9 Questions About The Impeachment Trial Of President Trump

The impeachment trial of President Trump begins in the Senate today. It will likely be a busy day as the Senate decides what the rules will be. What happens after that is less certain.

Here are 9 Questions about the impeachment process and the effects it will have.

Are The Senators Required To Attend?

According to the guidelines Senate Majority Leader McConnell released “Senators should plan to be in attendance at all times during the proceedings” but they may not be constitutionally nor legally required to attend.

What If Senators Choose Not To Attend?

Senate rules state that Senators who have not attended and participated in the Trial cannot vote whether to convict or acquit. So far, there has not been a minimum threshold established as to how much a Senator has to attend and participate in order to vote. Is one day a week enough?  Would they have to be there 6 days a week? These questions may need to be answered.

Part of the calculation for the Senators running for President may be whether it would be more beneficial for them to be on the trail or in the Senate Chamber. If Senators Bennet, Klobuchar, Sanders, and Warren choose to be on the campaign trail, would voters hold that against them as an abandonment of their responsibilities as Senators? If they choose to attend the Trial, how much of an advantage might that give candidates who are not sitting Senators? Surely former Vice President Biden, Mayor Pete Buttigieg, Mayor Bloomberg, and Tom Steyer believe having the campaign trail to themselves would be advantageous.

Some Republicans have called for the sitting Senators running for President to recuse themselves. It isn’t likely they will recuse themselves. However, if they recuse themselves so they can be on the campaign trail, will that be viewed differently than if they continue campaigning without recusing themselves?

What Would Be The Consequences In The Senate For Not Attending?

Senate rules allow for the Senate Majority Leader to enlist the Senate’s Sergeant-At-Arms to arrest Senators and force their attendance. This is designed to ensure the Senate has a quorum in order to be able to conduct business. Could Senator McConnell use it to force as many Senators as possible to attend the Impeachment Trial?  It’s unlikely, but theoretically possible.

Benjamin Wofford’s Impeachment Loophole

Why would Senator McConnell want to ensure as many Senators are in attendance as possible? An article from the Washingtonian by Benjamin Wofford discusses an “Impeachment Loophole”. This loophole begins with a discussion of the fact that Impeachment requires a two-thirds majority of Senators present rather than all Senators. Mr Wofford then cites former Senator Jeff Flake’s claim that “at least 30 Republican Senators would cast their vote for Impeachment against Trump” if it were held on a secret ballot. Then, Mr Wofford suggests if all the Republicans who would vote for conviction and removal simply chose not to attend, then the Democrats would be the majority of those in attendance and would thus be able to convict and remove without the votes of Republicans.

If such a plot were to be put into motion, it would behoove Senator McConnell, as a staunch supporter of the President, to ensure as many Senators were in attendance as possible. A complication Senator McConnell would likely face though is that the Democrats in attendance would not vote to authorize the Sergeant-At-Arms to compel the attendance of the missing Senators.

Then again, if Senators Bennet, Klobuchar, Sanders, and Warren decided to campaign instead of attend the Impeachment Trial, Senator McConnell could get the Republicans to compel their attendance. Such an act though would be considered by many a blatant interference in the campaign and election process and might backfire against President Trump, Senator McConnell, and Republicans in general.

Will The Senate Call Witnesses?

This remains to be seen. Generally speaking, the Democrats want to have witnesses, but the Republicans do not. If there are witnesses, some Republicans want to focus more on Hunter Biden’s connections to Ukraine and other instances of alleged election interference benefiting the Democrats.

Most Republicans also seem inclined to want the Trial to be over as soon as possible, and calling witnesses would prolong the Trial. Some Republicans seem to be softening to the idea of witnesses however.  

How Long Will The Trial Take?

The timetable released by Senator McConnell and comments made by Republican Senators indicate the GOP wants to get the Impeachment Trial finished as soon as possible. President Trump is currently scheduled to give this year’s State of the Union Address on February 4, and the goal for many seems to be to have the Trial over with by then. However, if the Senate does decide to allow witnesses it will extend the Trial.

What If The Senate Decides To Gather Evidence And Hear From Witnesses?

The rules of the Senate regarding impeachment include Rule XI which provides for the appointment of a smaller group of Senators as a “Trial Committee”. Members of a Trial Committee would be responsible for gathering evidence, interviewing witnesses, and otherwise conducting their own investigation into the charges brought by the House.

The Senate will decide whether or not to hear from witnesses after each side presents their 24 hours of opening statements and the Senators have 16 hours of questioning.

What Role Will Chief Justice John Roberts Play In The Trial?

As dictated by the Constitution, Chief Justice John Roberts will preside over the Trial. When Senators have questions, they will relay the questions in written form via the Senate pages to the Chief Justice. Chief Justice Roberts will then ask the questions. If the need arises for the Chief Justice to issue rulings in matters, he may do so, but it is possible for the Senate to overrule him.

According to ScotusBlog, in an entry by Frank Bowman:

“The rules nominally give the presiding officer considerable power, including the power to issue “orders, mandates, writs, and precepts” (Rule V), to “direct all the forms of proceedings while the Senate is sitting for the purpose of trying and impeachment” (Rule VII), and to “rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence” (Rule VII). But in every case, this apparent authority is subject to the critical limitation that the presiding officer may only act in accordance with the will of the Senate.”

Practically, the Chief Justice has limited power. When an issue is raised, the Presiding Officer doesn’t even have to rule. Instead, he can simply refer it to the body of the Senate to make the decision. While Chief Justice Roberts likely will try to be fair, impartial, and reserved, he will likely be little more than a ceremonial administrator. It is unlikely he will play a significant role that would influence the outcome of the Trial.  

Will The Trial Get Ugly?

With the state of American politics today, partisanship will be a given. The question will be how rabid that partisanship will be. If Senate Republicans act as a monolithic body it is likely the proceedings will be over sooner rather than later, and the Democrats will strongly object to the rush.

If the Republicans are not entirely unified and the Senate decides to allow additional witnesses and evidence, this could open a Pandora’s Box. Accusations against the Bidens could come forth. More potentially damaging information against the President could come out. Who knows what kind of ugly accusations could come out?

Although unlikely, it is possible the Republicans could engage in election meddling of a sort and decide to draw out the Trial to keep Senators Bennet, Klobuchar, Sanders, and Warren off the campaign trail. if Republicans did this, it could potentially have an even bigger impact if the trial were to go on after the Democratic Convention and one of these Senators were to receive the nomination. This would be an extremely partisan act, with a huge risk, but potentially a huge reward. If Senator Sanders or Warren received the nomination and polls showed President Trump might lose the election, would the Republicans risk such a gamble? Hopefully we won’t have the opportunity to find out.

What Else Should We Know?

• Several online betting and prediction sites, including PredictIt are offering odds on the outcome of the Senate Trial.
• The deadlines for ballot access in early primary states are starting to pass, so if President Trump were to be removed from office, getting new Republican primary candidates on the ballot could be difficult.
• Since the Constitution requires a two thirds majority to convict and remove from office, it is extremely unlikely enough Republicans will join with the Democrats to actually remove the President from office.
• There has been some discussion of the House Democrats filing additional Articles of Impeachment
  
  

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Garrett Leeds is the founder of the Life, Liberty, and Pursuit of Happiness Project

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