The US flag flies above the Senate Chamber at the Capitol in Washington. Photo / T.J. Kirkpatrick, The New York Times
The rules adopted by the Senate lay out a timeline for a trial that could be over in two weeks — or stretch much longer.
With the adoption early Wednesday morning (local time) of the ground rules for President Donald Trump's impeachment trial, the Senate prepared to plunge forward over the next week with oral arguments, questions from senators and consequential votes on whether to admit new evidence.
The trial could be over in two weeks, or it could stretch on much longer, depending on how much time is used by each side and how much additional evidence — if any — senators vote to review.
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After a bruising 12-hour debate that underscored the deep acrimony between Republicans and Democrats at the outset of the trial, Republicans pushed through a set of rules that would postpone until next week at the earliest a final decision on whether to call witnesses or subpoena documents for the trial.
That brought into focus what will unfold in the Senate over the coming days. Here is what to expect:
The trial will reconvene at 1pm Wednesday, but oral arguments might not begin immediately. Under the rules, the managers and White House lawyers are allowed to make any motion they want, except for seeking documents and witnesses, a matter that will be debated later in the proceedings.
What motions could they make? Trump has said publicly that he wants to end the trial quickly, so his lawyers could move for dismissal. That is seen as unlikely because Republican senators — including staunch allies of the president's — have said there is little support among their colleagues to dismiss the case before the arguments have been heard.
After any motions are considered, the seven House members serving as prosecutors in the impeachment trial have 24 hours to lay out their case, most likely starting at some point Wednesday afternoon. Under the rules adopted Tuesday, they can use their time over three days.
The managers, led by Rep. Adam B. Schiff of California, chairman of the House Intelligence Committee, have so far not been shy about taking every minute they are owed. During Tuesday's debate over the rules, Schiff and the other managers filled their time with lengthy, detailed arguments that included the use of PowerPoint presentations and video clips of Trump and the witnesses who appeared in the House inquiry.
If that trend continues, the House managers could spend the balance of the week making their case for Trump's removal from office.
One consideration for the managers? The patience of senators, some of whom already looked a bit bored Tuesday — one even appeared to doze off — as they sat in silence through several hours of Schiff and his colleagues delivering dense, detailed arguments. The House leadership could decide, as the impeachment managers did during President Bill Clinton's 1999 impeachment trial, that taking every minute of the 24 hours afforded to them will not help their case.
If the House managers take all of their time, the White House lawyers — led by Pat A. Cipollone, the White House counsel, and Jay Sekulow, the president's personal lawyer — will have the chance to deliver their oral arguments defending the president starting Saturday. Senate rules that date back more than three decades hold that during impeachment, senators must meet six days a week, taking only Sunday off.
If the debate over rules was any guide, the president's lawyers may take far less than their allotted 24 hours. But if they took it all, they would complete their presentation Tuesday.
Like the House managers, the White House lawyers will probably think about how long they want to keep senators in their seats. But they also have another audience: Trump, who has been itching to see a vigorous defense of him played out on television screens. That might encourage Cipollone and Sekulow to take a longer time outlining the case for his acquittal.
Under a clause inserted by Senator Mitch McConnell, R-Ky., the majority leader, the rules allow Trump's legal team to move after opening arguments to object to pieces of evidence the House impeachment investigators collected in their inquiry. If the president's legal team did so, it is not clear whether Chief Justice John Roberts would rule on those objections or if the Senate would debate and vote on them, but the process could take some time.
After each side has presented its case, the trial rules give senators up to 16 hours to ask questions. But unlike during a normal Senate session, they are not allowed to speak. They must submit their questions in writing to Roberts, who is presiding over the trial. Under the rules of the Senate, the chief justice will decide which questions to ask, directing them to the managers or to the White House legal team.
That does not mean there will not be any grandstanding. When the chief justice reads a question aloud, he will indicate which senator submitted it. (Senator Susan Collins, R-Maine, frequently boasts that during Clinton's impeachment trial, she and Senator Russ Feingold, D-Wis., were the only two senators to submit a bipartisan question.)
It is not clear whether the senators will use all 16 hours. If they do, it would probably occur by the middle of next week, though when they start would depend on how long the House managers and White House lawyers have chosen to talk.
Once senators have exhausted all of their time for questions, they will take up whether the Senate should subpoena witnesses and seek additional documents from the administration that could be relevant to the impeachment inquiry. Depending on what has occurred up to that point, the debate could begin January 31.
Under the rules, there would first be a four-hour debate — two hours for each side — on whether motions about specific witnesses and documents are in order, followed by a vote. If Republicans succeed in defeating that motion, they would move quickly to final votes on the two articles of impeachment.
If Democrats succeed in persuading at least four Republican senators to back their demands for more evidence, they would most likely make motions to subpoena witnesses they have insisted upon for weeks: John R. Bolton, the former national security adviser; Mick Mulvaney, the acting White House chief of staff; Robert B. Blair, a top aide to Mulvaney; and Michael Duffey, a White House budget official. The Senate would probably debate and vote on each one.
Even though all of the chamber's Republican senators voted Tuesday to reject seeking testimony from witnesses, a few — including Senators Mitt Romney of Utah and Collins — have indicated they would be open to calling witnesses toward the end of the trial instead of at the beginning.
Trump's lawyers would also have an opportunity to request witnesses. Some Republicans have suggested that the White House lawyers should call witnesses like Hunter Biden, son of former Vice President Joe Biden. Democrats have repeatedly said they do not think witnesses like Biden, who served on the board of a Ukrainian energy company, is relevant to the question of Trump's impeachment.
If the senators agreed to call witnesses, the trial schedule would get much fuzzier, potentially extending well into February. The Senate would issue subpoenas in the name of the chief justice, seeking their testimony. Those who agreed to testify willingly would first be deposed in private sessions with House managers and White House lawyers and their staff. It is unclear how long it would take to conduct those sessions.
Under the rules, witnesses who are deposed in private do not automatically testify in person or by video in the Senate chamber. Senators must take a final vote after the depositions are completed to decide whether to allow the testimony. It is difficult to know when such votes might take place.
After all of the witnesses testify, the rules call for senators to move to a vote on the articles of impeachment — in Trump's case, abuse of power and obstruction of Congress. The resolution calls for no debate, only two final votes, bringing to an end the third Senate trial of a president in the nation's history.
There is little doubt about the outcome. The Constitution requires that two-thirds of all senators, 67 of 100, must find Trump guilty in order to convict him on an article of impeachment and remove him from office. Both sides agree that is almost certain not to happen.
But when the final votes take place is very much up in the air. Depending on the choices made by the managers, the White House lawyers and the senators, the votes could happen days before the president's State of the Union address February 4 — or well after.
Written by: Michael D. Shear
Photographs by: T.J. Kirkpatrick, Erin Schaff and Tom Brenner
© 2020 THE NEW YORK TIMES
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