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How the Senate could proceed with impeachment

How the Senate could proceed with impeachment
© Greg Nash

If Democrats move forward with impeaching President TrumpDonald TrumpLil Wayne gets 11th hour Trump pardon Trump grants clemency to more than 100 people, including Bannon Trump expected to pardon Bannon: reports MORE, a verdict will come down to math and a partisan Senate.

While Democrats have the numbers to formally impeach Trump, they do not even have a majority in the Senate.

That, coupled with the hyperpartisan atmosphere on Capitol Hill, makes it all but certain that any impeachment charges would fall well short of the two-thirds vote necessary to convict Trump and remove him from office, no matter how strong the evidence.

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There is no provision in the Constitution, which mentions the impeachment process four times, that formally requires the Senate, led by Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump has talked to associates about forming new political party: report McConnell, Schumer fail to cut power-sharing deal amid filibuster snag McConnell keeps GOP guessing on Trump impeachment MORE (R-Ky.), to hold a trial.

The first time the Constitution mentions the process, it is to give the House sole authority to impeach a federal officeholder. The second gives the Senate the power to hold a trial. The third prevents a president from issuing a pardon to shield someone from impeachment. And the fourth provides for the removal of “all civil Officers of the United States” for “Treason, Bribery, or other high Crimes and Misdemeanors.”

Several Senate Republicans told The Hill earlier this year they would move to end a potential trial if House Democrats had impeached Trump in the wake of former special counsel Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE’s report.

“I think it would be disposed of very quickly,” Sen. Lindsey GrahamLindsey Olin GrahamSenate presses Biden's pick for secretary of State on Iran, China, Russia and Yemen GOP senator questions constitutionality of an impeachment trial after Trump leaves office Graham pushes Schumer for vote to dismiss impeachment article MORE (R-S.C.), who served as a manager arguing to convict President Clinton when Graham was in the House, told The Hill in May. “If it’s based on the Mueller report, or anything like that, it would be quickly disposed of.”

Graham is skeptical, too, about allegations that Trump demanded a Ukrainian investigation into former Vice President Joe BidenJoe BidenTrump grants clemency to more than 100 people, including Bannon Scalise bringing Donna Brazile as guest to Biden inauguration Sidney Powell withdraws 'kraken' lawsuit in Georgia MORE and his son Hunter’s business practices, based on a transcript of a phone call between Trump and Ukraine’s president released Wednesday.

“Wow. Impeachment over this?” Graham asked on Twitter. “What a nothing (non-quid pro quo) burger. Democrats have lost their minds when it comes to President @realDonaldTrump.”

Even with Republicans in control, Senate rules experts say it is all but certain that a trial would take place if the House formally impeaches Trump.

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In the 19 previous cases in which a federal officeholder was impeached, the Senate has never declined to hold a trial — though in one case, in 1873, a federal judge resigned before a trial could take place, and in another case, from 1926, a judge resigned while the trial was taking place.

Just what an eventual trial would look like is up for debate, and negotiation. The arcane rules governing a Senate impeachment trial have been revised several times since they were first written down in 1868, during the impeachment trial of President Andrew Johnson.

The Senate’s role in an impeachment trial begins when the House formally notifies the upper chamber that it has appointed managers who would lay out the case for removal. The secretary of the Senate, in consultation with the Senate’s presiding officer, then schedules a trial.

The rules do not set out a timeline for when the trial must begin, and veterans of previous impeachment efforts say there is some wiggle room in the schedule. In the case of an impeached president, the Supreme Court’s chief justice presides over the trial, and those experts agreed that the Senate and chief justice would be allowed to coordinate their schedules.

It takes time, too, to prepare the physical space in which the trial would be held. Veterans of Clinton’s impeachment trial recall having to clear out the well of the Senate. They also brought in special tables for the House Republican impeachment managers to lay out their evidence and for the lawyers who defended Clinton.

The Clinton precedent illustrates the flexibility within the Senate rules. Those rules were last revised in 1986 by Sens. Robert Byrd (D-W.Va.), the self-styled master of the Senate, and Bob Dole (R-Kan.), a dozen years before Clinton went to trial.

Instead of revising the rules once again, Democrats and Republicans struck an agreement on how the trial would be conducted. Both the prosecution and the defense were given four days to present their cases. The impeachment managers who laid out the evidence against Clinton wanted a full trial and to interview witnesses of the floor. The Senate instead allowed them to show taped depositions of several witnesses.

The Clinton case also illustrates what may be the GOP’s most potent weapon against any charges Democrats level at Trump: a motion to dismiss the charges.

During Clinton’s impeachment trial, Byrd moved to dismiss the charges after Republicans had laid out their evidence.

The motion failed on a party-line vote in a Republican-controlled chamber, but it’s possible it would succeed if offered by a Republican in the present-day Senate, where the GOP holds a 53-47 majority.

During the trial itself, the Senate is not beholden to the same rules of procedure as the courts.

Senate rules governing impeachment give much of the power to decide evidentiary and procedural questions to the presiding officer — in the case of a presidential impeachment trial, to Chief Justice John Roberts.

Without a motion to dismiss the charges, once the managers finish laying out their case, the Senate would break for the day, according to the revised version of the rules. At 1 p.m. the following day, senators would meet to consider the individual articles of impeachment. 

The Senate votes only on the articles of impeachment themselves, not on whether to remove the accused from office. Any articles of impeachment approved by two-thirds of the Senate would serve to convict the accused.

Only two presidents have gone through an impeachment trial. Both of those presidents — Johnson and Clinton — were acquitted.

A third, President Nixon, resigned rather than risk impeachment and a Senate trial.