WASHINGTON (CN) — Senate Democrats on Capitol Hill last month filed into a room where Minority Leader Chuck Schumer rolled tape from the Clinton impeachment trial, like a coach prepping his players for the big game.
The rundown ahead of the House vote to impeach President Donald Trump gave the Democrats a look at what to expect Thursday after Chief Justice John Roberts swears in senators to serve as jurors in the third Senate impeachment trial in U.S. history.
The rules of play in some ways match what senior members of Congress saw unfold back in 1999 in the impeachment trial of Bill Clinton. Closed-door proceedings with Roberts presiding as judge, opening and closing statements, all leading up to a final vote on whether to remove Trump from office.
Senators turned jurors are prohibited over the coming weeks from using their phones in the chamber. Reading material is likewise restricted to only documents in the case arising from the House investigation into a campaign led by Trump’s personal attorney Rudy Giuliani to pressure Ukrainian officials to gin up a political investigation into Joe Biden and his son Hunter.
When the time comes, senators will swap out the “yea” and “nay” votes common in Congress for “guilty” and “not guilty” in a roll call on the Senate floor.
But the trial set to get underway Thursday in many ways diverges dramatically from Clinton’s case. Twenty years ago, Senate Majority Leader Trent Lott and Minority Leader Tom Daschle locked themselves away in the old Senate chambers to hammer out the rules for Clinton’s trial. The 1999 impeachment showdown turned out to be a five-week trial. So far the prediction for Trump’s trial is that it will run two weeks minimum. Senate Majority Leader Mitch McConnell and Schumer never came close to closed-door negotiations, instead dueling for weeks though denunciations and jeremiads from the Senate floor.
House Speaker Nancy Pelosi transmitting the impeachment articles means Schumer’s demand for Republicans to call witnesses blocked by the White House will now come down to a Senate vote during the trial. Democrats are eyeing four GOP members to reach the decisive 51 votes needed to call witnesses like former National Security Adviser John Bolton, who has publicly stated he will testify if subpoenaed.
Back in 1868, the Senate heard from 40 live witnesses before voting on whether to remove President Andrew Johnson from office. Over 100 years later, the Senate reviewed just three videotaped depositions in the Clinton trial, including from Monica Lewinsky, with whom the president denied having extramarital sex.
Congress fell short of the two-thirds majority, or 67 votes, needed to convict and remove from office both Johnson and Clinton.
If the Senate votes in lockstep party unity this time around, the Republican majority will find the president not guilty and Trump will follow his impeachment forerunners, keeping hold of the White House.
More Like Guidelines
House Intelligence Committee Chairman Adam Schiff will lead the team of seven House managers, only one of whom is not a lawyer, prosecuting the House Democrats’ case against Trump.
House Judiciary Committee Chairman Jerry Nadler joins Schiff, a former federal prosecutor, along with Jason Crow, a private practice litigator before winning his seat in 2018; Val Demings, the first woman to serve as chief of the Orlando Police Department; Sylvia Garcia, the first woman to be elected to the Harris County Commissioner’s Court; Hakeem Jeffries, who clerked for a respected Southern District of New York judge: and Zoe Lofgren, a House staffer during the Nixon impeachment and a congresswoman during the Clinton impeachment.
In the last week, Democrats released dramatic new evidence from Lev Parnas, a Ukrainian-born Giuliani associate indicted on conspiracy charges in October.
The trove of documents Democrats plan to use at trial corroborates testimony from the House investigation into the Ukraine scandal, tagging new top administration officials as on the inside of the scheme, including Vice President Mike Pence and Attorney General Bill Barr.
It is yet unclear how Schiff and his high-profile team of prosecutors plan to introduce the new evidence to prove the two impeachment articles — equivalent to an indictment — that charge Trump with abuse of power and obstruction of Congress.
The abuse of power charge against Clinton never made it out of the House. The president in 1999 was tried for obstruction of justice and perjury.
The televised reversal by Clinton that he “did not have sexual relations with that woman, Miss Lewinsky,” to nine months later somberly declaring “I have sinned,” left little question that the president lied to Congress.
Frank Bowman, a law professor at the University of Missouri and author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” said Clinton’s trial wasn’t really a trial at all.
Bowman described it instead as a forum for constitutional arguments.
“There wasn’t really a point in having an actual hearing,” he said. “The Republicans didn’t really want one anyway because it would have looked kind of icky, for example, if they called Ms. Lewinsky. It would have looked like they were picking on her.”
Article I of the U.S. Constitution lays down that Congress “shall have the sole power of impeachment.” Further instructions fall in Article II, outlining that “all civil officers of the United States,” which includes judges, can be impeached.
But the Senate has a second roadmap to rely on in the weeks ahead: The Procedure and Guidelines for Impeachment Trials in the United States Senate. Congress last voted in 1986 to update the guidelines, a 109-page Senate resolution jam-packed with examples from impeachments past.
Some hard-and-fast rules surface in the 1986 guidelines. Senators cannot debate. Any question they wish to put to a witness must be submitted in writing to Chief Justice Roberts, presiding as judge.
Time constraints in past impeachment trials aimed to keep senators who may be tempted to grandstand in check, an option for the Senate starting next week.
“All preliminary or interlocutory questions, and all motions, shall be argued for not exceeding one hour, unless the Senate otherwise orders, on each side,” the rules state.
Just as in a courtroom, witnesses are questioned first by the party that summoned them then cross-examined by the other side, and can be compelled to produce documents. Testimony from witnesses must link to only one article of impeachment, with two to be taken up by the Senate next week after opening statements Tuesday.
Bowman predicted last month that live testimony would be limited, absent Democrats unearthing a new witness not called in the House investigation hearings. Now cooperating with Schiff’s Intelligence Committee, Parnas may serve as such a witness.
A minutiae of parliamentary how-to’s in the 1986 guidelines far outnumber locked in rules, all of which the Senate will have the option to adopt by a vote at trial.
Trump, as the defendant, may appear before the Senate but is not required. The White House has held out announcing Trump’s legal team, sure to include White House counsel Pat Cipollone and Jay Sekulow, a private attorney who represented Trump in the investigation into Russian interference in the 2016 election.
Prominent roles on the president’s defense team may also go to fiery House Republicans like the top GOP member on the Judiciary Committee, Doug Collins, and on the Oversight Committee, Jim Jordan.
From Marble Palace to Senate Chamber
The trial will also give the American people a rare look at Roberts as he steps from the secret chambers of the Marble Palace into the spotlight.
The chief justice clerked for his immediate predecessor, Chief Justice William Rehnquist, who sat on the dais above the senators’ wooden desks while presiding over the Clinton impeachment.
But Bowman said: “The chief justice in terms of actual decisional authority is a potted plant.”
He predicted Roberts will at times defer to the parliamentarian on the congressional rules for an impeachment trial with which he is entirely unversed.
“He’s not even enforcing rules with which he is familiar. They’re not judicial rules,” Bowman said. “There isn’t a set of federal rules of evidence that the judge is applying. There is not a set of federal rules of civil or criminal procedure which the judge is just applying. There is not an overall arching body of statutory law which the judge is just applying. There is none of that.”
Absent legal authority, Bowman said the George W. Bush-appointed justice may carry some moral authority.
“He is after all the chief justice of the United States. And what’s more, he’s a Republican chief justice,” Bowman said. “The senators for their part have some desire not to tick him off or certainly not to humiliate him or embarrass him.”
Mechanics of the Trial
There’s no witness box on the Senate floor. But the 1986 rules make clear that witnesses are expected to stand while testifying. From where is not marked out, yet the rules offer long-winded examples from past trials, such as the impeachment of Secretary of War William Belknap in 1876.
“The chair will state to the senator that he designated a little higher place for the witnesses, but the managers and counsel thought it would be preferable to have the witness in front of the desk, and the chair submitted that to the Senate, and, as there was no objection, the witnesses were placed there,” according to the congressional record from the judicial impeachment.
Opening arguments must be delivered by just one House manager and one of the president’s attorneys, while closings can be a two-person show, unless otherwise decided upon by the Senate.
As lead impeachment manager, Schiff — endlessly mocked by President Trump as “Shifty-Schiff,” a nickname criticized for its anti-Semitic overtones — will draw on experience as a prosecutor in the most recent impeachment trial of U.S. District Judge G. Thomas Porteous. In December 2010, the Senate found the Louisiana judge guilty on all four impeachment articles and voted 94-2 to forever disqualify Porteous from “holding an office of honor, trust or profit,” a move taken by senators just eight times in U.S. history at the close of judicial impeachments.
David Seide served as a federal prosecutor alongside Schiff in the U.S. Attorney’s Office in Los Angeles. A former attorney with the State Department Inspector General’s Office, he said in an interview with Courthouse News in November that the California Democrat is well-equipped for impeachment after years of prosecuting in the well of a courtroom.
“As part of the experience of being in court a lot you develop a sense of intellectual nimbleness so you can deal in real time,” Seide said.
The 1986 rules allow the Senate to take up a special order to limit closing arguments to four hours, as in the impeachment trials of two federal judges in the 1930s.
In other trials House managers and the president’s attorneys were given free rein to submit arguments for the record or deliver them orally from the Senate floor.
The Senate opted for that open format in Johnson’s trial and the closing argument in 1868 ran from April 22 to May 6.
But now in an election year – with four senators pulled from the campaign trail to sit in judgment for Trump – Villanova University professor John Johannes said Democrats will not want to drag out the trial.
“The longer they push this off,” he added, “the more and more it looks like a pure political coup as opposed to a constitutional issue.”
The document dump of handwritten notes and text messages from Parnas proved this week there is more to the Ukraine scandal than the House investigation unearthed. Documents tell the whole story, Democrats have said for months, as the White House blocked the release of records as well as witness testimony.
Bowman said that without testimony from key witnesses like Bolton and Secretary of State Mike Pompeo, the record will be incomplete.
“It will be at least possible for the Republicans to argue that there are gaps in proof…to which part of the response is, ‘Yeah if there are any gaps in proof it’s because the president is refusing to permit his people to testify. Therefore we are entitled to impeach him on that ground alone,’” Bowman, the University of Missouri professor, argued.
Republicans have demanded testimony from Schiff and the Bidens, specifically from Hunter Biden on how he came to sit on the board of the Ukrainian gas company, Burisma Holdings.
Bowman said the issue may set off “saber rattling” in the Senate but in the end he does not expect the vice president or his son will be called as witnesses.
The impeachment expert also said Republicans would falter attempting to cross-examine witnesses on Ukraine, and not Russia, interfering in the 2016 presidential election, as they did in the House hearings.
“Proving it gets your throat ripped out,” Bowman said.
The hyper partisan politics in today’s Washington, he added, means “a lot of the factors that made it possible to essentially drive Nixon from office as a result of misconduct…just don’t exist anymore.”
Both Bowman and Johannes drew comparisons to Democrats jockeying today to present the American people with a clear understanding of how Trump violated his oath of office to the effort to push Johnson from office in 1868.
Seeking to end Southern Reconstruction after the Civil War, Johnson was widely unpopular. Congress laid a trap for the president, said Johannes, when it passed the Tenure of Office Act, restricting the president’s ability to dismiss certain officeholders without Senate approval and making it a high crime and misdemeanor to violate the new law.
When Johnson fired his secretary of war, the House voted to impeach him three days later, followed by a three-month trial that failed by one vote to reach the two-thirds majority to trigger removal from office.
“That was purely a crass political thing,” Johannes said. “Now the Republicans say that that is what’s going on right now. But it clearly goes beyond just raw politics.”
Like a traditional jury, as the trial nears to an end, the Senate will disappear behind closed doors to deliberate.
A “sunshine” proposal to open the secret debate to remove Clinton from office for the public to view failed with a 59-41 vote — falling short of the two-thirds majority required to change the impeachment rules — but could be raised again in Trump’s trial.
Republicans came out with roaring tempers and slinging mud in the House impeachment hearings. But as the Senate picks up the polarizing debate, Johannes said lawmakers are sure to exhibit more decorum and proper procedure than the neighboring chamber.
“That’s inherent in the institution of the Senate,” he said. “It’s almost always the case.”
Senator Lindsey Graham, R-S.C., was one of 13 House managers in the Clinton trial. Alongside him were two current members of the House Judiciary Committee, Republicans Steve Chabot and James Sensenbrenner, who both voted against impeaching Trump.
Trump’s loudest GOP defender, Graham argued back in the Clinton impeachment that the constitutional remedy is about “cleansing” and “restoring honor and integrity to the office.”
Graham said, now famously, back in 1999: “You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role.”
This time around, however, the top Republican said the House probe was a “bunch of garbage,” and that he knows exactly where he is going to land when the time comes to vote.
“There was no quid pro quo, no bribery, they got the money, they got the meeting, they didn’t investigate the Bidens,” Graham said in an interview last month. “The way they’ve conducted the trial is a danger to the presidency itself.”
But Democrats argue the stakes are high for Americans on both sides of the aisle. Judiciary Chairman Nadler said during the House investigation that the integrity of the 2020 presidential election is at stake.
The warning echoed words from North Carolina Democrat Samuel Ervin, chairman of the Senate committee that investigated Watergate back in 1973.
Before Nixon stepped down to avoid a House vote on impeachment, Ervin said if the claim that the president coordinated the Watergate break-in was true, the black-masked burglars effectively broke into the home of every U.S. citizen.
“And if these allegations prove to be true,” Ervin said, “what they were seeking to steal was not the jewels, money or other property of American citizens, but something much more valuable, their most precious heritage – the right to vote in a free election.”
Jack Rodgers contributed to this report.