Speaker Nancy Pelosi has now directed the House Judiciary Committee to draft Articles of Impeachment to be presented, probably before Christmas, to the full House to rule on whether or not President Trumputin shall be impeached, and under what Articles. Given the strong Democrat majority in the House, passage should occur, and It is expected that the Senate will receive those Articles by early January, 2020. What happens next?
There have been three Presidential impeachment proceedings to date (Andrew Johnson in 1868; Richard Nixon in 1973-1974; and Bill Clinton in 1988-1989), and many others involving federal judges and other U.S. government officials. Over the years, the Senate has adopted rules relating to impeachment proceedings, based initially on the impeachment wording in the U.S. Constitution:
"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is on trial, the Chief Justice shall preside: And no person shall be convicted without the Concurrence of two-thirds of the Members present."
If "Moscow Mitch" tries to get the trial dismissed before it even begins, some Republican Senators (especially those 18 up for re-election) might object and vote against such dismissal.
Judgment involves only removal from office and disqualification from holding any other U.S. government office, "but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. " (Article I, Section 3, Clauses 6 and 7)
Senate Resolution 439
In 1986, Senate Resolution 439 was adopted, which updated the Senate Impeachment regulations and procedures. Here is what happens:
- The House sends a message to the Senate that it has adopted Articles of Impeachment, and the Senate notifies the House that it is ready to receive those Articles, and adopts a resolution regarding payment of trial expenses.
- The House Managers (probably to be led by Adam Schiff - who managed the last impeachment trial in the Senate, regarding a federal judge, in 2010) appear in the Senate chamber and present the Articles to the Senators after a quorum call, and the Presiding Officer of the Senate ("Moscow Mitch") informs the House Managers that the Senate will duly inform them when the Senate is ready for the trial. "Moscow Mitch" takes the oath necessary for the proceeding and then does the same to each of the other 99 Senators.
- At the same time, notice is given by "Moscow Mitch" to Chief Justice of the United States John Roberts of the time and place fixed for the consideration of the Articles of Impeachment, with a request for him to attend.
- At the noticed time, the Chief Justice enters the Senate and "shall preside over the Senate during the consideration of said Articles and upon the trial of the person impeached." Thereafter, the Chief Justice "shall have the power to make and issue by himself, or by the Secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules."
- Through the Chief Justice, the Senate shall have the power to compel the attendance of witnesses, enforce orders, etc., and to hold in contempt anyone who disobeys those orders, to be enforced by the Sergeant at Arms of the Senate.
- The Chief Justice thereafter "shall direct all the forms of proceedings while the Senate is sitting for the purpose of trying an impeachment." This includes ruling "on all questions of evidence, including but not limited to, questions of relevancy, materiality and redundancy, and incidental questions, which rulings shall stand as the judgment of the Senate, except in which case a member of the Senate shall apply for a formal vote to be taken, in which case it will be submitted to the Senate without debate in accordance with the Standing Rules of the Senate."
What do the Senate Standing Rules call for? Could, for instance, a Republican Senator move to dismiss the entire impeachment trial before it even starts?
The Prior Senate Trials of Presidents Andrew Johnson and Bill Clinton and the Impeachment Proceedings of Richard Nixon
Andrew Johnson, 1868
President Abraham Lincoln chose Tennessee Democratic Senator Andrew Johnson as his running mate in the 1864 election because he supported the President in the Civil War, and he wanted to bring the country together after the war ended. But two months after their inauguration, Southerner John Wilkes Booth assassinated Lincoln and Johnson assumed the presidency, to the great distress of the Radical Republican majority in Congress. They wanted to punish the South for causing the Civil War, but President Johnson wanted to forgive them.
Consequently, the Radical Republicans tried to remove Johnson from office, and on their fourth attempt, after they passed the Tenure in Office Act to protect Secretary of War Seward, the House voted 11 articles of impeachment relating to Johnson's firing of Seward. The trial began in the Senate on March 5, 1868, and ended on May 16, 1868 with 35 Senators voting to convict and 19 voting to acquit, one less than was needed to remove him from office.
President Johnson did not appear before the Senate during the trial, but gave a number of press interviews during the trial. Johnson was represented at the Senate trial by Attorney General Henry Stanley (Billie Barr, are you listening? Can you prove that you are really a good lawyer by representing your buddy Donnie?). Three well known and highly respected lawyers from Boston, New York and Ohio also represented Johnson, along with a judge from Tennessee who was an old friend. Johnson served out his term, and ironically in 1874 he ran for the Senate, was elected, and served in the Senate for three months before dying on July 31, 1875.
Bill Clinton, 1998-1999
On December 19, 1998, Bill Clinton was impeached for perjury to a grand jury by a 228-206 vote, and for obstruction of justice by a 221-210 vote, all relating to his stupid thinking with his small head in his sexual relationship with Monica Lewinsky, and lying about it in the Paula Jones case. On October 8, 1998, the House commenced an impeachment inquiry, but conducted no investigation of its own, relying entirely on the Starr Report. After the Democrats picked up 5 seats in the 1998 midterm election, the House began its formal impeachment proceedings during the "lame duck" session of the 105th Congress.
House Committee hearings were perfunctory, but spirited debate ensued in the House, as Speaker Newt Gingrich, his announced successor Bob Livingston, and GOP Impeachment Manager Henry Hyde were all brought down ultimately by their own sexual misconduct. Other House Managers included current Judiciary Committee members Jim Sensenbrenner and Steve Chabot, and current Senate Judiciary Committee Chairman Lindsay Graham. Clinton had nine counsel representing him, including Cheryl Mills and Charles Ruff.
The Senate trial commenced on January 7, 1999, with Chief Justice William Rehnquist presiding. The first day involved swearing in parties and the formal presentation of charges, the second day involved passing the resolution on the rules and procedures for the impeachment trial. After a two day recess for the filing and ruing on legal briefs, the House Managers presented their case on January 14-16, 1999, followed by the defense presentation on January 19-21, 1999. From January 22-25, 150 written questions from the Senators to both sides were read out loud by the Chief Justice to the parties to whom the questions were directed. The Senators were not allowed to ask questions directly.
On January 25, Senator Robert Byrd moved for dismissal of both articles, which failed by a 56-44 party line vote. From February 1-3, videotaped depositions of Monica Lewinsky and two other witnesses were taken, and on February 4, the Senate voted 70-30 that excerpted videotape testimony, rather than live witnesses, was acceptable, and 30 excerpts were played on February 6. Closing arguments were held on February 8, with each side allotted three hours.
On February 12, 1999, the Senate voted down the perjury article by a 45-55 vote, and split 50-50 on the obstruction of justice article (67 votes needed to convict). Seven Republican and seven Democrat Senators who voted that day are still in the Senate.
After his acquittal, Clinton was cited for civil contempt in Arkansas, fined $90,000, and referred to the Arkansas Supreme Court for disciplinary action. On his last day in office, Clinton entered into a plea bargain with Special Counsel Robert Ray which resulted in the suspension of his law license for five years and a $25,000 fine. He also entered into a civil settlement with Paula Jones by payment of $850,000. (Trumputin, are you listening?)
Richard Nixon, 1973-1974
The Nixon "Watergate" Impeachment inquiry began on October 30, 1973 after the "Saturday Night Massacre" and was formally instituted on February 6, 1974, when the House granted the Judiciary Committee the authority to investigate the Watergate matter. May 9,1974 was the first day of the House Judiciary Committee's formal impeachment hearings.
On July 24, 1974, the Supreme Court unanimously ordered all the Nixon tapes to be turned over, and on July 30 three articles of impeachment, on obstruction of justice, abuse of power, and contempt of Congress, were adopted by the Judiciary Committee. On August 5, the "smoking gun" tape revealing Nixon's involvement in the Watergate coverup was released, and House leaders of both parties concluded that Nixon would be impeached and convicted by a substantial bipartisan vote. On August 9, Nixon resigned before the full House could vote on impeachment.
The Trump impeachment inquiry has reached the stage of the House Judiciary Committee now drafting articles of impeachment to vote on and forward to the full House for debate and vote. Given the strong Democrat majority, impeachment is almost certain to occur, and most likely before the Christmas recess. Therefore the trial of Trumputin will begin in early January, 2020.
The two past impeachment trials were over in about 2.5 months (Johnson) and almost 5 weeks (Clinton). 2020 is an election year, and the Iowa caucus begins the primary election process on February 3, with primaries and caucuses held each Tuesday in February and with Super Tuesday occurring on March 3. The last thing the Senators running for the Democratic nomination will want to do after February begins is to sit quietly in the Senate chamber and listen to the evidence being presented in Trumputin's impeachment trial.
Given the 53-47 Republican majority in the Senate, unless something dramatic happens, the 67 votes needed to convict will not be obtained, and it is almost certain that at some point "Moscow Mitch" or another Republican Senator will move to dismiss the proceeding. If the rules of the proceeding require only a majority to decide such a motion (as it did in the Clinton trial), it is likely that the impeachment proceedings will be over, even though it would create a huge uproar.
However, if "Moscow Mitch" tries to get the trial dismissed before it even begins, some Republican Senators (especially those 18 up for re-election) might object and vote against such dismissal. They might feel that if the case is dismissed before any evidence is presented and testimony is heard, the Republicans might look, in an election year, and in the court of public opinion, that they have a lot to hide and are not even able to put on a defense to the impeachment charges.
Another possibility (perhaps remote) is that evidence develops as a result of a Supreme Court order requiring Trumputin's tax returns and financial records to be turned over, or an order is issued requiring certain key witnesses to testify and incriminating documents to be produced, and a Nixonian turnaround occurs among the Republican Senators. Led by Senator Mitt Romney, and perhaps Senators Susan Collins (up for re-election and who voted against Clinton's conviction) and Lisa Murkowski, other Senators could be pressured to dump Trump and move on, as happened with Nixon. President Pence would be a weak candidate against the Democrat yet to be nominated, and the thought might cross Mitt Romney's mind that he could run again.
Alternatively, if the impeachment trial is dismissed prematurely as a result of a heavy handed Republican effort, and grossly incriminating evidence later emerges that Trumputin is clearly a traitor and/or gross abuser of power, a lightning impeachment and conviction could occur, or a deal could be made with Trumputin to resign and not go in the slammer.
2020 will be a fascinating year for political junkies. And politicians…