The Senate Impeachment Trial: Evidence and Procedure

impeachment ticket

Benjamin Wittes, who is very smart, writes today on What Impeachment Is Revealing About the Republican Party: Trump’s Senate trial will force voters to evaluate nihilism as the governing philosophy of a political movement.

He addresses several topics of interest, but I want to draw attention to his observations on process and rules of evidence in the Senate. Mr. Wittes writes,

Things get even murkier when the articles [of impeachment]—whatever they end up including—land in the Senate chamber. The Senate’s rules for impeachment trials are an odd combination of the highly specific and the maddeningly vague. On the one hand, they specify the precise time of day the impeachment trial shall go into session the day after the House members appointed to manage the trial march into the Senate chamber and present the articles the House has passed (1:00 pm, in case you were wondering—unless it’s a Sunday). On the other hand, they don’t specify rules of evidence, leaving almost everything of substance initially to the judgment of Chief Justice John Roberts and ultimately to the judgment of 51 members of the body, the vote required to overrule Roberts on a wide variety of motions.

In other words, the course of the Senate trial will ultimately depend on two variables that are, at this stage, mysterious. The first is how Roberts understands his own role as the trial’s presiding officer. The rules permit the chief justice to be—if he chooses—quite activist in ruling on evidentiary motions and the like, subject to being overturned by a vote of the Senate itself. The rules also permit him to be—if he chooses—quite passive; he’s entitled simply to submit such matters to the vote of the body itself in the first instance. So one key question is what role Roberts himself thinks he should play.

The other question is whether Republicans will be as disciplined in the Senate as they have been in the House in opposing Democratic actions, or whether a small number of defectors will give Democrats the 51 votes they will need to prevail on evidentiary disputes—either if Roberts’s rulings are challenged or if he submits questions to the judgment of the Senate. In other words, if the initial question is the personality and attitudes of the chief justice, the ultimate question is which side has the votes to carry motions.

A lot turns on these issues: Depending on the answers, one can imagine a Senate trial in which Mulvaney and Bolton would have to testify and executive-privilege claims would be unsustainable. One can also imagine a trial that would be short and, for Democrats, deeply frustrating.