Confused about Impeachment and subsequent Trial

[Huin]

The latest news I read (or glanced at headlines only) concerned the discussion and vote on the two Articles of Impeachment to impeach our President. I learned that Republicans still have their heads in the sand with a consequential deprivation of oxygen and resultant incapacity to grasp reality. They were reported by the "Hill" to have opened today's session in the House with a motion for adjournment, apparently in an attempt to delay the discussion and vote on the Articles of Impeachment to come before the House.

I seem to recall reading that Sen. McConnell had also denied Sen. Chuck Schumer's request to present witnesses. I have not read how Mr. McConnell proposes to run the impeachment trial in the U.S. Senate, but here are this writer's five pennies worth on impeachment. Remember, these are hypothetical, philosophical observations, just something to think about, any criticism, corrections or observations on the subject will be appreciated.

The last two paragraphs of Article I, Section 3 of our United States Constitution deals with constitutional requirements for the trial of an impeached official to determine whether he or she should be removed from office. 1. The Senate shall have the sole Power to try all impeachments. 2. When sitting for that Purpose, they shall be on Oath or Affirmation. 3. When the President of the United States is tried, the Chief Justice shall preside; and 4. no Person shall be convicted without the Concurrence of two thirds of the Members present. Those are the requirements for the trial of impeachment.

The last paragraph of that Section 3 establishes Judgment in Cases of Impeachment shall not extend further than to removal from Office, and to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party shall nevertheless be liable to proceedings according to the law (paraphrased). So far the premises for my Post.

The Problem: Why is Mitch McConnell making rules for the trial (in his case "Non-Trial&quot when our Constitution clearly sets forth that when a president is tried according to the impeachment process, it is not a criminal trial, but it is nevertheless a legal trial of highest importance to require the Chief Justice to preside over the trial. It was the Chief Justice who administered the Oath of Office to the President, without which he could not have become President, even had he won the election by an overwhelming majority: let us never forget that. That's how ethics were a little over two hundred years ago. The impeachment in the House is like an indictment. The actual trial is a trial on the facts to be presented to the Senate.

Significantly, the Constitution requires that when the Senate sits for the purpose of an impeachment trial, they shall be on Oath or Affirmation. Clearly all Senators have already taken an oath or made an affirmation to support the Constitution. Therefore, this is a different oath. I don't know what oath the Chief Justice requires, but should they not swear an oath that they will look at the facts to be presented, and regardless of party affiliation, decide truthfully whether or not the president has committed a high crime or misdemeanor to require removal from Office. These Senators become the decision makers on the facts presented (like a jury) while the Chief Justice makes decisions as to the law and proper trial procedures.

Would it not be proper for the Chief Justice to have polled each and every Member of the Senate whether they can render such an unbiased decision on the facts and exclude those who under oath say that they cannot do that? There are at least two Senators who have already publicly proclaimed that they cannot convict the President. Should they not be excluded from voting?

Don't say "Nonsense" to those questions. Our Constitution demands "no Person shall be convicted without the Concurrence of two thirds of the Members present." Is it not implicit in that requirement that not all Members of the Senate were expected to participate in the trial for removal from Office? When the framers of the Constitution required that the Senators at the trial be "on Oath or Affirmation" did they not mean that if one cannot cast away party politics for the duration of the trial he or she should not be part of the two thirds of the Members present to decide on conviction?

With all this I don't even know what happened in Washington today. So, what are your thoughts on this?

[Thomas Hurt]

1. This is a process to fire someone...

from arguably the most important job in the world.

They aren't going to put him in prison or take any of property.

It is a political process, it doesn't take a crime to impeach, and he is getting all the process that is due.

It is a constitutional power and therefore is not nullifying an election.

When it is all said and done, Trump isn't going anywhere because the moral cowards in the Senate won't even hold a substantive trial.

This is no different than if you absconded from your place of employment with the petty cash, the company car and your boss' wife.

[hedda_foil]

2. It would all depend on the rules agreed by a majority of the Senate.

Just like the House Rules Committee determined and debated (again) and voted on the articles of impeachment, the Senate will basically do the same thing. McConnell will probably set the rules himself, although when Clinton was impeached, the Majority and Minority Leaders decided on them together. If he gets 51 Senators to vote "Aye" to them, those will be the rules. If he wanted the rules to give the Chief Justice the right to conduct voir dire on the Senators, he could put that up for a vote. He won't and if he did, the vast majority would vote against the rule.

The parliamentary hoohaw in the Senate is at least as tedious as in the House. They can delay even longer but they probably will want to get the impeachment trial over with.

[Huin]

3. What is left for the function of the presiding judge?

I hope it's not like you say. Unless this can be a trial under regular rules of federal rules of procedure, except the Senate being the fact-deciding body and a guilty judgment, though unlikely, resulting in nothing other than removal from Office, the entire process is a waste of time.

If we as United States citizens allow this process as you describe for the trial to exist over years, we deserve no better than to have someone like Donald Trump as President.

Impeachment is a serious undertaking and should not and must not be a political tool to destroy a political opponent. Instead it should and must be a process to protect the nation from an office holder who recklessly disregards the limits of powers he or she is entrusted with during their respective tenure. Likewise, the trial of such person for alleged crimes or misdemeanors set forth in any articles of impeachment can only proceed under established rules of trial procedure to arrive at a just result for the impeached but, more importantly, for the United States of America.

Would it not be correct to say that if Constitution mandates the Chief Justice to preside over an impeachment trial, then she or in this case he should have or must necessarily have the solemn obligation to determine what the rules of procedure for the trial are, a trial our Constitution entrusts him and expressly mandates him to preside over? Does he not have the power to hold those in criminal contempt who seek to diminish his constitutional mandate? Why else are all elected or appointed federal officials bound by oath or affirmation to support our Constitution? This requirement is not a farce.

Think about it.

And even if it has been done differently up to now, either because of ignorance or indifference toward the meaning of our Constitution, it is high time to start thinking about how to fix something which is apparently seriously wrong.

[FBaggins]

4. These wouldn't be bad ideas if we were writing a new constitution

Unfortunately... it’s pretty well established that “presides” doesn’t mean that he makes the rules.

The Senate isn’t just the fact-finding body (the jury), they are also the court (the Chief Justice isn’t). He can make rulings, but a majority can overrule him... and he follows their rules in running the trial (Rehnquist was frequently consulting their parliamentarian).

[Huin]

5. Thank you, though the second requirement needs discussion and interpretation

I agree that this 200+ year old document could stand an overhaul. But please look at the second requirement. "When sitting for that Purpose [the purpose of trying an impeached person], they shall be on Oath or Affirmation."

Why this requirement? The Senators are already bound by oath or affirmation to function in support of the Constitution. It would indeed be reasonable to say this requirement removes them temporarily from their normal duties as Senators and places them into the fact-determining part of the trial. There is no reason to doubt that the founding fathers envisioned anything other than that the trial would proceed according to established court procedure. I agree, the Chief Justice does not make rules for a trial, they were then in existence and may have been amended according to law over the years. But they do exist. It is the duty of the presiding judge to see that proper trial rules are followed.

Please note that the impeachment itself does not require a special oath or affirmation. The impeachment is merely an allegation of an wrongdoing for which the wrongdoer can be removed from Office if the allegation is found to be true. With respect to the trial, in contrast, it is of utmost importance that established rules for the Judiciary be followed for justice to prevail. Isn't it the purpose of this second requirement to bind the senators to their separate and distinct duty of determining the facts and letting the presiding judge make determinations on questions of law?

If indeed the Majority were allowed to make rules to deny facts and testimony to be brought before that trial, would the undertaking not become a farce? What would happen to our democracy?

[Hermit-The-Prog]

6. the Senate makes its own rules

Article I, Section 5
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

[Huin]

7. True, when the Senate sits and functions as Senate.

Since you are apparently well versed regarding the Constitution, you might expound of whether the Supreme Court has already interpreted and ruled on the meaning of Article I, Section 3, paragraph 6 When sitting for that Purpose, they shall be on Oath or Affirmation. Clearly, as I noted before, each member is already under oath or affirmation to support the Constitution (Article VI) when they sit as senators. Does that not mean that while they sit as trier of facts they have assumed a special duty necessitating the oath or affirmation as set forth in Section 3 of Article I?

I agree you have a good point. I would agree with you and would not even started my discussion, had it not been for that second and third sentence of the sixth paragraph. That requirement makes it logically implicit that the members when sitting for trying the impeachment become part of the special Court convened for that purpose. If you read Article III of the Constitution you will see that the judicial power in law and in equity arising under the constitution lies with the supreme Court. The trial of all crimes, except cases of impeachment shall be by jury. And as discussed before in cases of impeachment the senators take the function of the jury. Nevertheless, the trial is no less a judicial case controlled by the procedures of the court system and not by those of the Senate for their normal function as senators.