for the parties “Impeachment Rule XV states that counsel for the parties "shall be admitted to appear and be shall be admitted to appear and be
heard upon an impeachment.heard upon an impeachment.
”
"
The impeachment rules further reference both opening and closing arguments that would be made The impeachment rules further reference both opening and closing arguments that would be made
by the parties to the case. Specifically, Impeachment Rule XXII states that the House of by the parties to the case. Specifically, Impeachment Rule XXII states that the House of
Representatives will provide opening remarks first, followed by the counsel for the impeached. It Representatives will provide opening remarks first, followed by the counsel for the impeached. It
also provides that the case shall be opened also provides that the case shall be opened
“"by one personby one person
”" on each side, but in practice opening on each side, but in practice opening
remarks have been divided among multiple managers and multiple counsel for the impeached.remarks have been divided among multiple managers and multiple counsel for the impeached.
With regard to closing arguments, Rule XXII provides that the House managers will speak last, With regard to closing arguments, Rule XXII provides that the House managers will speak last,
and permits two House managers and two people for the impeached officer to make closing and permits two House managers and two people for the impeached officer to make closing
arguments. The number of individuals allowed to participate in closing arguments has been arguments. The number of individuals allowed to participate in closing arguments has been
modified in past trials by order of the Senate.modified in past trials by order of the Senate.
The impeachment rules do not place a time limit on opening and closing statements, although in The impeachment rules do not place a time limit on opening and closing statements, although in
past trials the Senate has agreed to place such limits on the parties.past trials the Senate has agreed to place such limits on the parties.
4545 The Senate has also allowed The Senate has also allowed
the side speaking first to reserve time for rebuttal.the side speaking first to reserve time for rebuttal.
Arguments by the House Managers and Counsel for the Impeached Officer on
Questions and Motions
Impeachment Rule XXI limits the time for arguments that can be made during the trial on any Impeachment Rule XXI limits the time for arguments that can be made during the trial on any
“questions” or “motions”"questions" or "motions" that might arise to one hour on each side, unless otherwise ordered by that might arise to one hour on each side, unless otherwise ordered by
the Senate.the Senate.
The impeachment rules provide no guidance regarding what particular questions or motions can The impeachment rules provide no guidance regarding what particular questions or motions can
be raised by the parties to the case. Rule XVI simply requires that all such motions (and be raised by the parties to the case. Rule XVI simply requires that all such motions (and
“"objections, requests, or applicationsobjections, requests, or applications
”") should be addressed to the presiding officer and put in ) should be addressed to the presiding officer and put in
writing if demanded by any Senator or the presiding officer.writing if demanded by any Senator or the presiding officer.
4646 Examples of questions that have Examples of questions that have
been argued pursuant to this rule include, from the 1868 trial of President Johnson, a motion by been argued pursuant to this rule include, from the 1868 trial of President Johnson, a motion by
the defense that the trial be postponed for 40 days to allow for preparation of the answer to the the defense that the trial be postponed for 40 days to allow for preparation of the answer to the
articles of impeachment and, from the 1936 trial of Judge Ritter, a motion by the counsel for the articles of impeachment and, from the 1936 trial of Judge Ritter, a motion by the counsel for the
impeached to strike an article deemed repetitive.impeached to strike an article deemed repetitive.
4747 In general, in past trials, the Senate has In general, in past trials, the Senate has
controlled, through the adoption of orders, what propositions can be placed before the body and controlled, through the adoption of orders, what propositions can be placed before the body and
voted on while it is sitting for an impeachment trial.voted on while it is sitting for an impeachment trial.
The impeachment rules do not address which side speaks first on questions and motions, but it is The impeachment rules do not address which side speaks first on questions and motions, but it is
by practice the side proposing the motion. The Senate has altered the time available for such by practice the side proposing the motion. The Senate has altered the time available for such
arguments by unanimous consent or other order of the Senate.arguments by unanimous consent or other order of the Senate.
4848 The side speaking first has asked The side speaking first has asked
45 For a review of orders the Senate agreed to affecting final arguments between 1868 and 1986, see Procedure and
Guidelines for Impeachment Trials, p. 37.
46 The impeachment rules also do not make clear whether Senators, rather than the parties to the case, could make such motions that would then be argued by each side for one hour. In the President Clinton trial, a Senator offered a motion in relation to a motion that had been offered by the House managers, and the Chief Justice stated, “The Parliamentarian advises me that there are 2 hours of argument on this motion.” By unanimous consent, the time was yielded back. (See Congressional Record, daily edition, vol. 145 [February 4, 1999], p. S1209.)
47 Supplement to the Congressional Globe Containing the Proceedings of the Senate Sitting for the Trial of Andrew
Johnson, 40th Cong. 2nd sess. (Washington: F&J Rives & George A. Bailey, 1868), March 13, 1868, p. 6; and Congressional Record, vol. 80 (March 31, 1936), p. 4656.
48 For example, during the President Clinton impeachment trial, the Senate established in S.Res. 16 that a motion to subpoena witnesses or present evidence not in the record was in order and debatable by the trial parties for up to six hours equally divided. The Senate later reduced that debate time to four hours by unanimous consent.
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to reserve time for rebuttal. The parties to the case can choose to yield back some or all of the to reserve time for rebuttal. The parties to the case can choose to yield back some or all of the
time allowed for debate.time allowed for debate.
It is important to note that there appears to be a distinction between motions filed and argued by It is important to note that there appears to be a distinction between motions filed and argued by
the parties to the case in an impeachment trial, and motions offered by Senators. When House the parties to the case in an impeachment trial, and motions offered by Senators. When House
managers or counsel for an impeached officer propose a managers or counsel for an impeached officer propose a
“"motion,motion,
”" they are requesting that the they are requesting that the
Senate reach a judgement (perhaps by agreeing to an order on the subject). They are not Senate reach a judgement (perhaps by agreeing to an order on the subject). They are not
necessarily forcing Senate action on their proposal as written. During an impeachment trial, the necessarily forcing Senate action on their proposal as written. During an impeachment trial, the
Senate, at least in modern practice, has generally controlled when and what motions are proposed Senate, at least in modern practice, has generally controlled when and what motions are proposed
before the full Senate by the parties to the case, and it also determines the method of responding before the full Senate by the parties to the case, and it also determines the method of responding
to such motions (which might not be a direct vote on the question).to such motions (which might not be a direct vote on the question).
For example, in the 2010 trial of Judge Porteous, counsel for the impeached filed three motions For example, in the 2010 trial of Judge Porteous, counsel for the impeached filed three motions
that were argued by the parties to the case: a motion to dismiss Article 1, a motion to dismiss that were argued by the parties to the case: a motion to dismiss Article 1, a motion to dismiss
Article 2, and a motion to dismiss all articles because they aggregated multiple charges.Article 2, and a motion to dismiss all articles because they aggregated multiple charges.
4949 The The
Senate heard arguments from each side (pursuant to a unanimous consent agreement that limited Senate heard arguments from each side (pursuant to a unanimous consent agreement that limited
arguments on all motions to two hours, equally divided) and deliberated in closed session. When arguments on all motions to two hours, equally divided) and deliberated in closed session. When
the Senate reconvened in open session, rather than act directly on the propositions as presented, the Senate reconvened in open session, rather than act directly on the propositions as presented,
the majority leader moved to hold preliminary votes on individual allegations within the the majority leader moved to hold preliminary votes on individual allegations within the
articles.articles.
5050 This motion was defeated 94-0. Effectively, it served as a response to the three motions This motion was defeated 94-0. Effectively, it served as a response to the three motions
filed by the defense and argued by the parties to the case.filed by the defense and argued by the parties to the case.
51
51
In another modern example, the Senate heard arguments by the parties, under the terms of a In another modern example, the Senate heard arguments by the parties, under the terms of a
unanimous consent agreement, regarding a motion by the impeached officer that Impeachment unanimous consent agreement, regarding a motion by the impeached officer that Impeachment
Rule XI, allowing the creation of a trial committee, was unconstitutional and that there be a full Rule XI, allowing the creation of a trial committee, was unconstitutional and that there be a full
and free trial before the Senate and witnesses be subpoenaed for that purpose. After deliberating and free trial before the Senate and witnesses be subpoenaed for that purpose. After deliberating
in closed session, the Senate returned to open session and the majority leader moved that the in closed session, the Senate returned to open session and the majority leader moved that the
Senate not hear additional witnesses in the case.Senate not hear additional witnesses in the case.
5252 The motion was agreed to 61-32 ( The motion was agreed to 61-32 (
7seven Senators Senators
not voting), and served as a response to the arguments by counsel for the impeached officer that not voting), and served as a response to the arguments by counsel for the impeached officer that
the full Senate, not the trial committee, should receive evidence.the full Senate, not the trial committee, should receive evidence.
5353
Motions or Orders Offered by Senators Are Not Debatable in Open Session and
Are Acted upon Without Objection or by the Yeas and the Nays
Impeachment Rule XXIV refers to Impeachment Rule XXIV refers to
“"orders and decisionsorders and decisions
”" of the Senate, which in practice have of the Senate, which in practice have
been proposed by Senators, not by the parties to the case. As discussed above, such been proposed by Senators, not by the parties to the case. As discussed above, such
“orders”"orders" are are
sometimes offered in the form of resolutions. In impeachment trials, however, it appears that such sometimes offered in the form of resolutions. In impeachment trials, however, it appears that such
resolutions were proposed as if they were motions and were not subject to layover requirements, resolutions were proposed as if they were motions and were not subject to layover requirements,
or taken up by a motion to proceed, which is the usual way that the Senate would process a or taken up by a motion to proceed, which is the usual way that the Senate would process a
resolution. Impeachment Rule XIX requires any motion or order proposed by a Senator (except a resolution. Impeachment Rule XIX requires any motion or order proposed by a Senator (except a
motion to adjourn) be in writing and put by the presiding officer.
49 Counsel to Judge Porteous argued that the aggregation of multiple charges in one article of impeachment prevented the Senate from stand-alone judgment on individual charges and made it easier to secure votes towards conviction (Congressional Record daily edition, vol. 156 [December 7, 2010], pp. S8564-S8565).
50 Such votes would necessarily be “preliminary,” because an article of impeachment is not divisible. See the section below, “Voting on Articles of Impeachment.” 51 Congressional Record, vol. 156 (December 8, 2010), p. 19012-3 (for description of motions filed by the defense) and (December 9, 2010), p. 19133-4 (for motion to hold preliminary votes).
52 Riddick’s Senate Procedure, p. 877, describes the motion of the majority leader as a “preferential motion made by a Senator when a motion by one of the parties was pending.” 53 Congressional Record, vol. 132 (October 8, 1986), pp. 29412-29413.
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motion to adjourn) be in writing and put by the presiding officer.
Impeachment Rule XXIV prohibits debate on orders of the Senate in open session, but the Senate Impeachment Rule XXIV prohibits debate on orders of the Senate in open session, but the Senate
could vote to go into closed session, in which case each Senator could speak for up to 10 minutes could vote to go into closed session, in which case each Senator could speak for up to 10 minutes
on the motion or order. Impeachment Rule XXIV also provides that orders of the Senate can be on the motion or order. Impeachment Rule XXIV also provides that orders of the Senate can be
agreed to by unanimous consent but, short of unanimous consent, the vote on an order must be by agreed to by unanimous consent but, short of unanimous consent, the vote on an order must be by
the yeas and the nays (a roll call vote).the yeas and the nays (a roll call vote).
5454 An exception is made for the motion to adjourn, which An exception is made for the motion to adjourn, which
could be voted on by voice vote or division (or if the yeas and nays are ordered, by roll call vote, could be voted on by voice vote or division (or if the yeas and nays are ordered, by roll call vote,
as under regular Senate procedures).as under regular Senate procedures).
Otherwise, the impeachment rules do not reference proposals offered by Senators. In the Otherwise, the impeachment rules do not reference proposals offered by Senators. In the
19th19th and and
early early
20th20th century trials, it appears that a variety of propositions regarding procedure were century trials, it appears that a variety of propositions regarding procedure were
proposed by Senators. In the modern trials, some motions were permitted pursuant to a proposed by Senators. In the modern trials, some motions were permitted pursuant to a
previously-agreed-to resolution, or under the terms of a unanimous consent agreement. For previously-agreed-to resolution, or under the terms of a unanimous consent agreement. For
example, in the 1999 trial of President Clinton, a Senator offered a motion to dismiss the articles example, in the 1999 trial of President Clinton, a Senator offered a motion to dismiss the articles
that was permitted under the terms of S.Res. 16. Similarly, later in the same trial, the minority that was permitted under the terms of S.Res. 16. Similarly, later in the same trial, the minority
leader offered a motion that the Senate proceed to closing arguments, and this motion appears to leader offered a motion that the Senate proceed to closing arguments, and this motion appears to
have been permitted under the terms of S.Res. 30have been permitted under the terms of S.Res. 30
.55
.55
In other modern instances, however, Senators appear to have offered motions that were not In other modern instances, however, Senators appear to have offered motions that were not
explicitly allowed under a previous order and were presumably permitted by the standing explicitly allowed under a previous order and were presumably permitted by the standing
impeachment rules and precedents. For example, during the trial of President Clinton, a Senator impeachment rules and precedents. For example, during the trial of President Clinton, a Senator
moved that Senators be permitted to insert statements they made in the closed session into the moved that Senators be permitted to insert statements they made in the closed session into the
Congressional Record. In another example, during the 1986 trial of Judge Harry Claiborne, a . In another example, during the 1986 trial of Judge Harry Claiborne, a
Senator moved to postpone the decision on motions filed by the defendant.Senator moved to postpone the decision on motions filed by the defendant.
5656 It is also possible It is also possible
that such motions were effectively offered by a kind of tacit unanimous consent, and if any that such motions were effectively offered by a kind of tacit unanimous consent, and if any
Senator had objected, they could not have been considered. Unanimous consent cannot always be Senator had objected, they could not have been considered. Unanimous consent cannot always be
required for a Senator to propose a motion or order, however, as that would allow a single Senator required for a Senator to propose a motion or order, however, as that would allow a single Senator
to block procedural decisions. Neither the impeachment rules nor the published precedents to block procedural decisions. Neither the impeachment rules nor the published precedents
provide explicit guidance on what propositions can be offered by Senators while sitting on an provide explicit guidance on what propositions can be offered by Senators while sitting on an
impeachment trial. There is also no guidance regarding precedence among the various motions, impeachment trial. There is also no guidance regarding precedence among the various motions,
although the Senate precedents establishing that the majority leader is entitled to priority in although the Senate precedents establishing that the majority leader is entitled to priority in
recognition, followed by the minority leader, presumably continue to apply in an impeachment recognition, followed by the minority leader, presumably continue to apply in an impeachment
trial.trial.
Still other motions have been offered pursuant to the regular standing rules of the Senate. In 1999, Still other motions have been offered pursuant to the regular standing rules of the Senate. In 1999,
for example, several Senators moved to suspend certain impeachment rules (to allow for for example, several Senators moved to suspend certain impeachment rules (to allow for
unlimited debate on questions in open session). To suspend the rules, Senators must provide one unlimited debate on questions in open session). To suspend the rules, Senators must provide one
calendar daycalendar day
’'s notice in writing of their intent to offer a motion to suspend.s notice in writing of their intent to offer a motion to suspend.
5757 Adoption of such a Adoption of such a
motion requires a two-thirds affirmative vote. During the Clinton trial, the Senate considered motion requires a two-thirds affirmative vote. During the Clinton trial, the Senate considered
motions to suspend under the terms of a unanimous consent agreement or a resolution, and it is
54 Under regular Senate procedures, the vote on most questions will be by roll call if a request for the yeas and the nays is supported by a second of 1/5th of those present (and a quorum of 51 Senators is assumed to be present). The support of a second is not necessary on proposed orders in an impeachment trial. For more information on securing a roll call vote in legislative or executive session, see CRS Report 96-452, Voting and Quorum Procedures in the Senate, coordinated by Elizabeth Rybicki.
55 Section 102 of S.Res. 30 provided that after depositions were completed and the Senate had resolved any objections made during the depositions, “Motions may also then be made for orders governing the presentation of evidence and/or the testifying of witnesses before the Senate.” The full motion was that the Senate proceed to closing arguments, that the time for closing arguments be limited to two hours each side, and that the Senate then proceed to a vote on the articles.
56 Congressional Record, vol. 132 (October 7, 1986), p. 29136. 57 Senate Standing Rule V, paragraph 1.
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motions to suspend under the terms of a unanimous consent agreement or a resolution, and it is not entirely clear from the proceedings or published precedents when such motions would not entirely clear from the proceedings or published precedents when such motions would
otherwise be in order.otherwise be in order.
5858
Witnesses
The impeachment rules contain little guidance in relation to the calling and questioning of The impeachment rules contain little guidance in relation to the calling and questioning of
witnesses. Impeachment Rule XVII states that witnesses shall be examined first by the side who witnesses. Impeachment Rule XVII states that witnesses shall be examined first by the side who
requested them, and then cross-examined by the other side. It also specifies that only one person requested them, and then cross-examined by the other side. It also specifies that only one person
from each side shall conduct the examination and cross-examination.from each side shall conduct the examination and cross-examination.
5959 Witnesses are also Witnesses are also
required to be sworn by the Secretary of the Senate or other authorized person, in a form provided required to be sworn by the Secretary of the Senate or other authorized person, in a form provided
by Senate Rule XXV:by Senate Rule XXV:
“
"You, ______, do swear (or affirm, as the case may be) that the evidence you shall give in You, ______, do swear (or affirm, as the case may be) that the evidence you shall give in
the case now pending between the United States and ______, shall be the truth, the whole the case now pending between the United States and ______, shall be the truth, the whole
truth, and nothing but the truth, so help you God.truth, and nothing but the truth, so help you God.
”
"
Impeachment Rule VI is intended to grant the Senate the ability to compel the attendance of Impeachment Rule VI is intended to grant the Senate the ability to compel the attendance of
witnesses (and, more generally, to enforce any witnesses (and, more generally, to enforce any
“"orders, mandates, writs, precepts, and judgmentsorders, mandates, writs, precepts, and judgments
” " deemed deemed
“"essential or conducive to the ends of justiceessential or conducive to the ends of justice
”"). In modern practice, the Senate has relied ). In modern practice, the Senate has relied
on the other branches of government to enforce its subpoenas, as discussed in detail in other CRS on the other branches of government to enforce its subpoenas, as discussed in detail in other CRS
reports.reports.
6060 For example, in the 1989 trial of Judge Alcee Hastings, when a key witness refused to For example, in the 1989 trial of Judge Alcee Hastings, when a key witness refused to
testify, the Senate in legislative session took up and approved by unanimous consent a resolution testify, the Senate in legislative session took up and approved by unanimous consent a resolution
directing the Senate Legal Counsel to bring a civil action to enforce the subpoena.directing the Senate Legal Counsel to bring a civil action to enforce the subpoena.
6161 Senate Legal Senate Legal
Counsel obtained an order from the U.S. District Court for the District of Columbia directing the Counsel obtained an order from the U.S. District Court for the District of Columbia directing the
witness to testify, and when the witness continued to refuse to do so, he was incarcerated until the witness to testify, and when the witness continued to refuse to do so, he was incarcerated until the
end of the trial.end of the trial.
62
62
The Senate impeachment rules do not address the selection of witnesses. In practice, the Senate The Senate impeachment rules do not address the selection of witnesses. In practice, the Senate
determines which witnesses will be heard, if any. (If a trial committee is used, the trial committee determines which witnesses will be heard, if any. (If a trial committee is used, the trial committee
selects and subpoenas the witnesses.) The parties to the case do not have the right under the rules selects and subpoenas the witnesses.) The parties to the case do not have the right under the rules
to call whomever they choose. To be clear, it is the House managers and counsel for the to call whomever they choose. To be clear, it is the House managers and counsel for the
impeached who know the charges and know what evidence they would like to present, and, in impeached who know the charges and know what evidence they would like to present, and, in
practice, the Senate weighs their requests heavily. In some recent trials, the Senate has requested practice, the Senate weighs their requests heavily. In some recent trials, the Senate has requested
pretrial statements or trial memoranda from both parties, which discuss possible evidence to be pretrial statements or trial memoranda from both parties, which discuss possible evidence to be
presented, including desired witnesses.presented, including desired witnesses.
6363 On the basis of such requests, the Senate (or the trial On the basis of such requests, the Senate (or the trial
committee) decides which witnesses to hear and possibly subpoena.
58 Motions to suspend the rules were made four times during the Clinton impeachment trial on January 25, January 26, February 9, and February 12, 1999. In each case, prior notices of intent to make such a motion were filed at least 1 day earlier, pursuant to Senate Rule V. Motions to suspend made on January 25, January 26, and February 12 were each made in order pursuant to unanimous consent agreements (see, for example, Congressional Record, daily edition, vol. 145 [January 25, 1999], p. S962). The motion to suspend made on February 9 was made in order pursuant to language in S.Res. 30.
59 Another impeachment rule exclusively concerning witnesses, Rule XVIII, was first agreed to by the Senate in the trial of Justice Chase in 1805. It provides that if Senators are witnesses, they shall be sworn as witnesses and can provide their testimony from their own desks on the floor.
60 CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey. 61 Congressional Record, vol. 135 (August 3, 1989), pp. 18474-18475. 62 U.S. Congress, Senate, Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, A
Judge of the United States District Court for the Southern District of Florida, 101st Cong., 1st sess., S.Doc. 101-18 (Washington: GPO, 1989), pp. 1591-1608.
63 See, for example, the request by letter for pretrial statements from the Senate Impeachment Trial Committee with (continued...)
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committee) decides which witnesses to hear and possibly subpoena.
In the modern judicial trials, witnesses were examined in the trial committees, and not on the In the modern judicial trials, witnesses were examined in the trial committees, and not on the
floor before the full Senate. In the Clinton trial in 1999, the Senate agreed to an order that floor before the full Senate. In the Clinton trial in 1999, the Senate agreed to an order that
depositions from three witnesses be taken, but did not agree to hear testimony from any witness depositions from three witnesses be taken, but did not agree to hear testimony from any witness
on the floor. Witnesses did not testify in either of the Trump impeachment trials.on the floor. Witnesses did not testify in either of the Trump impeachment trials.
6464 The last time The last time
witnesses were examined and cross-examined on the Senate floor was during the impeachment witnesses were examined and cross-examined on the Senate floor was during the impeachment
trial of Judge Ritter in 1936.trial of Judge Ritter in 1936.
Questions by Senators
During the presentation of evidence by the House managers and counsel for the impeached During the presentation of evidence by the House managers and counsel for the impeached
officer, Senators are generally expected to attend, but not speak. Impeachment Rule XIX, officer, Senators are generally expected to attend, but not speak. Impeachment Rule XIX,
however, does allow a Senator to question a witness, manager, or counsel of the person however, does allow a Senator to question a witness, manager, or counsel of the person
impeached. The Senator must put the question in writing and submit it to the presiding officer, impeached. The Senator must put the question in writing and submit it to the presiding officer,
who then reads the question out loud. In practice, the presiding officer identifies the Senator who then reads the question out loud. In practice, the presiding officer identifies the Senator
posing the question before reading it.posing the question before reading it.
As noted, witnesses have not testified before the full Senate since the 1936 trial of Judge Ritter, As noted, witnesses have not testified before the full Senate since the 1936 trial of Judge Ritter,
so there are no modern examples to look to concerning Senators questioning witnesses on the so there are no modern examples to look to concerning Senators questioning witnesses on the
floor. In trial committees, Senators have submitted questions for witnesses. In addition, floor. In trial committees, Senators have submitted questions for witnesses. In addition,
resolutions establishing trial committees have explicitly authorized the chair of the trial resolutions establishing trial committees have explicitly authorized the chair of the trial
committee to committee to
“"waive the requirement…that questions by a Senator to a witness, a manager, or waive the requirement…that questions by a Senator to a witness, a manager, or
counsel shall be reduced to writing and put by the presiding officer.counsel shall be reduced to writing and put by the presiding officer.
”65
"65
In modern trials, Senators have posed questions to House managers and counsel for the In modern trials, Senators have posed questions to House managers and counsel for the
impeached. In the 1999, 2020, and 2021 presidential impeachment trials, the Senate agreed to impeached. In the 1999, 2020, and 2021 presidential impeachment trials, the Senate agreed to
resolutions (S.Res. 16resolutions (S.Res. 16
, 106th, 106th Congress, S.Res. 483 Congress, S.Res. 483
, 116th, 116th Congress, and S.Res. 47 Congress, and S.Res. 47
, 117th, 117th Congress) Congress)
that established procedures in addition to the impeachment rules in order to structure a period of that established procedures in addition to the impeachment rules in order to structure a period of
questioning by Senators. The resolutions for the Clinton trial and the first Trump trial provided questioning by Senators. The resolutions for the Clinton trial and the first Trump trial provided
that after opening arguments by the House managers and the Presidentthat after opening arguments by the House managers and the President
’'s counsel, s counsel,
“"Senators may Senators may
question the parties for a period of time not to exceed 16 hours.question the parties for a period of time not to exceed 16 hours.
”" In the second Trump trial, this In the second Trump trial, this
time was not to exceed four hours. Senators typically directed their questions to one side or the time was not to exceed four hours. Senators typically directed their questions to one side or the
other, and questions alternated between Republican and Democratic Senators. Five minutes was other, and questions alternated between Republican and Democratic Senators. Five minutes was
expected to be a sufficient time to answer each question, and an effort was made to keep the time expected to be a sufficient time to answer each question, and an effort was made to keep the time
used by each side roughly equal. In the Clinton trial and the first Trump trial, over 100 questions used by each side roughly equal. In the Clinton trial and the first Trump trial, over 100 questions
were posed by Senators over the course of two days.were posed by Senators over the course of two days.
6666 In the second Trump trial, a unanimous In the second Trump trial, a unanimous
respect to articles of impeachment against district judge Harry E. Claiborne: “The statements should identify any witness whom the party proposes to call and should state what the party expects the testimony of the witness to be.” (U.S. Congress, Senate, Senate Impeachment Trial Committee, Hearings Before the Senate Impeachment Trial
Committee, Part 1 of 4, 99th Cong., 2nd sess., 1986, 99-812 [Washington: GPO, 1986], p. 33). Note, however, that in the trial of President Clinton, the trial brief submitted by the House managers did not list witnesses, and instead stated that their “brief is intended solely to advise the Senate generally of the evidence that the managers intend to produce, if permitted…nor does it necessarily include each and every witness and document that managers would produce…” (Congressional Record, daily edition, vol. 145 [January 14, 1999], p. S64).
64 A motion to subpoena witnesses was agreed to by the Senate, 55-45, during the second impeachment trial of President Trump. During debate on the motion by trial parties, House managers expressed interest in deposing Representative Jamie Herrera Beutler. Counsel to President Trump stated they would need over 100 depositions. After the motion to subpoena witnesses was agreed to, the Senate recessed to allow further discussion on how to proceed. When the Senate resumed session, the trial parties had come to an agreement that allowed a statement from Representative Beutler to be entered into evidence and no witnesses would be subpoenaed for deposition (Congressional Record, daily edition, vol. 167 [February 13, 2021], pp. S717-S719).
65 Congressional Record, vol. 135 (March 16, 1989), p. 4534. 66 In the 2020 trial of President Trump, the majority leader announced, at the start of the second day of questioning, that (continued...)
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consent agreement was reached that answers to questions be limited to five minutes each, equally consent agreement was reached that answers to questions be limited to five minutes each, equally
divided if directed to both parties, and that questions alternate by the side asking the question.divided if directed to both parties, and that questions alternate by the side asking the question.
67 67 Close to 30 questions were posed over the course of approximately two and a half hours.Close to 30 questions were posed over the course of approximately two and a half hours.
In other modern trials, Senators asked questions of the House managers and counsel for the In other modern trials, Senators asked questions of the House managers and counsel for the
accused on the floor, apparently without a unanimous consent agreement or other order of the accused on the floor, apparently without a unanimous consent agreement or other order of the
Senate structuring the questioning process. During the 2010 trial of Judge Porteous, for example, Senate structuring the questioning process. During the 2010 trial of Judge Porteous, for example,
after the trial committee had issued its report, the Senate agreed by unanimous consent to limit after the trial committee had issued its report, the Senate agreed by unanimous consent to limit
the time for arguments on all motions filed by Judge Porteous to one hour for each side, and to the time for arguments on all motions filed by Judge Porteous to one hour for each side, and to
limit the time for final arguments on all four articles of impeachment to one and a half hours for limit the time for final arguments on all four articles of impeachment to one and a half hours for
each side.each side.
6868 The agreement did not explicitly address time for questions. Senators, during the The agreement did not explicitly address time for questions. Senators, during the
arguments, sent questions in writing to the presiding officer, who asked the clerk to read them at a arguments, sent questions in writing to the presiding officer, who asked the clerk to read them at a
time deemed appropriate, including after the expiration of the time limits set by unanimous time deemed appropriate, including after the expiration of the time limits set by unanimous
consent.consent.
6969 In this trial, Senators In this trial, Senators
’' questions were sometimes directed to both sides. questions were sometimes directed to both sides.
Creation of a Trial Committee
Impeachment Rule XI allows for the appointment of a trial committee of Senators to receive Impeachment Rule XI allows for the appointment of a trial committee of Senators to receive
evidence and take testimony on behalf of the Senate for an impeachment. Rule XI does not evidence and take testimony on behalf of the Senate for an impeachment. Rule XI does not
contain language explicitly limiting the application of trial committees; however, the 1974 Rules contain language explicitly limiting the application of trial committees; however, the 1974 Rules
and Administration Committee report regarding amendments to the impeachment rules stated and Administration Committee report regarding amendments to the impeachment rules stated
that, “that "nothing but action by the full Senate on all aspects of a presidential impeachment was nothing but action by the full Senate on all aspects of a presidential impeachment was
conceivable”conceivable" and that the legislative history to the proposed amendments should and that the legislative history to the proposed amendments should
“"clearly reflectclearly reflect
” " this understanding by members of the Committee.this understanding by members of the Committee.
7070 The Senate has chosen to appoint trial The Senate has chosen to appoint trial
committees for every modern impeachment of a judge since the 1980s.committees for every modern impeachment of a judge since the 1980s.
71
71
Trial committees serve to relieve the full Senate of the potentially lengthy process of these early Trial committees serve to relieve the full Senate of the potentially lengthy process of these early
trial tasks and instead devote time to its legislative workload. Transcripts of all proceedings trial tasks and instead devote time to its legislative workload. Transcripts of all proceedings
conducted and evidence received by the trial committee are transmitted to the full Senate when conducted and evidence received by the trial committee are transmitted to the full Senate when
the committeethe committee
’'s work is completed. This material provides a potential opportunity to move s work is completed. This material provides a potential opportunity to move
quickly to closing arguments and deliberation on the final question of whether an impeached quickly to closing arguments and deliberation on the final question of whether an impeached
officer is guilty or not guilty.officer is guilty or not guilty.
Trial committees are typically created by a simple resolution that authorizes the majority and Trial committees are typically created by a simple resolution that authorizes the majority and
minority leaders to each recommend six Senators, including, more recently, a chair and vice chair, minority leaders to each recommend six Senators, including, more recently, a chair and vice chair,
respectively. Impeachment Rule XI does not fix the membership or size of a trial committee, nor respectively. Impeachment Rule XI does not fix the membership or size of a trial committee, nor
does it require party balance; in modern practice, however, the Senate has routinely agreed to a does it require party balance; in modern practice, however, the Senate has routinely agreed to a
bipartisan 12-member committee.bipartisan 12-member committee.
7272 Resolutions creating trial committees also typically include a Resolutions creating trial committees also typically include a
Senators “have been respectful of the Chief Justice’s unique position in reading our questions. I want to be able to continue to assure him that that level of consideration for him will continue.” The Chief Justice later declined to read a question as submitted by a Senator. Congressional Record, daily edition, vol. 166 (January 30, 2020), pp. S693-S694.
67 Congressional Record, daily edition, vol. 167 (February 12, 2021), p. S682. 68 Congressional Record, vol. 156 (December 6, 2010), p. 19002. 69 Congressional Record, vol. 156 (December 7, 2010), pp. 19047-19048. 70 U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in
the Senate when Sitting on Impeachment Trials, 93rd Cong., 2nd sess., August 22, 1974, S.Rept. 93-1125 (Washington: GPO, 1974), p. 32.
71 For recent examples of resolutions creating trial committees, see S.Res. 203 and S.Res. 458, both from the 111th Congress (2009-2010).
72 Prior to the rule’s amendment in 1986, Impeachment Rule XI required trial committees to consist of 12 Senators. In recommending the removal of this requirement, the Senate Rules Committee suggested that a trial committee’s (continued...)
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funding provision, and may authorize a committee to waive certain impeachment rules, direct a funding provision, and may authorize a committee to waive certain impeachment rules, direct a
committee on what it should report to the Senate, or establish a date at which the committee will committee on what it should report to the Senate, or establish a date at which the committee will
terminate.terminate.
In addition to receiving evidence and testimony, trial committees can reach decisions concerning In addition to receiving evidence and testimony, trial committees can reach decisions concerning
certain certain
pre-trialpretrial requests and motions filed by the parties to the case, and they can question requests and motions filed by the parties to the case, and they can question
witnesses. Trial committees process motions filed by House managers in a fashion similar to that witnesses. Trial committees process motions filed by House managers in a fashion similar to that
which the Senate would use when sitting as a court of impeachment. The committee holds a which the Senate would use when sitting as a court of impeachment. The committee holds a
hearing to receive oral arguments from the trial parties, allots time for questioning by committee hearing to receive oral arguments from the trial parties, allots time for questioning by committee
members, deliberates in closed session, and ultimately votes to make a determination in relation members, deliberates in closed session, and ultimately votes to make a determination in relation
to the request.to the request.
7373 Modern trial committees have routinely declined to consider motions to dismiss Modern trial committees have routinely declined to consider motions to dismiss
an article or articles of impeachment, citing a lack of authority to do so.an article or articles of impeachment, citing a lack of authority to do so.
7474 Trial committees also Trial committees also
have examined witnesses called by House managers and counsel to the accused. Typically, a have examined witnesses called by House managers and counsel to the accused. Typically, a
witness is first examined by the trial parties, after which committee members have been able to witness is first examined by the trial parties, after which committee members have been able to
ask their own questions. Under the impeachment rules, questions by Senators are to be submitted ask their own questions. Under the impeachment rules, questions by Senators are to be submitted
in writing, although the Senate has waived this rule to allow for direct questioning by Senators in in writing, although the Senate has waived this rule to allow for direct questioning by Senators in
trial committees.trial committees.
75
75
Once a trial committee has completed its work, as previously discussed, it will issue a report to Once a trial committee has completed its work, as previously discussed, it will issue a report to
the Senate compiling all evidence, exhibits, and witness testimony it received. That material is the Senate compiling all evidence, exhibits, and witness testimony it received. That material is
considered as having been received and taken before the full Senate for the purposes of delivering considered as having been received and taken before the full Senate for the purposes of delivering
a final vote on articles of impeachment. The trial committeea final vote on articles of impeachment. The trial committee
’'s work does not preclude the Senate s work does not preclude the Senate
itself from calling additional witnesses, hearing further testimony, or revisiting motions raised by itself from calling additional witnesses, hearing further testimony, or revisiting motions raised by
House managers and counsel for the accused. The full Senate did not choose to hear witnesses or House managers and counsel for the accused. The full Senate did not choose to hear witnesses or
request any further evidence in any of the four completed trials in which a committee was used.request any further evidence in any of the four completed trials in which a committee was used.
Closed Deliberations by Senators
Closed door deliberation by the Senate while sitting for an impeachment trial is established Closed door deliberation by the Senate while sitting for an impeachment trial is established
through Impeachment Rules XX and XXIV. Rule XX states that a Senate impeachment trial is to through Impeachment Rules XX and XXIV. Rule XX states that a Senate impeachment trial is to
be conducted in open session, except for when the doors shall be closed for deliberation.76 A
structure should remain undefined to allow flexibility in meeting the needs of future Senate impeachment trials. U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the
Senate when Sitting on Impeachment Trials, 99th Cong., 2nd sess., August 13, 1986, S.Rept. 99-401 (Washington: GPO, 1986), p. 5.
73 See, for example, U.S. Congress, Senate Impeachment Trial Committee, Impeachment Trial Committee on the
Articles against Judge G. Thomas Porteous, Jr., Volume 1 of 3, Part B, 111th Cong., 2nd sess., November 16, 2010, S.Hrg. 111-691 (Washington: GPO, 2010), pp. 1835-1965.
74 Trial committees have regularly reported that they have a limited mandate to provide a neutral summary of evidence presented and witness testimony heard, and that such committees “have no authority to make recommendations regarding matters as to weight of the evidence or whether the Senate should vote to convict or acquit on the articles of impeachment.” U.S. Congress, Senate Impeachment Trial Committee, Report of the Impeachment Trial Committee on
the Articles against G. Thomas Porteous, Jr., 111th Cong., 2nd sess., November 16, 2010, S.Rept. 111-347 (Washington: GPO, 2010), p. 2.
75 S.Res. 458, Sec. 4, allowed the chair of the Judge Porteous trial committee to waive Impeachment Rule XIX during the committee’s consideration of evidence. The trial committee chose to exercise that authority and Senators posed questions orally to witnesses. See, for example, U.S. Congress, Senate Impeachment Trial Committee, Impeachment
Trial Committee on the Articles against Judge G. Thomas Porteous, Jr., vol. 2 of 3, Part A, 111th Cong., 2nd sess., November 16, 2010, S.Hrg. 111-691 (Washington: GPO, 2010), pp. 242-245.
76 The actual language of Senate Impeachment Rule XX states that “at all times while the Senate is sitting upon the trial of an impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors be closed while deliberating upon its decisions.” Impeachment Rule XXIV is more direct, stating that “the doors shall be closed for (continued...)
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be conducted in open session, except for when the doors shall be closed for deliberation.76 A motion to go into closed door session can be acted upon without objection, or if an objection is motion to go into closed door session can be acted upon without objection, or if an objection is
raised, by a roll call vote without debate.raised, by a roll call vote without debate.
7777 Note that this method of entering closed session when Note that this method of entering closed session when
the Senate is sitting for an impeachment trial—approving a motion by majority vote—is different the Senate is sitting for an impeachment trial—approving a motion by majority vote—is different
from the method used during regular Senate session. Outside of an impeachment trial, a single from the method used during regular Senate session. Outside of an impeachment trial, a single
Senator can move that the Senate go into closed session, and, if the motion is seconded by Senator can move that the Senate go into closed session, and, if the motion is seconded by
another Senator, the Senate will proceed to secret session.another Senator, the Senate will proceed to secret session.
78
78
Rule XXIV specifies, in part, that during closed door deliberations, each Senator may speak only Rule XXIV specifies, in part, that during closed door deliberations, each Senator may speak only
once on each question. Such remarks are limited to 10 minutes per Senator on once on each question. Such remarks are limited to 10 minutes per Senator on
“interlocutory” "interlocutory" questions and to 15 minutes on questions and to 15 minutes on
“"the final questionthe final question
,”" (i.e., whether the impeached officer is guilty (i.e., whether the impeached officer is guilty
or not guilty), regardless of the number of articles of impeachment. In other words, in the final or not guilty), regardless of the number of articles of impeachment. In other words, in the final
debate, regardless of whether the Senate is considering one article of impeachment or many, each debate, regardless of whether the Senate is considering one article of impeachment or many, each
Senator has only one opportunity to speak for no more than 15 minutes.Senator has only one opportunity to speak for no more than 15 minutes.
When the Senate enters a closed session, the specific procedures followed are guided by the When the Senate enters a closed session, the specific procedures followed are guided by the
Senate’Senate's standing rules, rather than its impeachment rules. The Sergeant at Arms clears the s standing rules, rather than its impeachment rules. The Sergeant at Arms clears the
chamber and galleries of everyone except for Senators and staff designated under Senate Rule chamber and galleries of everyone except for Senators and staff designated under Senate Rule
XXIX, paragraph 2, who are sworn to secrecy.XXIX, paragraph 2, who are sworn to secrecy.
7979 The Senate rule further provides access for the The Senate rule further provides access for the
Senate Secretary, the Assistant Secretary, the Principal Legislative Clerk, the Parliamentarian, the Senate Secretary, the Assistant Secretary, the Principal Legislative Clerk, the Parliamentarian, the
Executive Clerk, the Minute and Journal Clerk, the Sergeant at Arms, and the Secretaries to the Executive Clerk, the Minute and Journal Clerk, the Sergeant at Arms, and the Secretaries to the
Majority and Minority, as well as other individuals the presiding officer Majority and Minority, as well as other individuals the presiding officer
“"shall think necessary.shall think necessary.
” " During impeachment trials, the Senate has, in practice, extended floor privileges in closed session During impeachment trials, the Senate has, in practice, extended floor privileges in closed session
to additional designated staff by unanimous consent agreement.to additional designated staff by unanimous consent agreement.
80
80
A record of closed session deliberations is kept, as with all proceedings of impeachment trials, A record of closed session deliberations is kept, as with all proceedings of impeachment trials,
pursuant to Impeachment Rule XIV. Unlike open session records, which are made available to the pursuant to Impeachment Rule XIV. Unlike open session records, which are made available to the
public, closed session transcripts are kept under an injunction of secrecy unless lifted by the public, closed session transcripts are kept under an injunction of secrecy unless lifted by the
Senate by resolution or unanimous consent.Senate by resolution or unanimous consent.
8181 Accordingly, Senators and staff are expected to Accordingly, Senators and staff are expected to
refrain from public discussion of closedrefrain from public discussion of closed
- door deliberations. Senate Standing Rule XXIX, door deliberations. Senate Standing Rule XXIX,
deliberation.” A parliamentary inquiry was made during the impeachment trial of President Clinton regarding whether it would be in order to proceed to public deliberation. The Chief Justice, as part of his ruling, explained the origins and history of Impeachment Rules XX and XXIV, concluding that despite “some ambiguity between the two rules … there can be no deliberation on any question before the Senate in open session unless the Senate suspends its rules, or consent is granted.” Congressional Record, daily edition, vol. 145 (February 9, 1999), p. S1387. 77 The precedents suggest that, in some cases, this motion may not be repeated. During the 1876 trial of Secretary of War William Belknap, the presiding officer ruled that, after a motion to enter closed session failed by voice vote, another such motion was not in order. The closed session would have been to deliberate whether to extend time for arguments on a procedural question from one hour for each side to two hours for each side (Proceedings of the Senate
Sitting for the Trial of William W. Belknap, Late Secretary of War, 44th Cong. 1st sess. (Washington: GPO, 1876), (April 28, 1876), p. 36).
78 For more information, see CRS Report R42106, Secret Sessions of the House and Senate: Authority, Confidentiality,
and Frequency, by Christopher M. Davis. For a discussion of the difference between entering secret session under Senate Rule XXI and Impeachment Rule XX, see U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, (Pursuant to S.Res. 370), 93rd Cong., 2nd sess., August 22, 1974, 93-1125 (Washington: GPO, 1974), p. 37.
79 More specifically, the authority of Senate Rule XXIX—which pertains to executive sessions—is extended to all closed door sessions by Senate Rule XXI, which states that “when the Senate meets in closed session, any applicable provisions of rules XXIX and XXXI including the confidentiality of information shall apply to any information and to the conduct of any debate transacted.”
80 Trump trial, Congressional Record, daily edition, vol. 166 (January 21, 2020), p. S377; Clinton trial, Congressional
Record, daily edition, vol. 145 (January 14, 1999), pp. S59-S60; Porteous trial, Congressional Record, daily edition, vol. 156 (December 7, 2010), p. S8595.
81 Senate Standing Rule XXIX, paragraph 3.
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paragraph 5, provides for possible expulsion from the Senate (if a Senator) or dismissal from paragraph 5, provides for possible expulsion from the Senate (if a Senator) or dismissal from
service (if an officer or employee) as punishment for divulging closed door proceedings.service (if an officer or employee) as punishment for divulging closed door proceedings.
8282 In In
recent Senate impeachment trials, the Senate has allowed Senators to insert their closed session recent Senate impeachment trials, the Senate has allowed Senators to insert their closed session
remarks into the remarks into the
Congressional Record..
83
83
As mentioned above, in the 1999 trial of President Clinton, Senators attempted to allow for open As mentioned above, in the 1999 trial of President Clinton, Senators attempted to allow for open
deliberation and debate in an impeachment trial by moving to suspend the impeachment rules. No deliberation and debate in an impeachment trial by moving to suspend the impeachment rules. No
such proposals were agreed to by the Senate during the Clinton trial, and all deliberation such proposals were agreed to by the Senate during the Clinton trial, and all deliberation
throughout the trial occurred in closed sessions. In the 2020 trial of President Trump, the Senate throughout the trial occurred in closed sessions. In the 2020 trial of President Trump, the Senate
agreed to a resolution (S.Res. 488) that provided that the Senate would vote on the Articles of agreed to a resolution (S.Res. 488) that provided that the Senate would vote on the Articles of
Impeachment without intervening action or debate after conclusion of the final arguments by the Impeachment without intervening action or debate after conclusion of the final arguments by the
House managers and counsel for the President. In the 2021 trial of President Trump, S.Res. 47House managers and counsel for the President. In the 2021 trial of President Trump, S.Res. 47
contained a similar provision, except it allowed deliberation in closed session if ordered under the contained a similar provision, except it allowed deliberation in closed session if ordered under the
Rules of Impeachment.Rules of Impeachment.
Voting on Articles of Impeachment
Conviction requires a guilty vote on at least one article of impeachment by two-thirds of Senators Conviction requires a guilty vote on at least one article of impeachment by two-thirds of Senators
present. Assuming 100 Senators present, the support of 67 Senators is needed to convict on an present. Assuming 100 Senators present, the support of 67 Senators is needed to convict on an
article. If fewer Senators are present, the threshold to convict will accordingly be reduced as well article. If fewer Senators are present, the threshold to convict will accordingly be reduced as well
(e.g., 97 Senators present would require 65 votes to convict). A response of (e.g., 97 Senators present would require 65 votes to convict). A response of
“present”"present" effectively effectively
supports acquittal, as it counts in the denominator against which the threshold to convict is supports acquittal, as it counts in the denominator against which the threshold to convict is
calculated.calculated.
84
84
Following closed door deliberations on the final question of whether to convict or acquit an Following closed door deliberations on the final question of whether to convict or acquit an
impeached officer, the Senate reconvenes in open session to vote on the articles of impeachment. impeached officer, the Senate reconvenes in open session to vote on the articles of impeachment.
Articles are typically voted on in the order they were exhibited by House managers.Articles are typically voted on in the order they were exhibited by House managers.
8585 It is not in It is not in
order to further divide an article.order to further divide an article.
86
86
Pursuant to Impeachment Rule XXIII, the presiding officer puts the question on each article Pursuant to Impeachment Rule XXIII, the presiding officer puts the question on each article
separately, and each vote is required to be by roll call. The legislative clerk is directed to read the separately, and each vote is required to be by roll call. The legislative clerk is directed to read the
article of impeachment aloud and then the roll is called, to which Senators must rise from their article of impeachment aloud and then the roll is called, to which Senators must rise from their
seats and answer seats and answer
“guilty” or “"guilty" or "not guiltynot guilty
”" on the question of impeachment. on the question of impeachment.
8787 Voting on the articles Voting on the articles
of impeachment is to continue without interruption, pursuant to Rule XXII, unless the Senate of impeachment is to continue without interruption, pursuant to Rule XXII, unless the Senate
adjourns the trial. After voting has commenced, adjournments of the trial can be for only one day,
82 Expulsion of a Senator requires an affirmative two-thirds vote pursuant to the U.S. Constitution, Article 1, Section 5, Clause 2.
83 Congressional Record, daily edition, vol. 145 (February 9, 1999) pp. S1386-S1387. 84 Riddick’s Senate Procedure, p. 879. 85 During the impeachment trial of President Andrew Johnson, the Senate agreed to a motion directing that the eleventh article of impeachment be read and voted on first.
86 Rule XXIII was amended in 1986 to include its current language about articles not being divisible. Earlier, an article of impeachment had been divided into three parts by motion, each of which received a separate vote during the 1862 impeachment trial of Judge West Humphreys.
87 During voting on the two articles of impeachment in the Senate trial of President Clinton, Senator Arlen Specter responded “not proven, therefore, not guilty” reportedly in a reference to a third verdict of “not proved” provided for under Scottish law. Senator Specter explained his vote in remarks inserted into the Congressional Record that “I consulted with the Parliamentarian and examined the Senate precedents and found that if I voted simply ‘not proven,’ that I would be marked on the voting roles as ‘present.’ I also found that a response of ‘present,’ and inferentially the equivalent of ‘present,’ could be challenged and that I could be forced to cast a vote of ‘yea’ or ‘nay.’” Congressional
Record, daily edition, vol. 145 (March 2, 1999), p. S2140.
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adjourns the trial. After voting has commenced, adjournments of the trial can be for only one day, or or
sine die, that is, without a specific date to return, if ever., that is, without a specific date to return, if ever.
8888 Under the rule, a motion to Under the rule, a motion to
reconsider a vote on an article of impeachment is not in order.reconsider a vote on an article of impeachment is not in order.
Under Senate Standing Rule XII, Senators are required to vote upon call of their name unless Under Senate Standing Rule XII, Senators are required to vote upon call of their name unless
excused by the Senate or due to a conflict of interest. The question of excusing a Senator from excused by the Senate or due to a conflict of interest. The question of excusing a Senator from
voting is disposed of after the call of the roll is completed but before the result is announced.voting is disposed of after the call of the roll is completed but before the result is announced.
89 89 Senators have been excused from voting on articles of impeachment in past trials due to their Senators have been excused from voting on articles of impeachment in past trials due to their
absences from arguments or owing to their participation as a witness in the trial. (Senators have absences from arguments or owing to their participation as a witness in the trial. (Senators have
also been excused from participating in the trial at all; see above also been excused from participating in the trial at all; see above
“"Organizing for the TrialOrganizing for the Trial
.”)
.")
If an officer is convicted by two-thirds of Senators present, If an officer is convicted by two-thirds of Senators present,
“"such a vote operates automatically such a vote operates automatically
and instantaneously to separate the person impeached from office.and instantaneously to separate the person impeached from office.
”90"90 The Senate may then choose The Senate may then choose
to take the additional action to move to disqualify a convicted officer from holding further office, to take the additional action to move to disqualify a convicted officer from holding further office,
although this step is not required. The Senate has established that a vote to disqualify requires a although this step is not required. The Senate has established that a vote to disqualify requires a
simple majority voting affirmatively, and not two-thirds as with conviction.simple majority voting affirmatively, and not two-thirds as with conviction.
9191
Senate Interpretation of the Impeachment Rules and
the Role of the Presiding Officer
The presiding officer of an impeachment trial does not possess any more independent control The presiding officer of an impeachment trial does not possess any more independent control
over proceedings than the presiding officer does during the more common Senate deliberations on over proceedings than the presiding officer does during the more common Senate deliberations on
legislation or nominations. While the presiding officer, in either case, may rule on the proper legislation or nominations. While the presiding officer, in either case, may rule on the proper
interpretation of the rules and procedures of the Senate, that ruling can be challenged by any interpretation of the rules and procedures of the Senate, that ruling can be challenged by any
Senator. In legislative or executive sessions of the Senate, if any Senator appeals a ruling by the Senator. In legislative or executive sessions of the Senate, if any Senator appeals a ruling by the
presiding officer, the full Senate considers the question, presiding officer, the full Senate considers the question,
“"Shall the decision of the Chair stand as Shall the decision of the Chair stand as
the judgment of the Senate?the judgment of the Senate?
”92
"92
Impeachment Rule VII lays out the process of challenging a ruling as it applies during an Impeachment Rule VII lays out the process of challenging a ruling as it applies during an
impeachment trial. It states in partimpeachment trial. It states in part
And the Presiding Officer on the trial may rule on all questions of evidence including, but And the Presiding Officer on the trial may rule on all questions of evidence including, but
not limited to, questions of relevancy, materiality, and redundancy of evidence and not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some incidental questions, which ruling shall stand as the judgment of the Senate, unless some
Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall 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; or he may at his option, in the first be submitted to the Senate for decision without debate; or he may at his option, in the first
instance, submit any such question to a vote of the Members of the Senate.
88 During the impeachment trial of President Andrew Johnson, the Senate only voted on three of eleven articles of impeachment before adjourning sine die. The eight remaining articles resulted in acquittals in the absence of a two-thirds affirmative vote to convict. Hinds’ Precedents, vol. 3, ch. 76, §2443, pp. 900-901.
89 U.S. Congress, Senate Committee on Rules and Administration, Procedure and Guidelines for Impeachment Trials
in the United States Senate, 99th Cong., 2nd sess., August 15, 1986, S.Doc. 99-33 (Washington: GPO, 1986), pp. 77-78.
90 U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in
the Senate when Sitting on Impeachment Trials, 99th Cong., 2nd sess., August 13, 1986, S.Rept. 99-401 (Washington: GPO, 1986), pp. 9-10.
91 Procedure and Guidelines for Impeachment Trials, pp. 81-82. The Senate has convicted 8 impeached officers, all federal judges, and disqualified three from holding future office: Judge West H. Humphreys, 1862; Judge Robert W. Archbald, 1913; and Judge G. Thomas Porteous, 2010. See Michael J. Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analysis, 2nd ed. (Chicago: University of Chicago Press, 200), p. 78; and Congressional
Record, vol. 156 (December 8, 2010), p. 19136.
92 The question is usually subject to debate, but it can be tabled, which sustains the ruling of the chair. For more information, see CRS Report 98-306, Points of Order, Rulings, and Appeals in the Senate, by Valerie Heitshusen.
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instance, submit any such question to a vote of the Members of the Senate.
In other words, while the impeachment rules grant the presiding officer the authority to rule on In other words, while the impeachment rules grant the presiding officer the authority to rule on
questions, they also state that a single Senator could instead request that the full Senate vote on questions, they also state that a single Senator could instead request that the full Senate vote on
any such question. In that case, pursuant to this rule, the question is not debatable, and a majority any such question. In that case, pursuant to this rule, the question is not debatable, and a majority
of Senators voting would determine the outcome. (By precedent, House Managers or counsel for of Senators voting would determine the outcome. (By precedent, House Managers or counsel for
the impeached could not ask that a question be submitted to the Senate.the impeached could not ask that a question be submitted to the Senate.
9393) The published ) The published
precedents state that all decisions of the chair are subject to appeal.precedents state that all decisions of the chair are subject to appeal.
94
94
If a ruling concerning the admissibility of evidence is appealed (or if the presiding officer submits If a ruling concerning the admissibility of evidence is appealed (or if the presiding officer submits
such a question), the question put to the Senate is, such a question), the question put to the Senate is,
“"Is the evidence admissible?Is the evidence admissible?
”95"95 In the case of In the case of
other procedural issues the Senate would vote on, the phrasing of the question put to the Senate other procedural issues the Senate would vote on, the phrasing of the question put to the Senate
could vary with the question. For example, in 1986, during the trial of Judge Claiborne, the could vary with the question. For example, in 1986, during the trial of Judge Claiborne, the
presiding officer ruled, in response to a motion by the defense counsel and at the request of the presiding officer ruled, in response to a motion by the defense counsel and at the request of the
majority leader, majority leader,
“"It is the ChairIt is the Chair
’'s determination that the question of standard of evidence is for s determination that the question of standard of evidence is for
each Senator to decide individually when voting on Articles of Impeachment.each Senator to decide individually when voting on Articles of Impeachment.
”96"96 A Senator A Senator
requested that the Senate vote on the question instead, and the presiding officer put the question requested that the Senate vote on the question instead, and the presiding officer put the question
on whether the motion of the counsel for the impeached judge—that the Senate establish a on whether the motion of the counsel for the impeached judge—that the Senate establish a
“"beyond a reasonable doubtbeyond a reasonable doubt
”" standard of proof in the trial—was standard of proof in the trial—was
“"well taken.well taken.
”" By a vote of 17 By a vote of 17
yeas and 75 nays (yeas and 75 nays (
8eight Senators not voting), the Senate voted that the motion was not well taken, Senators not voting), the Senate voted that the motion was not well taken,
effectively agreeing with the ruling of the presiding officer.effectively agreeing with the ruling of the presiding officer.
97
97
The Senate, in short, is the final arbiter on any procedural questions. Impeachment Rule VII states The Senate, in short, is the final arbiter on any procedural questions. Impeachment Rule VII states
that that
“"the vote shall be taken in accordance with the Standing Rules of the Senate.the vote shall be taken in accordance with the Standing Rules of the Senate.
”98"98 That means That means
these questions could be settled by roll call vote, but only if that request for the yeas and nays is these questions could be settled by roll call vote, but only if that request for the yeas and nays is
supported by supported by
1/5one-fifth of a quorum (11 Senators), or, if the Senate recently voted, of a quorum (11 Senators), or, if the Senate recently voted,
1/5one-fifth of the Senators of the Senators
who voted.who voted.
The impeachment rules make several other references to the presiding officer of the trial.The impeachment rules make several other references to the presiding officer of the trial.
99 99 Impeachment Rule IV restates the constitutional requirement that when the President of the Impeachment Rule IV restates the constitutional requirement that when the President of the
United States has been impeached, the Chief Justice of the United States shall serve as the United States has been impeached, the Chief Justice of the United States shall serve as the
presiding officer. Impeachment Rule III tasks the presiding officer with administering the oath to presiding officer. Impeachment Rule III tasks the presiding officer with administering the oath to
Senators. Rule V grants him general power to execute decisions of the Senate where necessary Senators. Rule V grants him general power to execute decisions of the Senate where necessary
(which would include, for example, signing a summons the Senate ordered to be issued to the (which would include, for example, signing a summons the Senate ordered to be issued to the
person impeached, or signing a subpoena that the Senate had agreed to issue). Rule XIII directs person impeached, or signing a subpoena that the Senate had agreed to issue). Rule XIII directs
the presiding officer to cause the proclamation to be declared at the start of each day commanding the presiding officer to cause the proclamation to be declared at the start of each day commanding
those present to keep silent. Rule XVI requires that the parties to the case—the House Managers those present to keep silent. Rule XVI requires that the parties to the case—the House Managers
and the impeached officer and his counsel—address the presiding officer when proposing and the impeached officer and his counsel—address the presiding officer when proposing
motions, objecting to proceedings, or making any request related to the trial. As mentioned above, motions, objecting to proceedings, or making any request related to the trial. As mentioned above,
Rule XIX requires the presiding officer to read aloud any question submitted in writing by a Rule XIX requires the presiding officer to read aloud any question submitted in writing by a
93 Procedure and Guidelines for Impeachment Trials, p. 36. 94 Procedure and Guidelines for Impeachment Trials, p. 35. 95 Procedure and Guidelines for Impeachment Trials, p. 52. 96 Congressional Record, vol. 132 (October 7, 1986), p. 29152. For more information on the Senate’s decision not to establish by rule or precedent a standard of proof for impeachment trials, see CRS Report R46013, Impeachment and
the Constitution, by Jared P. Cole and Todd Garvey, pp. 48-51.
97 Congressional Record, vol. 132 (October 7, 1986), pp. 29152-29153. 98 For more information, see CRS Report 96-452, Voting and Quorum Procedures in the Senate, coordinated by Elizabeth Rybicki.
99 In the opinion of one scholar of the U.S. Senate, “The rules make evident the intent that when the Senate is sitting for the trial of an impeachment, the presiding officer shall act as the agent or mouthpiece of the Senate and not as an independent authority” (George H. Haynes, The Senate of the United States, Reissue of 1938 edition ed., vol. II [New York: Russell & Russell, 1960], p. 847).
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Senator. The presiding officer also puts the question on the vote on the articles of impeachment, pursuant to Rule XXIII and as described above.
The presiding officer of the trial can vote when he or she is a Senator. If the Vice President is presiding over a trial, and if there is a tie vote, then the Vice President may vote. In presidential impeachment trials, however, the Vice President cannot preside and cannot vote.100 The Chief Justice, when presiding over an impeachment trial, would not be expected to vote, even in the case of a tie.101 If a vote on a question results in a tie, the question is decided in the negative.
Conducting Legislative and Executive Business
Senator. The presiding officer also puts the question on the vote on the articles of impeachment, pursuant to Rule XXIII and as described above.
The presiding officer of the trial can vote when he or she is a Senator. If the Vice President is presiding over a trial, and if there is a tie vote, then the Vice President may vote. In presidential impeachment trials, however, the Vice President cannot preside and cannot vote.100 The Chief Justice, when presiding over an impeachment trial, would not be expected to vote, even in the case of a tie.101 If a vote on a question results in a tie, the question is decided in the negative.
Constitutional Points of Order Against Articles of Impeachment
In two recent instances of impeachment, points of order were raised at an early stage of Senate proceedings that the articles of impeachment received from the House were unconstitutional. Under long-standing Senate precedents, the presiding officer does not issue a ruling in relation to a constitutional point of order.102 Instead, the point of order is submitted to the Senate. In other words, the Senate, by majority vote, determines if an action the Senate is about to take violates the Constitution.103 If the Senate votes that a point of order against an article of impeachment is well taken, then the article of impeachment is considered to have fallen in the Senate.
In 2021, immediately after Senators were sworn in to consider the second impeachment of President Trump, a point of order was made that the proceedings "would try a private citizen and not a President, a Vice President, or a civil officer" and therefore violated the Constitution. The presiding officer submitted the question to the Senate: Is the point of order well taken? The majority leader made brief remarks and then moved to table the point of order. The motion to table was agreed to, 55-45.104 The procedural effect of disposing of the point of order with a motion to table is that the point of order is considered not well taken; in this case, the procedural decision was that the article of impeachment was constitutional.
In 2024, before a summons was issued to the impeached Secretary of Homeland Security pursuant to Impeachment Rule VIII, the majority leader raised a constitutional point of order against the first of two articles of impeachment sent by the House. Specifically, the leader stated:
I raise a point of order that impeachment article I does not allege conduct that rises to the level of a high crime or misdemeanor, as required under article II, section 4 of the U.S. Constitution and is, therefore, unconstitutional.105
The presiding officer submitted the question to the Senate: Is the point of order well taken? A quorum call and several motions were made before the Senate proceeded to vote on the point of order. The point of order was well taken, with Senators voting affirmatively 51-48, and one Senator being recorded as present.106 As a result, the first article of impeachment was deemed unconstitutional by the Senate. An identical point of order was raised against the second article of impeachment. Senators once again offered a number of motions and attempted other parliamentary actions in response to this second point of order before the Senate affirmed, by a vote of 51-49, that the point of order was well taken.107 Later that day, the Senate transmitted a message informing the House of Representatives that articles of impeachment against the Secretary of Homeland Security were dismissed. 108
Conducting Legislative and Executive Business
When the Senate convenes as a Court of Impeachment, it is in a distinct procedural mode, When the Senate convenes as a Court of Impeachment, it is in a distinct procedural mode,
different from legislation session, where it considers bills and resolutions, and executive session, different from legislation session, where it considers bills and resolutions, and executive session,
where it considers treaties and nominations. In addition to having its own set of rules, the Court where it considers treaties and nominations. In addition to having its own set of rules, the Court
of Impeachment also keeps a separate Journal.of Impeachment also keeps a separate Journal.
102109 (The Journal is the Constitutionally (The Journal is the Constitutionally
- required required
record of parliamentary actions taken by the Senate.) Business in these distinct procedural modes record of parliamentary actions taken by the Senate.) Business in these distinct procedural modes
is kept entirely separate. For example, bills and resolutions cannot be introduced when the Senate is kept entirely separate. For example, bills and resolutions cannot be introduced when the Senate
is in the mode of sitting for the trial, and committee reports cannot be filed. This might mean that is in the mode of sitting for the trial, and committee reports cannot be filed. This might mean that
the Senate chooses to spend some period of a day meeting in legislative or executive session and the Senate chooses to spend some period of a day meeting in legislative or executive session and
also spend a period meeting as Court of Impeachment, in order to provide an opportunity for also spend a period meeting as Court of Impeachment, in order to provide an opportunity for
other actions to occur.other actions to occur.
For some legislative actions, unanimous consent may effectively be required. Notably, the Senate For some legislative actions, unanimous consent may effectively be required. Notably, the Senate
must have a period for must have a period for
“"morning businessmorning business
”" in legislative session for various actions to occur— in legislative session for various actions to occur—
including the introduction of legislation and the filing of committee reports. In modern practice, including the introduction of legislation and the filing of committee reports. In modern practice,
this is provided for in unanimous consent agreements for each day the Senate meets.this is provided for in unanimous consent agreements for each day the Senate meets.
103110 The The
Senate would need to reach a similar unanimous consent agreement for legislative sessions held Senate would need to reach a similar unanimous consent agreement for legislative sessions held
on days during the trial in order for these actions to be allowed. Alternatively, the Senate could on days during the trial in order for these actions to be allowed. Alternatively, the Senate could
agree by unanimous consent to arrange other methods for these actions to occur, even though the agree by unanimous consent to arrange other methods for these actions to occur, even though the
Senate has not met that day in legislative session.104
100 It is the practice of the Senate that the Vice President can only vote to break a tie while presiding. The form used by the Vice President to vote is that, as presiding officer, he first announces the result of the vote, then states, “The Senate being equally divided, the Vice President votes in the ___ and the (proposition) is____.” Riddick’s Senate Procedure, p. 1394.
101 During the trial of President Andrew Johnson, the Chief Justice voted on two occasions to break a tie. This was controversial at the time, and he did not vote in all instances of ties. For more information, see Procedure and
Guidelines for Impeachment Trials, pp. 40-42. In response to a parliamentary inquiry in 2020, Chief Justice John Roberts stated that he was aware of these two instances, adding, “The one concerned a motion to adjourn. The other concerned a motion to close deliberations. I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties. If the Members of this body, elected by the people and accountable to them, divide equally on a motion, the normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed” (Congressional Record, daily edition, vol. 166 [January 31, 2020], p. S767). 102 Senate Standing Rule IV, paragraph 1(d) states that “The legislative, executive, the confidential legislative proceedings, and the proceedings when sitting as a Court of Impeachment, shall each be recorded in a separate book.” 103 For each day that the Senate meets, it agrees by unanimous consent that the Journal of the previous day be considered agreed to, that the morning hour be deemed expired, and that there be a period for “morning business.” In the absence of unanimous consent, these parliamentary actions would instead be required to occur each new legislative day, and they have the potential to be time consuming.
104 In 2020, for example, the Senate reached a unanimous consent agreement during the Trump trial that on January 28, 2020, from 10 to 11 a.m., “the Senate can receive House messages and executive matters, committees be authorized to (continued...)
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The impeachment rules provide for the Senate to convene for an impeachment trial at noon (Rule XIII) every day except Sunday after a trial has begun (Rule III). While this might have been the expected schedule in the middle of the 19th century, the impeachment rules also provide for the Senate to modify this schedule by “order.” In modern practice, the Senate has adjusted the meeting days and times. Most often, the Senate agreed by unanimous consent to the time of the next meeting. Alternatively, a motion to adjourn the Senate sitting in a trial of impeachment to a time certain is subject to amendment, but it is not debatable and could be agreed to by majority vote.105 The Senate also could agree to an order altering the default time for the Senate to sit for the trial each day, and this order would not be subject to debate. In short, a numerical majority can determine the day and times of meeting for an impeachment trial.
Impeachment Rule XIII also provides that, when the trial adjourns, the Senate resumes consideration of legislative (or executive) business. The Rule states, “(t)he adjournment of the Senate sitting in said trial shall not operate as an adjournment of the Senate.” As a result, it is possible for the Senate to convene to conduct business in legislative (or executive) session before noon, convene the trial at noon pursuant to the rules (or at some other time if decided by the Senate), adjourn the impeachment trial for the day and return to legislative (or executive) session to conduct more business. The Senate could also meet for other purposes on days the Senate is not meeting for the trial.
In the modern judicial trials and during the Clinton trial and the two Trump trials, the Senate did conduct other business on some of the days on which it also considered articles of impeachment. Limited legislative business was accomplished during the six weeks of the Clinton trial, but that trial occurred at the very start of the 106th Congress (1999-2000), while committees were still organizing and legislation may have still been developing. It was also the case that the Senate conducted very little other floor business during the three-week-long Trump trial in 2020 and the one-week-long Trump trial in 2021. During the Clinton trial and both Trump trials, however, committees held hearings as well as markups during the trial, and committees reported matters on some trial days pursuant to unanimous consent agreements discussed above. Other factors could certainly affect the ability of the Senate to approve legislation while a trial is being conducted. Bipartisan support is generally necessary to take up most legislation in the Senate, and forming such coalitions could be challenging if the impeachment proceedings are contentious. The attention of Senators and their staff might also be expected to be directed toward impeachment proceedings.
In addition, it is not clear how some procedures that apply to the consideration of legislation and nominations in the Senate are impacted when the Senate sits for an impeachment trial. For example, if cloture was filed on a matter in legislative session, and the Senate was sitting in trial when the cloture motion matured, it is not clear if the Senate would vote on the cloture motion at
report legislative and executive matters, and Senators be allowed to submit statements for the Record, bills and resolutions and cosponsor requests” (Congressional Record, daily edition, vol. 166 [January 22, 2020], p. S485. The Senate also agreed by unanimous consent that there be a period for morning business on three of the later days of the trial (Congressional Record, daily edition, vol. 166 [January 31, 2020], p. S769). The Senate reached multiple unanimous consent agreements during the Clinton trial concerning these matters. For example, the Senate, during the 1999 trial of President Clinton, agreed on January 15, 1999, by unanimous consent that there be a period of morning business when the Senate next convened on January 19 (Congressional Record, daily edition, vol. 145 [January 15, 1999], p. S259). On January 23, 1999, the Senate agreed by unanimous consent that “in the Record following today’s proceedings there appear a period of morning business to accommodate bills and statements that have been submitted during the day by Senators” (Congressional Record, daily edition, vol. 145 [January 23, 1999], p. S956). 105 Although there are a few instances of the presiding officer advising that a motion to adjourn to a time certain is not in order during an impeachment trial, the Senate’s published precedents state that more recent decisions and practices “do not conform” to these rulings. See Procedure and Guidelines for Impeachment Trials, p. 34.
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that time, or instead not until it adjourned the trial for the day. It is also not clear how legislation to be considered under expedited procedure statutes, such as the Congressional Review Act, the War Powers Resolution, or the Trade Act (each of which provide for specific Senate actions at times certain) could be impacted by a Senate trial.
Author Information
Elizabeth Rybicki
Michael Greene
Specialist on Congress and the Legislative Process
Analyst on Congress and the Legislative Process
Acknowledgments
The content of this report was greatly improved by the contributions of Richard S. Beth, Christopher M. Davis, Valerie Heitshusen, and C. Stephen Redhead. The authors are also grateful for the research assistance of Susan Jane Garza.
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.
Congressional Research Service
R46185 · VERSION 6 · UPDATED
25 Senate has not met that day in legislative session.111
The impeachment rules provide for the Senate to convene for an impeachment trial at noon (Rule XIII) every day except Sunday after a trial has begun (Rule III). While this might have been the expected schedule in the middle of the 19th century, the impeachment rules also provide for the Senate to modify this schedule by "order." In modern practice, the Senate has adjusted the meeting days and times. Most often, the Senate agreed by unanimous consent to the time of the next meeting. Alternatively, a motion to adjourn the Senate sitting in a trial of impeachment to a time certain is subject to amendment, but it is not debatable and could be agreed to by majority vote.112 The Senate also could agree to an order altering the default time for the Senate to sit for the trial each day, and this order would not be subject to debate. In short, a numerical majority can determine the day and times of meeting for an impeachment trial.
Impeachment Rule XIII also provides that, when the trial adjourns, the Senate resumes consideration of legislative (or executive) business. The Rule states, "[t]he adjournment of the Senate sitting in said trial shall not operate as an adjournment of the Senate." As a result, it is possible for the Senate to convene to conduct business in legislative (or executive) session before noon, convene the trial at noon pursuant to the rules (or at some other time if decided by the Senate), adjourn the impeachment trial for the day and return to legislative (or executive) session to conduct more business. The Senate could also meet for other purposes on days the Senate is not meeting for the trial.
In the modern judicial trials and during the Clinton trial and the two Trump trials, the Senate did conduct other business on some of the days on which it also considered articles of impeachment. Limited legislative business was accomplished during the six weeks of the Clinton trial, but that trial occurred at the very start of the 106th Congress (1999-2000), while committees were still organizing and legislation may have still been developing. It was also the case that the Senate conducted very little other floor business during the three-week-long Trump trial in 2020 and the one-week-long Trump trial in 2021. During the Clinton trial and both Trump trials, however, committees held hearings as well as markups during the trial, and committees reported matters on some trial days pursuant to unanimous consent agreements discussed above. Other factors could certainly affect the ability of the Senate to approve legislation while a trial is being conducted. Bipartisan support is generally necessary to take up most legislation in the Senate, and forming such coalitions could be challenging if the impeachment proceedings are contentious. The attention of Senators and their staff might also be expected to be directed toward impeachment proceedings.
In addition, it is not clear how some procedures that apply to the consideration of legislation and nominations in the Senate are impacted when the Senate sits for an impeachment trial. For example, if cloture was filed on a matter in legislative session, and the Senate was sitting in trial when the cloture motion matured, it is not clear if the Senate would vote on the cloture motion at that time, or instead not until it adjourned the trial for the day. It is also not clear how legislation to be considered under expedited procedure statutes, such as the Congressional Review Act or the War Powers Resolution (each of which provide for specific Senate actions at times certain) could be impacted by a Senate trial.
The content of this report was greatly improved by the contributions of Richard S. Beth, Christopher M. Davis, Valerie Heitshusen, and C. Stephen Redhead. The authors are also grateful for the research assistance of Susan Jane Garza.
Footnotes
| 1.
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Nixon v. United States, 506 U.S. 224, 225 (1993).
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| 2.
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Nixon v. United States, 506 U.S. 224, 230 (1993).
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| 3.
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Of the 17 completed impeachment trials, all but five—President Donald Trump in 2020 and 2021, President Bill Clinton, President Andrew Johnson, and Secretary of War William W. Belknap—were regarding federal judges. For more information on judicial impeachment procedures, see archived CRS Report R41172, The Role of the Senate in Judicial Impeachment Proceedings: Procedure, Practice, and Data, by Betsy Palmer.
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| 4.
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The Senate produced a comprehensive four-volume set containing a complete record of its proceedings on the impeachment trial of President Clinton. See U.S. Congress, Senate, Proceedings of the United States Senate in the Impeachment Trial of President William Jefferson Clinton, 106th Cong., 1st sess., February 12, 1999, S.Doc. 106-4 (Washington: GPO, 2000). In addition, miscellaneous Senate publications related to the impeachment trial of President Clinton have been compiled by GPO at this website: https://www.govinfo.gov/content/pkg/GPO-MISCSPUB/html/GPO-MISCSPUB.html. The Senate compiled a similar four-volume set chronicling the proceedings of the impeachment trial of President Trump. See U.S. Congress, Senate, Proceedings of the United States Senate in the Impeachment Trial of President Donald John Trump, 116th, 2nd sess., January 27, 2020, S.Doc. 116-12 (Washington: GPO, 2020). GPO also produced a digital compilation on the impeachment of President Trump at https://www.govinfo.gov/collection/impeachment-related-publications.
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| 5.
|
Asher C. Hinds, Hinds' Precedents of the House of Representatives of the United States (Washington: GPO, 1907) (hereinafter Hinds), vol. 3, §2303 and §2331.
|
| 6.
|
Hinds, vol. 3, §2348; §2372 and §2393.
|
| 7.
|
Congressional Globe, February 29, 1822, p. 1522.
|
| 8.
|
Most of the rules were the same or very similar to rules agreed to in 1804 for the trial of Justice Samuel Chase. For details, see CRS memorandum, "Evolution of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials," by Robert L. Thornton, September 3, 1974, published in U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials (Pursuant to S.Res. 370), 93rd Cong., 2nd sess., August 22, 1974, 93-1125 (Washington: GPO, 1974), pp. 54-77.
|
| 9.
|
Congressional Globe, February 29, 1822, p. 1520.
|
| 10.
|
Gerald Gamm and Steven S. Smith, "Emergence of Senate Party Leadership," in U.S. Senate Exceptionalism, ed. Bruce I. Oppenheimer (Columbia: Ohio State University Press, 2002), pp. 224-226.
|
| 11.
|
The Senate, at the start of the Johnson trial, agreed to correct "a clerical error in the rules" to allow the Senate to take a division or voice vote on a question submitted by the presiding officer, instead of mandating that the vote be by the yeas and nays. See Congressional Globe, "Supplement Containing the Proceedings of Senate Sitting for the Trial of Andrew Johnson, President of the United States" (hereinafter "Johnson Supplement"), March 13, 1868, p. 7. The Senate also amended Rule VII to settle that the presiding officer could issue an initial ruling on a question, which would then be submitted to the full Senate at the request of any Senator. Some Senators thought the original rule prohibited the presiding officer from ruling at all, and instead required all questions to be submitted to the Senate. (See Congressional Globe, "Johnson Supplement," March 31, 1868, pp. 59-63.) The third change was to add to then-Rule XXIII (now Rule XXIV) the sentence clarifying that the 15-minute limit on debate on the final question is 15 minutes in total, not 15 minutes on each article. (See Congressional Globe, "Johnson Supplement," May 7, 1868, p. 409.)
|
| 12.
|
George H. Haynes, The Senate of the United States, Reissue of 1938 edition, vol. II (New York: Russell & Russell, 1960), p. 845. In 1912, during the trial of Judge Archbald, a Senator submitted a resolution in legislative session regarding amendments to the impeachment rules that would allow the Judiciary Committee to hear testimony and report findings of facts in future impeachment trials of lower-level officers (Congressional Record, vol. 49 [December, 16, 1912], pp. 698-699). The Senate did not act on the resolution.
|
| 13.
|
Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. (Chicago: University of Chicago Press, 200), p. 34; Congressional Record, vol. 79 (May 28, 1935), pp. 8309-8310.
|
| 14.
|
S.Res. 370, 93rd Congress. The Senate also referred to the Rules Committee a resolution (S.Res. 371, 93rd Congress) to permit television and radio coverage of the impeachment trial, something that would not otherwise have been permitted in 1974. Senate floor procedures were not televised until 1986.
|
| 15.
|
For transcripts of the meetings with the Senate Parliamentarian, see U.S. Congress, Senate Committee on Rules and Administration, Subcommittee on the Standing Rules, Directing the Senate Committee on Rules and Administration To Study the Senate Rules and Precedents Applicable to Impeachment Trials, Unpublished Transcript, 93rd Cong., 2nd sess., July 31, 1974; and Comparison of Proposed Rules of the Senate of the U.S. When Sitting as a Court of Impeachment and Present Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials (hereinafter Comparison of Proposed Rules), Unpublished Transcript, 93rd Cong., 2nd sess., August 1, 1974.
|
| 16.
|
For a description of the proposed changes, see Rich Spencer, "Mansfield Offers New Rules for Senate Impeachment Trial," Boston Globe, July 31, 1974, p. 11. Among the proposals that the Rules Committee did not report were one requiring that the Senate adopt a "clear and convincing" evidence standard and one to allow amendments to articles of impeachment in the Senate if they were authorized by the House.
|
| 17.
|
U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules and Procedure and Practice in the Senate When Sitting on Impeachment Trials, report to accompany S.Res. 390, 93rd Cong., 2nd sess., August 22, 1974, S.Rpt. 93-1125 (Washington: GPO, 1974), p. 20.
|
| 18.
|
U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, 99th Cong., 2nd sess., August 13, 1986, S.Rpt. 99-401 (Washington: GPO, 1986); S.Res. 479, 99th Congress, agreed to by voice vote August 16, 1986.
|
| 19.
|
U.S. Congress, Senate, Senate Manual, Containing the Standing Rules, Orders, Laws, and Resolutions Affecting the Business of the United States Senate, 117th Cong., 1st sess., S.Doc. 117-1 (Washington: GPO, 2023), pp. 217-225; and U.S. Congress, Senate, Procedure and Guidelines for Impeachment Trials in the United States Senate, prepared pursuant to Senate Resolution 439, 99th Congress, 2nd sess., prepared by Floyd M. Riddick and Robert B. Dove, 99th Cong., 2nd sess., August 15, 1986, S.Doc. 99-33 (Washington: GPO, 1986) (hereinafter Procedure and Guidelines for Impeachment Trials).
|
| 20.
|
Procedure and Guidelines for Impeachment Trials, p. 8.
|
| 21.
|
The language of the rule reflects the 19th century House practice of voting to impeach an officer—and notifying the Senate of this fact—prior to drafting articles of impeachment. Since the 1912 impeachment of Robert W. Archbald (U.S. Circuit Judge, designated as a member of the Commerce Court) the House has included articles of impeachment in the resolution impeaching the officer. On the Archbald impeachment, see Clarence Cannon, Cannon's Precedents of the House of Representatives of the United States (Washington: GPO, 1935), vol. VI, §499.
|
| 22.
|
The resolutions, for example, typically allow the House managers to hire clerical and legal assistants, to issue subpoenas, and to file with the Secretary of the Senate requested formal statements, referred to as "pleadings," which in this context could include a written response to the impeached officer's answer to the articles and trial briefs.
|
| 23.
|
On January 19, 2021, the Senate received a message that the House had impeached the President and that managers were appointed. The majority leader asked pursuant to Impeachment Rule I that the House be informed that the Senate received its message. In this case, there was not a unanimous consent agreement specifying the time for presentation (Congressional Record, daily edition, vol. 167 [January 19, 2021], p. S49). On January 21, the House received a message from the Secretary of the Senate that the Senate was ready to receive managers appointed by the House (Congressional Record, daily edition, vol. 167 [January 21, 2021], p. H209). On January 22, the Senate majority leader announced that the Speaker had informed him that the article would be delivered on Monday, which was the next day the House would be in session (Congressional Record, daily edition, vol. 167 [January 22, 2021], p. S95). On January 25, the House managers delivered and presented the articles of impeachment (Congressional Record, daily edition, vol. 167 [January 25, 2021], p. S4124). A unanimous consent agreement also was not reached when the Senate received from the House a message that the House had impeached the Secretary of Homeland Security on April 16, 2024. Directly after receipt of the message, the Senate Sergeant at Arms announced the presence of House managers, and they were escorted to the well of the Senate where they delivered and presented the articles of impeachment (Congressional Record, daily edition, vol. 170 [April 16, 2024], p. S2765).
|
| 24.
|
When the Rules and Administration Committee reviewed the impeachment rules in 1974, a question was raised whether the Secretary of the Senate should be charged with the function of immediately informing the House that the Senate was ready to receive the managers. The Senate Parliamentarian informed the committee that in all prior cases, the Secretary of the Senate had informed the House only after the Senate adopted an order directing him to do so. Some Senators, including the chair, commented that these precedents would be sufficient and a rules change would not be necessary, and the Committee did not recommend a change to the language of the rule. See Comparison of Proposed Rules, Unpublished Transcript, 93rd Cong., 2nd sess., August 1, 1974, pp. 29-32.
|
| 25.
|
At this point, even if the articles of impeachment are against a President of the United States, the presiding officer is the regular presiding officer of the Senate—either the Vice President, the President pro tempore, or an Acting President pro tempore.
|
| 26.
|
During the impeachment trial of President Trump in 2020, the articles of impeachment were exhibited by the chair of the House Permanent Select Committee on Intelligence, Representative Adam Schiff (Congressional Record, daily edition, vol. 166 [January 16, 2020], pp. S266-S267). The impeachment inquiry into President Trump was jointly conducted by several committees in the House of Representatives, including the Permanent Select Committee on Intelligence, Committee on Financial Services, Committee on Foreign Affairs, Committee on the Judiciary, Committee on Oversight and Reform, and the Committee on Ways and Means (see H.Res. 660, 116th Congress). During the impeachment trial of President Trump in 2021, the articles of impeachment were presented by Representative Jamie Raskin, a Member of the Judiciary Committee and former professor of constitutional law.
|
| 27.
|
U.S. Congress, House, Deschler's Precedents of the United States House of Representatives, prepared by Lewis Deschler, 94th Cong., 2nd sess., H.Doc. 94-661 (Washington: GPO, 1977) (hereinafter Deschler), chapter 14 §10.1; for recent examples, see also Congressional Record, vol. 137 (August 9, 1988), p. 21170, and vol. 156 (March 17, 2010), p. 3622.
|
| 28.
|
In the second impeachment trial of President Trump, after the presentation of the article of impeachment by the House managers, the Senate agreed by unanimous consent that the Senate proceed to the consideration of the article the next day at 2:30 p.m. (Congressional Record, daily edition, vol. 167 [January 25, 2021], p. S125). In the 2024 impeachment of the Secretary of Homeland Security, following the reading of the articles, the majority leader announced that, pursuant to the Senate Impeachment Rules, Senators would be sworn in the next day at 1 p.m. (Congressional Record, daily edition, vol. 170 [April 16, 2024], p. S2765).
|
| 29.
|
Article I, Section 3, clause 6.
|
| 30.
|
This provision of the impeachment rules was added in response to the Chief Justice, in 1868, bringing an associate justice to administer the oath to him. U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules and Procedure and Practice in the Senate When Sitting on Impeachment Trials, 93rd Cong., 2nd sess., August 22, 1974, 93-1125 (Washington: GPO, 1974), pp. 28-29; and Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, 99th Cong., 2nd sess., August 13, 1986, 99-401 (Washington: GPO, 1986), pp. 3-4.
|
| 31.
|
The second impeachment trial of President Trump began after the President had left office, and the Chief Justice did not preside.
|
| 32.
|
Procedure and Guidelines for Impeachment Trials, pp. 76-77. For example, the Senate has granted requests of Senators to be excused for reasons of having a personal connection with the impeached officer (Congressional Record, vol. 80 [March 12, 1936], p. 3646) and for having been in the House the previous Congress when the House voted to impeach (Congressional Record, vol. 135 [March 15, 1989], p. 4220, and [December 7, 2010], p. 19012).
|
| 33.
|
Impeachment Rule VIII, which is reflected in the form of the summons in Impeachment Rule XXV, states that the person impeached shall be notified to appear before the Senate at a set day and time. It is not necessary that the impeached officer personally appear, however. Impeachment Rule X states that the person impeached shall be called to appear to answer the articles, and that, "if he appears, or any person for him, the appearance shall be recorded, stating particularly if by himself, or by agent or attorney"—provisions permitting the accused to be represented by another person. While impeached judges have attended their trials on the Senate floor, including in the 1980s, neither President Johnson nor President Clinton attended their impeachment trials.
|
34.
|
For example, on January 21, 2021, in the second impeachment of President Trump, the Senate agreed to S.Res. 16 which required that a summons be issued and an answer be filed by noon on February 2 and the replication by House managers be filed by noon February 8. On January 16, 2020, in the first impeachment trial of President Trump, the Senate agreed by unanimous consent to issue a summons and require an answer to be filed by 6 p.m. on January 18, with the replication by House managers to be filed by noon on January 20 (Congressional Record, daily edition, vol. 166 [January 16, 2020], p. S268). On January 8, 1999, in the impeachment trial of President Clinton, the Senate agreed to a resolution (S.Res. 16) requiring that an answer to the summons be filed by noon on January 11 and the replication of the House managers be filed by noon on January 13. On August 14, 1986, in the impeachment trial of Judge Harry Claiborne, the Senate agreed to a resolution (S.Res. 480) requiring that an answer be filed no later than September 8 and the replication no later than September 15.
| 35.
|
Congressional Record, daily edition, vol. 145 (January 6, 1999), pp. S7-S8.
|
| 36.
|
Congressional Record, daily edition, vol. 167 (February 8, 2021), p. S588 and Congressional Record, daily edition, vol. 166 (January 15, 2020), p. S235. Unlike the Clinton impeachment trial, for which ticket allocation was agreed to on the floor by unanimous consent, it appears that ticketing for the 2020 Trump impeachment trial was the result of an agreement between the majority and minority leaders (see "Dear Colleague" letter from Mitch McConnell, Majority Leader, and Charles E. Schumer, Democratic Leader, January 15, 2020, https://www.cnn.com/2020/01/15/politics/dear-colleague-senate-impeachment-trial/index.html).
|
| 37.
|
A majority of Senators voting, a quorum being present, can invoke cloture on a nomination, and two-thirds of Senators voting, a quorum being present, is necessary to invoke cloture on a proposal amending Senate rules. For more information on cloture, see CRS Report RL30360, Filibusters and Cloture in the Senate, by Valerie Heitshusen and Richard S. Beth.
|
| 38.
|
Some other motions that might be made during an impeachment trial, such as a motion to suspend the Standing Rules of the Senate, require a two-thirds vote.
|
| 39.
|
Procedure and Guidelines for Impeachment Trials, p. 35.
|
| 40.
|
It took the Senate approximately 13 hours to hear debate and vote on all 11 amendments before voting along party lines to adopt the resolution, 53-47. Congressional Record, daily edition, vol. 166 (January 21, 2020), pp. S377-S431.
|
| 41.
|
Riddick's Senate Procedure, pp. 807-808.
|
| 42.
|
In impeachment trials other than for a President, when the Vice President is presiding, the Vice President can vote to break ties. See section below, "Senate Interpretation of the Impeachment Rules and the Role of the presiding officer."
|
| 43.
|
Procedure and Guidelines for Impeachment Trials, p. 69. The quorum requirement is also enforced using the same procedures used in legislative or executive session (Riddick's Senate Procedure, p. 873).
|
| 44.
|
It is possible that some precedents of the Senate could inform what can be included in an order or resolution affecting trial procedures. For example, in a ruling during the 1999 trial of President Clinton, the Chief Justice stated that there "can be no deliberation on any question before the Senate in open session unless the Senate suspends its rules, or consent is granted" (Congressional Record, daily edition, vol. 145 [February 9, 1999], p. S1387). If taken literally, this ruling could mean that the Senate could not, by "order of the Senate," open deliberations, but instead would need unanimous consent or a two-thirds vote to suspend the rules.
|
| 45.
|
For a review of orders the Senate agreed to affecting final arguments between 1868 and 1986, see Procedure and Guidelines for Impeachment Trials, p. 37.
|
| 46.
|
The impeachment rules also do not make clear whether Senators, rather than the parties to the case, could make such motions that would then be argued by each side for one hour. In the President Clinton trial, a Senator offered a motion in relation to a motion that had been offered by the House managers, and the Chief Justice stated, "The Parliamentarian advises me that there are 2 hours of argument on this motion." By unanimous consent, the time was yielded back. (See Congressional Record, daily edition, vol. 145 [February 4, 1999], p. S1209.)
|
| 47.
|
Supplement to the Congressional Globe Containing the Proceedings of the Senate Sitting for the Trial of Andrew Johnson, 40th Cong., 2nd sess. (Washington: F&J Rives & George A. Bailey, 1868), March 13, 1868, p. 6; and Congressional Record, vol. 80 (March 31, 1936), p. 4656.
|
| 48.
|
For example, during the President Clinton impeachment trial, the Senate established in S.Res. 16 that a motion to subpoena witnesses or present evidence not in the record was in order and debatable by the trial parties for up to six hours equally divided. The Senate later reduced that debate time to four hours by unanimous consent.
|
| 49.
|
Counsel to Judge Porteous argued that the aggregation of multiple charges in one article of impeachment prevented the Senate from stand-alone judgment on individual charges and made it easier to secure votes towards conviction (Congressional Record daily edition, vol. 156 [December 7, 2010], pp. S8564-S8565).
|
| 50.
|
Such votes would necessarily be "preliminary," because an article of impeachment is not divisible. See the section below, "Voting on Articles of Impeachment."
|
| 51.
|
Congressional Record, vol. 156 (December 8, 2010), p. 19012-3 (for description of motions filed by the defense) and (December 9, 2010), p. 19133-4 (for motion to hold preliminary votes).
|
| 52.
|
Riddick's Senate Procedure, p. 877, describes the motion of the majority leader as a "preferential motion made by a Senator when a motion by one of the parties was pending."
|
| 53.
|
Congressional Record, vol. 132 (October 8, 1986), pp. 29412-29413.
|
| 54.
|
Under regular Senate procedures, the vote on most questions will be by roll call if a request for the yeas and the nays is supported by a second of one-fifth of those present (and a quorum of 51 Senators is assumed to be present). The support of a second is not necessary on proposed orders in an impeachment trial. For more information on securing a roll call vote in legislative or executive session, see CRS Report 96-452, Voting and Quorum Procedures in the Senate, coordinated by Elizabeth Rybicki.
|
| 55.
|
Section 102 of S.Res. 30 provided that after depositions were completed and the Senate had resolved any objections made during the depositions, "Motions may also then be made for orders governing the presentation of evidence and/or the testifying of witnesses before the Senate." The full motion was that the Senate proceed to closing arguments, that the time for closing arguments be limited to two hours each side, and that the Senate then proceed to a vote on the articles.
|
| 56.
|
Congressional Record, vol. 132 (October 7, 1986), p. 29136.
|
| 57.
|
Senate Standing Rule V, paragraph 1.
|
| 58.
|
Motions to suspend the rules were made four times during the Clinton impeachment trial on January 25, January 26, February 9, and February 12, 1999. In each case, prior notices of intent to make such a motion were filed at least one day earlier, pursuant to Senate Rule V. Motions to suspend made on January 25, January 26, and February 12 were each made in order pursuant to unanimous consent agreements (see, for example, Congressional Record, daily edition, vol. 145 [January 25, 1999], p. S962). The motion to suspend made on February 9 was made in order pursuant to language in S.Res. 30. Several notices of intent to offer a motion to suspend the rules were filed in 2024, in relation to the impeachment of the Secretary of Homeland Security, but no motions to suspend the rules were offered. For more information, see CRS congressional distribution memorandum, Senate Actions in Relation to the Impeachment of Alejandro Nicholas Mayorkas, Secretary of Homeland Security, by Michael Greene and Elizabeth Rybicki, available from the authors upon request by congressional staff.
|
| 59.
|
Another impeachment rule exclusively concerning witnesses, Rule XVIII, was first agreed to by the Senate in the trial of Justice Chase in 1805. It provides that if Senators are witnesses, they shall be sworn as witnesses and can provide their testimony from their own desks on the floor.
|
| 60.
|
CRS Report R45653, Congressional Subpoenas: Enforcing Executive Branch Compliance, by Todd Garvey.
|
| 61.
|
Congressional Record, vol. 135 (August 3, 1989), pp. 18474-18475.
|
| 62.
|
U.S. Congress, Senate, Proceedings of the United States Senate in the Impeachment Trial of Alcee L. Hastings, A Judge of the United States District Court for the Southern District of Florida, 101st Cong., 1st sess., S.Doc. 101-18 (Washington: GPO, 1989), pp. 1591-1608.
|
| 63.
|
See, for example, the request by letter for pretrial statements from the Senate Impeachment Trial Committee with respect to articles of impeachment against district judge Harry E. Claiborne: "The statements should identify any witness whom the party proposes to call and should state what the party expects the testimony of the witness to be." (U.S. Congress, Senate, Senate Impeachment Trial Committee, Hearings Before the Senate Impeachment Trial Committee, Part 1 of 4, 99th Cong., 2nd sess., 1986, 99-812 [Washington: GPO, 1986], p. 33). Note, however, that in the trial of President Clinton, the trial brief submitted by the House managers did not list witnesses, and instead stated that their "brief is intended solely to advise the Senate generally of the evidence that the managers intend to produce, if permitted…nor does it necessarily include each and every witness and document that managers would produce" (Congressional Record, daily edition, vol. 145 [January 14, 1999], p. S64).
|
| 64.
|
A motion to subpoena witnesses was agreed to by the Senate, 55-45, during the second impeachment trial of President Trump. During debate on the motion by trial parties, House managers expressed interest in deposing Representative Jamie Herrera Beutler. Counsel to President Trump stated they would need over 100 depositions. After the motion to subpoena witnesses was agreed to, the Senate recessed to allow further discussion on how to proceed. When the Senate resumed session, the trial parties had come to an agreement that allowed a statement from Representative Beutler to be entered into evidence and no witnesses would be subpoenaed for deposition (Congressional Record, daily edition, vol. 167 [February 13, 2021], pp. S717-S719).
|
| 65.
|
Congressional Record, vol. 135 (March 16, 1989), p. 4534.
|
| 66.
|
In the 2020 trial of President Trump, the majority leader announced, at the start of the second day of questioning, that Senators "have been respectful of the Chief Justice's unique position in reading our questions. I want to be able to continue to assure him that that level of consideration for him will continue." The Chief Justice later declined to read a question as submitted by a Senator. Congressional Record, daily edition, vol. 166 (January 30, 2020), pp. S693-S694.
|
| 67.
|
Congressional Record, daily edition, vol. 167 (February 12, 2021), p. S682.
|
| 68.
|
Congressional Record, vol. 156 (December 6, 2010), p. 19002.
|
| 69.
|
Congressional Record, vol. 156 (December 7, 2010), pp. 19047-19048.
|
| 70.
|
U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, 93rd Cong., 2nd sess., August 22, 1974, S.Rept. 93-1125 (Washington: GPO, 1974), p. 32.
|
| 71.
|
For recent examples of resolutions creating trial committees, see S.Res. 203 and S.Res. 458, both from the 111th Congress (2009-2010).
|
| 72.
|
Prior to the rule's amendment in 1986, Impeachment Rule XI required trial committees to consist of 12 Senators. In recommending the removal of this requirement, the Senate Rules Committee suggested that a trial committee's structure should remain undefined to allow flexibility in meeting the needs of future Senate impeachment trials. U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, 99th Cong., 2nd sess., August 13, 1986, S.Rept. 99-401 (Washington: GPO, 1986), p. 5.
|
| 73.
|
See, for example, U.S. Congress, Senate Impeachment Trial Committee, Impeachment Trial Committee on the Articles Against Judge G. Thomas Porteous, Jr., Volume 1 of 3, Part B, 111th Cong., 2nd sess., November 16, 2010, S.Hrg. 111-691 (Washington: GPO, 2010), pp. 1835-1965.
|
| 74.
|
Trial committees have regularly reported that they have a limited mandate to provide a neutral summary of evidence presented and witness testimony heard, and that such committees "have no authority to make recommendations regarding matters as to weight of the evidence or whether the Senate should vote to convict or acquit on the articles of impeachment." U.S. Congress, Senate Impeachment Trial Committee, Report of the Impeachment Trial Committee on the Articles Against G. Thomas Porteous, Jr., 111th Cong., 2nd sess., November 16, 2010, S.Rept. 111-347 (Washington: GPO, 2010), p. 2.
|
| 75.
|
S.Res. 458, Sec. 4, allowed the chair of the Judge Porteous trial committee to waive Impeachment Rule XIX during the committee's consideration of evidence. The trial committee chose to exercise that authority and Senators posed questions orally to witnesses. See, for example, U.S. Congress, Senate Impeachment Trial Committee, Impeachment Trial Committee on the Articles Against Judge G. Thomas Porteous, Jr., vol. 2 of 3, Part A, 111th Cong., 2nd sess., November 16, 2010, S.Hrg. 111-691 (Washington: GPO, 2010), pp. 242-245.
|
| 76.
|
The actual language of Senate Impeachment Rule XX states that "at all times while the Senate is sitting upon the trial of an impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors be closed while deliberating upon its decisions." Impeachment Rule XXIV is more direct, stating that "the doors shall be closed for deliberation." A parliamentary inquiry was made during the impeachment trial of President Clinton regarding whether it would be in order to proceed to public deliberation. The Chief Justice, as part of his ruling, explained the origins and history of Impeachment Rules XX and XXIV, concluding that despite "some ambiguity between the two rules … there can be no deliberation on any question before the Senate in open session unless the Senate suspends its rules, or consent is granted." Congressional Record, daily edition, vol. 145 (February 9, 1999), p. S1387.
|
| 77.
|
The precedents suggest that, in some cases, this motion may not be repeated. During the 1876 trial of Secretary of War William Belknap, the presiding officer ruled that, after a motion to enter closed session failed by voice vote, another such motion was not in order. The closed session would have been to deliberate whether to extend time for arguments on a procedural question from one hour for each side to two hours for each side. Proceedings of the Senate Sitting for the Trial of William W. Belknap, Late Secretary of War, 44th Cong., 1st sess. (Washington: GPO, 1876), (April 28, 1876), p. 36.
|
| 78.
|
For more information, see CRS Report R42106, Secret Sessions of the House and Senate: Authority, Confidentiality, and Frequency, by Christopher M. Davis. For a discussion of the difference between entering secret session under Senate Rule XXI and Impeachment Rule XX, see U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials (Pursuant to S.Res. 370), 93rd Cong., 2nd sess., August 22, 1974, 93-1125 (Washington: GPO, 1974), p. 37.
|
| 79.
|
More specifically, the authority of Senate Rule XXIX—which pertains to executive sessions—is extended to all closed door sessions by Senate Rule XXI, which states that "when the Senate meets in closed session, any applicable provisions of rules XXIX and XXXI including the confidentiality of information shall apply to any information and to the conduct of any debate transacted."
|
| 80.
|
Trump trial, Congressional Record, daily edition, vol. 166 (January 21, 2020), p. S377; Clinton trial, Congressional Record, daily edition, vol. 145 (January 14, 1999), pp. S59-S60; Porteous trial, Congressional Record, daily edition, vol. 156 (December 7, 2010), p. S8595.
|
| 81.
|
Senate Standing Rule XXIX, paragraph 3.
|
| 82.
|
Expulsion of a Senator requires an affirmative two-thirds vote pursuant to the U.S. Constitution, Article 1, Section 5, clause 2.
|
| 83.
|
Congressional Record, daily edition, vol. 145 (February 9, 1999) pp. S1386-S1387.
|
| 84.
|
Riddick's Senate Procedure, p. 879.
|
| 85.
|
During the impeachment trial of President Andrew Johnson, the Senate agreed to a motion directing that the 11th article of impeachment be read and voted on first.
|
| 86.
|
Rule XXIII was amended in 1986 to include its current language about articles not being divisible. Earlier, an article of impeachment had been divided into three parts by motion, each of which received a separate vote during the 1862 impeachment trial of Judge West Humphreys.
|
| 87.
|
During voting on the two articles of impeachment in the Senate trial of President Clinton, Senator Arlen Specter responded "not proven, therefore, not guilty" reportedly in a reference to a third verdict of "not proved" provided for under Scottish law. Senator Specter explained his vote in remarks inserted into the Congressional Record that "I consulted with the Parliamentarian and examined the Senate precedents and found that if I voted simply 'not proven,' that I would be marked on the voting roles as 'present.' I also found that a response of 'present,' and inferentially the equivalent of 'present,' could be challenged and that I could be forced to cast a vote of 'yea' or 'nay.'" Congressional Record, daily edition, vol. 145 (March 2, 1999), p. S2140.
|
| 88.
|
During the impeachment trial of President Andrew Johnson, the Senate only voted on 3 of 11 articles of impeachment before adjourning sine die. The 8 remaining articles resulted in acquittals in the absence of a two-thirds affirmative vote to convict. Hinds' Precedents, vol. 3, ch. 76, §2443, pp. 900-901.
|
| 89.
|
U.S. Congress, Senate Committee on Rules and Administration, Procedure and Guidelines for Impeachment Trials in the United States Senate, 99th Cong., 2nd sess., August 15, 1986, S.Doc. 99-33 (Washington: GPO, 1986), pp. 77-78.
|
| 90.
|
U.S. Congress, Senate Committee on Rules and Administration, Amending the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, 99th Cong., 2nd sess., August 13, 1986, S.Rept. 99-401 (Washington: GPO, 1986), pp. 9-10.
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| 91.
|
Procedure and Guidelines for Impeachment Trials, pp. 81-82. The Senate has convicted eight impeached officers, all federal judges, and disqualified three from holding future office: Judge West H. Humphreys, 1862; Judge Robert W. Archbald, 1913; and Judge G. Thomas Porteous, 2010. See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis, 2nd ed. (Chicago: University of Chicago Press, 200), p. 78; and Congressional Record, vol. 156 (December 8, 2010), p. 19136.
|
| 92.
|
The question is usually subject to debate, but it can be tabled, which sustains the ruling of the chair. For more information, see CRS Report 98-306, Points of Order, Rulings, and Appeals in the Senate, by Valerie Heitshusen.
|
| 93.
|
Procedure and Guidelines for Impeachment Trials, p. 36.
|
| 94.
|
Procedure and Guidelines for Impeachment Trials, p. 35.
|
| 95.
|
Procedure and Guidelines for Impeachment Trials, p. 52.
|
| 96.
|
Congressional Record, vol. 132 (October 7, 1986), p. 29152. For more information on the Senate's decision not to establish by rule or precedent a standard of proof for impeachment trials, see CRS Report R46013, Impeachment and the Constitution, by Jared P. Cole and Todd Garvey, pp. 48-51.
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| 97.
|
Congressional Record, vol. 132 (October 7, 1986), pp. 29152-29153.
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| 98.
|
For more information, see CRS Report 96-452, Voting and Quorum Procedures in the Senate, coordinated by Elizabeth Rybicki.
|
| 99.
|
In the opinion of one scholar of the U.S. Senate, "The rules make evident the intent that when the Senate is sitting for the trial of an impeachment, the presiding officer shall act as the agent or mouthpiece of the Senate and not as an independent authority" (George H. Haynes, The Senate of the United States, Reissue of 1938 edition ed., vol. II [New York: Russell & Russell, 1960], p. 847).
|
| 100.
|
It is the practice of the Senate that the Vice President can only vote to break a tie while presiding. The form used by the Vice President to vote is that, as presiding officer, he first announces the result of the vote, then states, "The Senate being equally divided, the Vice President votes in the ___ and the (proposition) is____." Riddick's Senate Procedure, p. 1394.
|
| 101.
|
During the trial of President Andrew Johnson, the Chief Justice voted on two occasions to break a tie. This was controversial at the time, and he did not vote in all instances of ties. For more information, see Procedure and Guidelines for Impeachment Trials, pp. 40-42. In response to a parliamentary inquiry in 2020, Chief Justice John Roberts stated that he was aware of these two instances, adding, "The one concerned a motion to adjourn. The other concerned a motion to close deliberations. I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties. If the Members of this body, elected by the people and accountable to them, divide equally on a motion, the normal rule is that the motion fails. I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed" (Congressional Record, daily edition, vol. 166 [January 31, 2020], p. S767).
|
| 102.
|
Riddick's Senate Procedure, p. 989.
|
| 103.
|
When the Senate is not sitting for an impeachment trial, that question is subject to debate; therefore, 60 votes could be necessary to reach a vote on the direct question of whether the point of order is well taken. For more information, see CRS Report R40948, Constitutional Points of Order in the Senate, by Valerie Heitshusen.
|
| 104.
|
Congressional Record, daily edition, vol. 167 (January 26, 2021), pp. S142-S143.
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| 105.
|
Congressional Record, daily edition, vol. 170 (April 17, 2024), p. S2803.
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| 106.
|
Congressional Record, daily edition, vol. 170 (April 17, 2024), p. S2804.
|
| 107.
|
Congressional Record, daily edition, vol. 170 (April 17, 2024), p. S2807. For more information on these proceedings, including the precise motions and parliamentary actions taken before the Senate voted on the points of order, see CRS congressional distribution memorandum, Senate Actions in Relation to the Impeachment of Alejandro Nicholas Mayorkas, Secretary of Homeland Security, by Michael Greene and Elizabeth Rybicki, available from the authors upon request by congressional staff.
|
| 108.
|
Congressional Record, daily edition, vol. 170 (April 17, 2024), p. H2485.
|
| 109.
|
Senate Standing Rule IV, paragraph 1(d) states that "The legislative, executive, the confidential legislative proceedings, and the proceedings when sitting as a Court of Impeachment, shall each be recorded in a separate book."
|
| 110.
|
For each day that the Senate meets, it agrees by unanimous consent that the Journal of the previous day be considered agreed to, that the morning hour be deemed expired, and that there be a period for "morning business." In the absence of unanimous consent, these parliamentary actions would instead be required to occur each new legislative day, and they have the potential to be time consuming.
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| 111.
|
In 2020, for example, the Senate reached a unanimous consent agreement during the Trump trial that on January 28, 2020, from 10 to 11 a.m., "the Senate can receive House messages and executive matters, committees be authorized to report legislative and executive matters, and Senators be allowed to submit statements for the Record, bills and resolutions and cosponsor requests" (Congressional Record, daily edition, vol. 166 [January 22, 2020], p. S485). The Senate also agreed by unanimous consent that there be a period for morning business on three of the later days of the trial (Congressional Record, daily edition, vol. 166 [January 31, 2020], p. S769). The Senate reached multiple unanimous consent agreements during the Clinton trial concerning these matters. For example, the Senate, during the 1999 trial of President Clinton, agreed on January 15, 1999, by unanimous consent that there be a period of morning business when the Senate next convened on January 19 (Congressional Record, daily edition, vol. 145 [January 15, 1999], p. S259). On January 23, 1999, the Senate agreed by unanimous consent that "in the Record following today's proceedings there appear a period of morning business to accommodate bills and statements that have been submitted during the day by Senators" (Congressional Record, daily edition, vol. 145 [January 23, 1999], p. S956).
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| 112.
|
Although there are a few instances of the presiding officer advising that a motion to adjourn to a time certain is not in order during an impeachment trial, the Senate's published precedents state that more recent decisions and practices "do not conform" to these rulings. See Procedure and Guidelines for Impeachment Trials, p. 34.
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