What’s Ahead at Senate Impeachment Trial

and the Senate is next. But there seems to be as many questions as answers about what the third presidential impeachment trial and Senate history will look like. Joining me to answer some of them is Jessica Roth, a professor at Cardozo Law School and a former federal prosecutor. Jessica The Constitution, in Article one, Section three, gives the Senate the sole power to try all impeachments, but offers only one thirty four words of guidance about that trial, what

specifically the Constitution provide. The Constitution provides that two thirds of the Senators who are present must vote to convict in order for the President or whoever is the subject of the impeachment to actually be convicted. Um, so that's provided in the Constitution. The Constitution also provides that when it is the president who is the subject of the impeachment, that the Chief Justice of the United States Supreme Court

shall be the presiding officer in the Senate. And the Constitution also provides that the Senators, when they are sitting as jurors in an impeachment trial, must take a special oath. So many lawmakers on both sides are referring to the senators as jurors in the upcoming impeachment trial. But at the impeachment trial of President Clinton, Chief Justice rank Quist prohibited the House managers from calling the senators jurors. Explain

why they're not really like jurors. There are many ways in which they are not like jurors in a normal judicial process, the most important of which is that they are also the determiners of the law as well. So although the Chief Justice can make preliminary rulings, for example, on evidence questions what evidence will be presented to the Senate to decide upon, he can actually be overruled by a majority of the senators on those essentially quasi legal questions.

Governing what evidence they will hear, and the same is true with respect to rules governing the process of the impeachment trial that are not strictly about evidence, and so in that sense, they are as much the judges as they are the jurors when we think about the difference in the role between judges and jurors. So that's one way. Another way is that they are exposed to a lot

of evidence outside of the process of impeachment. So jurors usually are told, don't consider anything you may have heard outside of the courtroom about this case in rendering your verdict. You must limit your deliberation solely to the evidence that's been presented in the courtroom, and don't discussed the case

with anybody outside of court. Nothing could be further here in terms of thinking about what the senators may be taking into account what they've been exposed to, and they can't be sequestered in the way that jurors could be in a highly sensational trial. There are other things you could do in a traditional criminal case if you were

concerned about juror impartiality that are not available here. For example, you could seek to postpone a trial that had been the subject of extensive publicity until a time when that publicity had died down. You could also seek a change of venue, to move it to a location where perhaps there hadn't been as much publicity or people weren't as directly affected by the crime that was the subject of the trial. Again, there's no possibility of either of those here.

So those are among the ways in which the senators are quite different from jurors in a traditional criminal case. It starts to sound less and less like a traditional trial. Also, the first thing a prosecute or defense attorney will consider when getting ready for a trial or even deciding whether to go to trial is what witnesses will be called. And in this case, Democrats want witnesses, and the Republicans, or at least send a majority leader Mitch McConnell has

said he doesn't want witnesses. So what happens there a trial without witnesses. Well, there are no rules, either in the Constitution or in the Senate rules that govern in impeachment proceedings about whether there have to be witnesses. Certainly, the standing rules that have been adopted, the adopted several decades ago to government impeachments contemplate that there would be witnesses,

but there don't have to be. But you're right that it's extremely unusual that you would have a normal trial that didn't involve witnesses. We think about that as being really one of the most salient characteristics of a trial, that you actually hear live testimony from witnesses. So it does seem bizarre that we would have something we'd even be calling a trial that would not involve the testimony of witnesses. Is in the Clinton impeachment trial, there was

testimony of witnesses, but it was not live. It was done through videotaped testimony. So there's also that, if you will, intermediate step of having not live testimony from witnesses on the Senate floor, but pre prepared videotaped testimony. So Jessica. Many Democrats have been critical of Senate Majority Leader Mitch McConnell for saying there's no chance Trump will be removed from office and also saying I'm going to take my cues from the president's lawyers. But is he just saying

what's obvious and is there anything wrong with that? He may be saying the obvious that it does not seem that there are the votes to convict the President based on the already expressed views of a majority of Republican Senators. And so to the event that he's communicating what has already been conveyed publicly by others and just essentially pointing

to the numbers, it strikes me that that's okay. When he said that he's doing everything in coordination with the White House and there'll be no distinction between the White House and the Republican Senators on the impeachment trial, that seems more problematic to me, because, as I said, the Constitution does require that the Senators take an oath to try the case impartially, and so to suggest that there will be no independence in the conduct of the trial

on the part of Senate Republicans seems to fly in the face of that requirement by Senators that they try the case impartially. You mentioned Chief Justice John Roberts, who will be presiding. Can he decide what evidence will come in? Could he force reluctant witnesses to testify if he wanted to. Chief Justice Roberts will be acting essentially as the spokesperson for the Senate in serving subpoenas on witnesses and ruling on recalcitrant witnesses. Essentially, he's not going to be acting

on his own in that regard. The Senators, for example, will be asking him to call witnesses and he would serve the subpoena in their name. Where he will have some independence will be on these evidentiary rulings, but he doesn't have to actually make those rulings. The rules governing the empeachment proceedings say that he may rule on evidentiary questions,

but he doesn't have to. He could defer to a majority of the Senate in the first instance on those questions, or if he exercises his discretion to make an initial ruling, that could be overridden by a Senate majority. So that's the space where he has some room for independence, but it's not absolute. As I said, he could be overridden

by a majority. And in the Clinton impeachment trial, Chief Justice Rehnquist took a very sort of passive role, was very deferential to the majority in the Senate, and really seemed to be seeking to play a minimalist role in that process. So it will be interesting to see how Chief Justice Roberts decides to view his role and exercise the discretion he does have under the rules governing impeachment. Thanks Jessica. That's Jessica Roth of Cardosa Law School. Thanks

for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg