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Senator Lankford Releases New Podcast on Process and Procedure for Senate Impeachment Trials

OKLAHOMA CITY, OK – The Office of Senator James Lankford (R-OK) today released the latest episode of The Breakdown with James Lankford. Lankford is joined by former Senate Parliamentarian, Alan Frumin, who served in the Office of the Parliamentarian of the United States Senate for 35 years, 18 of those as Chief Parliamentarian. Frumin was in the Office of the Parliamentarian during the Clinton Impeachment Trial in 1999. During this episode of The Breakdown, Lankford and Frumin discuss the constitutional guidelines for impeachment trials in the Senate, the history of impeachment trials and established Senate precedent, including federal judges and former presidents, as well as the rules and procedures that may play out in the Senate if the House of Representatives passes articles of impeachment.  

You can subscribe to The Breakdown with James Lankford on SoundCloud, iTunes, and Spotify.

EXCERPTS 

3:36-6:28

Lankford: I’ve had folks that have already said to me, ‘Well, if the president’s impeached, he’s removed.’ And that is a giant misnomer. Impeachment is not the action that removes the president, it’s actually the decision of the Senate. Impeachment is something the House [of Representavies] does, literally, it would be a recommendation from the House that they believe the president should be removed, but the removal of any president has to be determined by the Senate of the United States. And it’s not just a simple majority, is it?  

Frumin: No, it’s not a simple majority. It’s a multi-step process. As you said, impeachment is an act that the House undertakes with respect to the president, the vice president, and other civil officers in the government and that act on the House floor requires a simple majority, but that is simply step one. Many people have been impeached, who have not been removed from office, because the Senate has not convicted. Most notably, two presidents, President Andrew Johnson in 1868 and President Bill Clinton in 1999.

So impeachment is step one. Conviction in the Senate by a vote of two-thirds of the senators present is what’s required by the Constitution to remove an impeached official. We did have a president, Richard Nixon, leave office to avoid impeachment.

Lankford: He had an overwhelming vote to start the impeachment inquiry. There were 410 votes to begin the impeachment inquiry from the House of Representatives, but what happened from there?

Frumin: Well, I think he saw the handwriting on the wall and the stories go that a group of Senate Republicans, led by Barry Goldwater, understood that the sentiment in the country had turned against President Nixon, despite the fact that he had been overwhelmingly reelected in the previous election cycle, but that the case was being made apparently convincingly to a substantial majority of the country and that President Nixon’s support in the all-important forum, the Senate, had eroded and was continuing to erode. And we had senators like Barry Goldwater who understood the gravity of the situation and understood the significance of the Senate’s role, understood the tension that the framers built into the Constitution, and he traveled down Pennsylvania Avenue from Capitol Hill to 1600 Pennsylvania Avenue to chat with the President of the United States and gave him the news. 

Lankford: Right, his advice, really, his counsel. It’s an interesting thing, President Richard Nixon, as you’ve mentioned before, was not impeached, but he actually left office. Bill Clinton was impeached, but remained in office, the same as Andrew Johnson did in 1868. 

8:16-11:20

Lankford: That is impeach for what? Because the Constitution as it lays out the argument of what a president can be impeached for, for instance, it’s pretty clear for a president, just making this simple statement: ‘The judgment in cases of impeachment shall not extend further than normal removal from office in disqualification to hold and enjoy in the office of honor, trust, or profit on the United States, but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, bidding according to the law. 

It breaks down this simple statement then in Article 2, Section 4: ‘The President, Vice-President, all civil officers of the United States shall be removed from office on impeachment for, in conviction of: treason, bribery, or other high crimes and misdemeanors.’ 

Now, originally when this was debated in the late 1700s before it was finalized, it was a lot of debate about, ‘What would be the action of the House and the Senate when the Senate is going to remove someone, the House is going to impeach.’ Could it be for what they called ‘maladministration?’ Could it be failure to perform their duty? Could it be something like that and they had a lot of different drafts with different terms on it, but they eventually scratched all of those things and came back to this simple statement: impeachment would be a conviction of treason, bribery, or other high crimes and misdemeanors. The challenges for a parliamentarian: how do you define what’s a high crime or misdemeanor? 

Frumin: Well it’s a nice, simple statement, and you said the challenge for parliamentarians is how to decide what other high crimes and misdemeanors are? Of course we like to defer to the Senators. 

Lankford: That’s correct, they get to pick. It could be anything.

Frumin: Well, it could be anything that the House has begun, that the House alleges is the grounds for removal and the House alleges that and a majority of the House members vote that such and such behavior is an impeachable act. And, we’ve heard a pundits speculate that, well first of all it doesn’t have to be a criminal act. Let’s say the president decides to take a vacation and move to Switzerland. And the he or she is going to stay in Switzerland, good skiing there, it’s lovely in the winter, and you know as I’m told, it’s pretty nice in the summer. So, perhaps the president will just simply be absent. 

There’s no crime in that. If you or I did it, there’s no crime in that, but some might look at that act and say, ‘The president is derelict in his or her duty. The president simply is not seeing to it that the laws are faithfully administered.’ And so impeachment is really an organic process. What the House believes is an impeachable offense and that suspicion supported by a vote of a majority of the House members and then presumably that suspicion, that charge, that allegation ratified by the vote of two-thirds of the senators present. That well, yes, Switzerland is a wonderful place for the average American tourists, but it’s not a fair place for the president to be administering the laws.

Lankford: But again, it would be up the decision of the House of Representatives to determine that is something significant enough, they would consider that a high crime or misdemeanor at that point and then make the decision, go through the process, and actually have the vote, then it would come to the Senate it’s a whole different thing.

16:38-21:05

Lankford: So, when there’s confusion, and there will be through the process, there’s been some conversation to say that the members of the Senate, they come into the Senate when it goes into trial mode, and is a very different mode for the Senate, at that moment when the trial actually begins, and we’ll talk about some of the lead-up to that, when it begins, the senators, some have said, become jurors at that point. And they all just sit passively and there’s, jurors but they’re not jurors, literally, at that point. That was under some dispute for a while, but now it’s recognized they’re not jurors, they are still senators just making a decision, which means they’re also challenging the chair. And there’s been multiple times where there’s been an impeachment and whoever’s in the chair at that moment, actually overseeing the whole process, their decision’s been challenged. There’s been a vote of senators saying that we disagree with the chair, and they’re setting new precedent. So there’s so little precedent, there is precedent on this, but there’s so many unanswered questions, there’s still some interaction.

Frumin: There are precedents with respect to these rules and procedures. I’d like to say that there are precedents that suggest and portray a straight line of rationality. If in fact that’s the case, I’d be rather surprised. We do here in the current situation, many people continue to refer to senators as jurors. And as you’ve pointed out, that was actually litigated in 1999 during the impeachment trial of Bill Clinton. And the resolution to that points out a number of things. A Senate impeachment trial is simply unique. The Senate is not trying a criminal case. The Senate’s not trying a civil case, the general rules with respect to civil trials and criminal trials just do not apply. It’s what we lawyers charge extra to call, ‘Sui generis.’ The proceedings are unique, and in 1999, Senator Tom Harkin of Iowa made a point of order that one of the House managers in the Clinton impeachment trial, William Barr from Georgia, was referring to senators as jurors, and he made this point of order. And as the assistant parliamentarian on duty at the time. I was surprised, to say the least. Over the years, we’ve always believed that when a senator wants to make a point of order, it would be in his or her interest to chat with the parliamentarian in advance to have some sense as to what the advice from the parliamentarian to the presiding officer might be. Because in most instances, when the parliamentarian gives advice to the presiding officer, the presiding officer follows that advice. But of course, like everything else in life there are exceptions, and Senator Harkin accepted, did not bring his point of order, or his arguments to anybody in the parliamentarians office in advance. I do think we’ve touched briefly on the fact that during the trial there is no debate in order among Senators, by individual Senators, there is no colloquy, there’s no discussion back and forth, and this also played into this issue. So Senator Harkin made a point of order that Senators should not be referred to simply as jurors and I think ultimately, that was his point that well maybe we are jurors, but we’re more than simply jurors. But if that was his point, he never made that argument to me or to anybody else in the parliamentarians office. 

Lankford: But it’s an interesting thing to say there is no debate. While senators sit passively somewhat taking in all of the information. In fact that one of the interesting features of an impeachment is how it begins each day and it still runs the same way it has for two-plus centuries, that the Sergeant at Arms will begin by coming and making a proclamation every single day at the start of it by saying, ‘Hear ye, hear ye, hear ye, all persons are commanded to keep silent on pain of imprisonment while the Senate of the United States is sitting for the trial the articles impeachment exhibited by the House of Representatives against this fill-in-the-blank name of the United States.’ It will be a little jarring for I think for the American public to be able to turn on their TV and see the Sergeant at Arms saying, ‘Hear ye, hear ye, hear ye on pain of imprisonment, everyone must remain silent.’

27:35-28:36

Lankford: So, there’ve been lots of questions as well about witnesses and evidence. There’s lots of conversation nationally about what evidence is allowable there: Is that the standard federal rules of evidence? Is it a different set of rules? Is it like it would be in a court room? And then also the witnesses that are called—how do you call witnesses, and who gets to choose on that?

Frumin: Well every now and then, parliamentarians get to punt on questions. An impeachment trial is a fascinating thing for those of us who have worked in the Senate. It’s the intersection of Senate procedure and a judicial proceeding. As we discussed before even as a judicial proceeding, it’s unique. It’s unique in every respect. We are fortunate, here in the Senate, to have an Office of Legal Counsel, we are also fortunate over the years to have the good offices of the Chief Justice and his legal staff.  

29:18-32:18

Frumin: An impeachment trial is the combined efforts of different fields of expertise. The Senate parliamentarian understanding how the Senate operates as an institution, Senate Legal Counsel understanding how trials work, the Chief Justice and his people understanding how trials work, and how the several branches of the government interact.

The current Senate is very fortunate that Elizabeth MacDonough, our current parliamentarian, has both, well now, 20 plus years of Senate expertise, but she began her career after law school as a trial attorney. So she is another source of expertise with respect to witnesses and evidence and the logistics, both the content and the logistics of summoning witnesses and deciding what it is that that the Senate wants to hear from these people.

Lankford: So at the end of the day the most witnesses that are called, the ruling is, this person pertinent to the case. It can’t be just extraneous other and in the typical default is. If they have a connection to what is actually in front of us, it typically would be accepted as a witness to be called, but if they don’t have pertinence to what’s in front of us and they make that judgment call.

Frumin: Well that would be up to the Chief Justice, and the Chief Justice will receive input from all of the individuals that I mentioned. And my guess is the Chief Justice is more than competent to rule with or without that staff advice.

Lankford: It is also interesting as well that the Senate, if they disagree with the decision of the chair, there can be a challenge to the decision of the chair because again this is not like a typical courtroom, it’s still the Senate. So if there’s a determination, this is a witness or a rule of evidence, and the chair makes a ruling on in this case. It would be Chief Justice Roberts, makes a decision in a ruling on it, Senators can challenge that ruling and either go back to precedent, what’s been done in the past, or to say this is something unique to it, and they’re establishing new precedent on it and actually take a vote and to say no we’re going to allow this or accept it or then to be able to move through the process.

Frumin: Well if there is a challenge, yes, it does come down to a majority vote of the senators. 

Lankford: Right, and there were times for Rehnquist where he actually just put it to the Senate and just said you know this is this is new, let’s take a vote on it, and be able to run.

Frumin: And that’s consistent with both the impeachment rules, and the Senate’s standing rules are the Senate presiding officers are authorized, if they wish, to allow the Senate to make a decision initially without the input from the chair.

35:05-36:40

Lankford: Let me get down to the final deliberation, because I want to be able to wrap this up with it. When we talk about the Senate making their decision, again, this is not going to be TV drama in that sense what you would see on some one-hour show to come in and out, when the Senate is deliberating on something this big, how is that typically done in an impeachment? What would you anticipate that to look like for the final deliberation?

Frumin: Well that’s been a matter of some dispute and discussion. The Senate deliberates in private. Over the years senators have pushed back against that, but the interpretation of the Senate’s impeachment rules have led to the guidance from the Senate Parliamentarian to every presiding officer that the rules of the Senate require that deliberations take place behind closed doors. This was an issue in 1999. The organizational resolutions, with respect to the Clinton trial, anticipated some attempt on the part of senators to have the doors open for the trial. The advice had gone out that the doors must be closed and that if the senators wished to have the doors open for deliberation, that the impeachment rules would actually have to be suspended and in the Senate a vote on the suspension of the rules of a vote of two-thirds. Once again, this was disputed back and forth. The Chief Justice asked our advice, and we advised the Chief Justice that the default posture was that the doors had to be closed.

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For more information about Senator Lankford, visit: www.Lankford.Senate.Gov.

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