WASHINGTON – Several senators have skirted the rules by furtively passing notes to each other during President Donald Trump’s impeachment trial.
With Trump’s team finished with its opening statements, which wrapped up Tuesday, senators will actually be encouraged to pass notes, but not to each other.
Instead, they’ll be passing them to Supreme Court Chief Justice John Roberts, and, as the trial moves into its next phase, it will be the only way they are allowed to communicate their questions to the House impeachment managers and Trump’s legal team.
Under the procedural rules adopted in a marathon 11-hour session on the first day of the trial, senators will get 16 hours to ask questions. Senate Majority Leader Mitch McConnell, R-Ky., said the question period will be split up into two eight-hour sessions that will take place Wednesday and Thursday beginning at 1 p.m.
What questions they’ll still have after listening to dozens of hours of arguments from the two sides is anybody’s guess, but here’s a look at how the question phase of the trial will work.
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How do questions fit into the trial?
The Constitution requires only that senators take an oath for each impeachment trial, that a two-thirds majority is required to remove an official, and that the Supreme Court chief justice preside in the trial of a president. All other rules are set separately for each trial, by majority vote.
The Senate agreed to the question phase as part of the resolution that set up the trial format, which echoed the format for the 1999 trial of former President Bill Clinton. McConnell said the questions will alternate between Republicans and Democrats.
“During the Clinton trial, senators were thoughtful with their questions, and the managers and counsel were succinct in their answers,’ McConnell said. “I hope we can follow both of these examples during this time.”
After the questioning, senators could vote again on whether to subpoena witnesses or documents. GOP senators shot down that idea initially in a series of 53-47 party-line votes, which rankled some in the minority who felt the rule could prevent a fair trial.
“You cannot do that when you have a set of rules that says we’re not going to have the witnesses until after the senators have asked their questions,” said Sen. Michael Bennet, D-Colo. “We’re not going to have the documents until after the senators have asked their questions.”
But Sen. Lindsey Graham, R-S.C., said he would oppose calling witnesses.
“I want to end this thing sooner rather than later,” Graham said. “I don’t want to turn it into a circus.”
Why 16 hours?
The time frames for opening arguments and questions match the Clinton trial. Then-Senate Majority Leader Trent Lott, R-Miss., set the policy for alternating between Republicans and Democrats with Minority Leader Tom Daschle, D-S.D. Lott also said the same question wouldn’t be posed to both House managers and the president’s defenders, but he noted that senators could ask another follow-up question.
Party leaders also asked that questions be submitted to them first, so that they could identify duplications and structure the order of questions, according to a Congressional Research Service report on Senate trials.
Senate Minority Leader Chuck Schumer, D-N.Y., said each senator would ask their own questions, but that he would organize them to avoid posing the same question 10 days and to offer “some degree of order.”
“We have lots of questions and I am not censoring anybody,” Schumer said. “I am sure that a good number of the questions will give the House managers time to rebut all the holes in the president’s lawyers’ arguments, which they didn’t have in the course of the trial.”
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Sen. Mazie Hirono, D-Hawaii, said organizing the questions would avoid repetition.
“Does it make a lot of sense to you that we have 500 questions on the same question?” Hirono said. “Yeah, there’s going to be a need to look through the questions, so that we’re not repeating ourselves.”
Then-Supreme Court Chief Justice William Rehnquist, who presided at the Clinton trial, read the names of senators who submitted each question, some jointly and some individually. Rehnquist also suggested holding answers to 5 minutes each, a brisk goal in a chamber where debate sometimes rambles for hours.
“I would like to advise counsel on both sides that the chair will operate on a rebuttable presumption that each question can be fully and fairly answered in 5 minutes or less,” Rehnquist said to laughter.
Roberts, who is presiding at the Trump trial, said Tuesday that despite the laughter that he would adopt the same policy, which House managers and the Clinton’s lawyers seemed to follow in 1999.
“I think the late chief’s time limit was a good one and would ask both sides to abide by it,” Roberts said.
Don’t senators have to stay quiet?
Yes. That is why they will be asking written questions on notes that Roberts will pose.
Meanwhile, the senators must remain silent, under threat of prison.
Sergeant at Arms Michael Stenger announces at the start of each session: “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 for the articles of impeachment exhibited by the House of Representatives against Donald John Trump, president of the United States.”
Will senators really have questions?
During Clinton’s trial, senators posed more than 100 questions over two days.
Sen. Susan Collins, R-Maine, one of the current senators who also served during the Clinton trial, told Maine Public Radio she was pleased to offer the only bipartisan question with then-Sen. Russ Feingold, D-Wis.
“And those questions, of which there were more than 100, elicited a lot of information that was very useful,” Collins said.
Sen. John Barrasso, R-Wyo., said the questions would help senators decide the verdict.
“It’s time for the president to have his defense presented and it’s time for the Senate to ask our questions and then make our decision on final judgment, a decision of do we need more information or have we heard enough,” Barrasso said.
Sen. Chris Coons, D-Del., said he hoped that Trump’s team would put on a robust defense.
“I’m concerned there just isn’t enough interest among the majority caucus in hearing any more evidence,” Coons said. “They want to get through this as fast as they can.”
What questions are likely?
Most senators haven’t tipped their hands yet about which questions they might ask. But senators on each side were eager to hear more about the other side’s arguments.
“I think we’ll all have questions,” said Sen. Mike Braun, R-Ind., who said Democrats “opened a can of worms” by speaking at length about former Vice President Joe Biden’s role in Ukraine. “They’ll get collated and condensed into not asking the same things. It’ll be probably about stuff that has not been talked about.”
Sen. Kirsten Gillibrand, D-N.Y., said she has plenty of questions after listening to the opening argument from House Democrats. She would also like to ask about a recording that ABC News released Friday that appeared to show Trump calling for the removal of Marie Yovanovitch, the former U.S. ambassador to Ukraine.
“There’s a lot of information that needs to be followed up,” Gillibrand said. “There will be lots of opportunities hopefully to ask the hard questions and get key answers from both sides.”
The impeachment articles accuse Trump of abuse of power for urging Ukraine to investigate Biden and his son, Hunter Biden, who worked for the gas company Burisma Holdings, because Joe Biden is a leading Democratic challenger to Trump in the 2020 election. One manager, Rep. Sylvia Garcia, D-Texas, told the trial Thursday that allegations against the Bidens have been debunked. But Trump insists he was justified in fighting corruption in Ukraine.
Sen. Josh Hawley, R-Mo., released a series of questions Tuesday that he plans to pose to the lead House manager, Intelligence Chairman Adam Schiff, D-Calif. Hawley wants to ask Schiff about his contact with the whistleblower who complained about Trump’s dealings with Ukraine. Hawley also planned to ask about Hunter Biden’s work with Burisma Holdings, which Trump sought to investigate in what became the heart of the impeachment.
Graham also said he has questions about the roles each Biden played in Ukraine.
“I don’t know anything about the Biden connection to the Ukraine. So when the managers tell me this has been looked at and debunked, by who?” Graham asked. “The question is, will that withstand scrutiny?”