Jan 24, 2021 12:15 PM

Mulligan: Senate has control of impeachment trial process for the most part

Posted Jan 24, 2021 12:15 PM


Hutch Post

HUTCHINSON, Kan. — With the article of impeachment to be brought from the House to the Senate on Monday ahead of a trial next month, a legal expert from the University of Kansas notes that presidential impeachments are rare and the rules can be mostly made by the Senate when it comes to a trial.

"The Constitution says very little about the procedures required for any impeachment," said Lumen "Lou" Mulligan, Earl B. Shurtz Research Professor at KU Law. "One, trial shall be done by the Senate. Two, the Senators shall vote as a whole body, with two-thirds required to convict and in the case of the impeachment of the president, the Chief Justice shall preside."

It's important to note that whatever the rules have been in the past, the body can vote to change them.

"Impeachments happen, of course, not of Presidents with frequency, thank goodness, but we do have impeachments of judges and other officers that happened over the course of our history with some regularity and so there's rules about that and how that can be done," Mulligan said. "The Senate, in the case of lower level officers, has engaged in impeachment for part of the day and other business for the other half of the day."

Rules changes do not require the same majority as a conviction, so in an evenly divided Senate, if Democratic leadership wanted to, they could give Vice President Harris a large role in the process that she wouldn't otherwise have.

"If a rules change were 50-50, it would go to the Vice President, and then she would be the 51st vote to change the rules of the Senate."

In fact, if a conviction were obtained, other types of censure, like not allowing another run for federal office, would then only require that simple majority. Conviction is where the high bar is set.