Federal Legislation – In the Thick of It (Impeachment) 

Darryl Nirenberg
Partner
Eva Rigamonti
Associate
Patrick Northrup
Legislative Assistant
Steptoe & Johnson LLP

The slow-moving drama of President Donald Trump’s impeachment has continued to dominate Washington. Our articles in this space have spent the last several months discussing impeachment’s progress through the House of Representatives, and the process has now officially moved to the Senate. How did it get there, and what happens next?

The House Finishes Its Work

As PORAC’s January magazine went to print, the House was in the process of drafting articles of impeachment prior to a vote. In the final version of those articles, President Trump was impeached for “abuse of power,” in relation to his interactions with Ukraine, and “obstruction of Congress,” for his administration’s refusal to comply with multiple subpoena requests from the House. On December 18, these articles were passed on a largely party-line 229–198 vote, with one Democrat, Representative Jeff Van Drew of New Jersey, even switching parties after voting no.

Simply approving the impeachment articles is not, however, the end of the House’s role in the process. The House must transmit those articles to the Senate, which starts the Senate’s trial, and also must vote on the appointment of “impeachment managers,” a group of lawmakers who will essentially act as prosecutors during the trial. Generally, a vote on impeachment managers and transmittal occurs shortly after approval of the articles. In this case, however, Speaker of the House Nancy Pelosi (D-Calif.) decided to withhold the articles from the Senate, hoping that a delay would put pressure on Senate Majority Leader Mitch McConnell (R-Ky.) to clarify the details of the trial process. McConnell, for his part, maintained that he was under no obligation to reveal details and that he had the votes to advance trial rules with only Republican support.

The stalemate endured over the holidays and into the new year before Pelosi ultimately opted to transmit the articles without precondition. On January 15, she announced her team of impeachment managers:

  • Intelligence Committee Chairman Adam Schiff (D-Calif.)
  • Judiciary Committee Chairman Jerry Nadler (D-N.Y.)
  • Representative Zoe Lofgren (D-Calif.)
  • Representative Val Demings (D-Fla.)
  • Representative Hakeem Jeffries (D-N.Y.)
  • Representative Jason Crow (D-Colo.)
  • Representative Sylvia Garcia (D-Texas)

The appointment of these impeachment managers was approved on a 228–193 party-line vote. That same day, Demings, along with the other impeachment managers, physically carried the articles across the United States Capitol to the Senate. The following day, January 16, the impeachment managers, led by Schiff, formally read the articles to the Senate, marking the official start of the trial.

The Senate Takes Over

The Constitution clearly establishes that, when a federal official is impeached, the Senate acts as a jury and the chief justice of the Supreme Court, in this case, John Roberts, presides. However, it is much more ambiguous regarding the actual conduct of the trial. Senators must be physically present, but beyond this basic requirement the Senate has significant leeway to govern a trial as it sees fit. At the time this article went to print, the rules had not yet been approved.

But, nevertheless, the trial has begun. Immediately following the formal presentation of the impeachment articles by Schiff, Roberts administered the oath to “do impartial justice” to all 100 senators, who also signed the oath in writing. Now, the Senate must formulate, debate and approve the rules under which the trial will be administered.
As previously mentioned, the shape of those rules will take is unknown. However, McConnell has given away a few hints, noting that he would like the trial to resemble the impeachment proceedings during the Clinton administration. That could mean:

  • The Senate meets every day except for Sundays, as it did during the Clinton trial.
  • Formal legal briefs from the White House and the House of Representatives may be drafted and filed, leading to a brief break in the actual trial portion of the proceedings.
  • There may be multiple days of arguments from both the impeachment managers and the president’s legal team, followed by multiple days of questioning.
  • There may be several days of deliberations and closing arguments before a vote.

It could also mean witnesses, or not. Whether McConnell will allow witnesses to be called is a contentious question, and one that remains unresolved. Whatever the answer, it will be decided soon. From the time this issue goes to print until a verdict is reached, the Senate will focus solely on impeachment. Only time will tell how the trial proceeds.

What It Means for Law Enforcement

What does this all mean for law enforcement issues in Congress, and for PORAC priorities in particular? In all likelihood, not much. While the Senate will be taken out of the legislative process for several weeks, an unfortunate loss of time in a year already likely to be light on legislating due to the election cycle, the House, including relevant committees such as Judiciary, is now unencumbered by impeachment.

In addition, Congress as a whole has taken pains to show that it is able to accomplish work regardless of the impeachment proceedings, with both the House and Senate passing President Trump’s new trade deal with Mexico and Canada, the United States–Mexico–Canada Agreement (USMCA), prior to the trial. It is possible that PORAC priorities such as law enforcement funding, the Improving Community Safety Task Force Act, and the Public Servants Protection and Fairness Act are able to find similar bipartisan support. As PORAC’s voice in Washington, Steptoe will continue to advocate on these issues and others in the coming weeks and months.