Senate Majority Leader Charles E. Schumer, D-N.Y., and Minority Leader Mitch McConnell, R-Ky., reached agreement Monday on procedures for former President Donald Trump’s second impeachment trial that could lead to a vote on conviction within a week.
The Senate leaders announced their agreement on the trial procedures in floor remarks Monday, less than 24 hours before the trial was set to officially begin.
The procedures have the trial starting Tuesday with four hours of debate, to be equally divided by the prosecution and the defense, on the question of whether the Senate has the constitutional jurisdiction to try Trump now that he is no longer president.
The Senate will then vote on the constitutionality question, with a majority of senators determining whether the impeachment charge of inciting insurrection is dismissed or the trial proceeds.
Democrats are expected to have the votes needed to allow the trial to proceed, which would then trigger the other provisions of the trial procedures.
The prosecution and defense will have until 9 a.m. Wednesday to file any motions they want the Senate to consider — with exception of evidentiary motions to subpoena witnesses and documents, which would come later — when it resumes as the court of impeachment at noon that day.
Once the motions are dispensed with or if there are no motions made, the arguments begin. The procedures provide the House impeachment managers and Trump’s defense team up to 16 hours each to present their cases. That is eight hours less than the two sides were provided in Trump’s first impeachment trial, but in that proceeding there were two House charges to debate.
Like in the first trial, case presentations are limited to eight hours per day, so if both sides take up the full time, the arguments will drag into Sunday.
Typically, impeachment trials occur every day except Sundays until their conclusions, but the procedures were modified for this trial to accommodate a request from Trump’s defense team, led by attorney David Schoen, that the trial recess for the Jewish Sabbath. The trial will recess no later than 5 p.m. Friday until Sunday at 2 p.m.
Following the presentation of arguments, senators will have up to four hours to ask questions of the prosecution and defense teams. This is significantly curtailed from the 16 hours provided for in Trump’s first trial, but senators having been present for the Jan. 6 insurrection on the Capitol will likely have fewer questions about what transpired.
After senators’ questions, the prosecution and defense will each have up to an hour to present a case for subpoenaing witnesses or documents if they choose. The Senate would then vote on any motions to subpoena witnesses and documents.
Although neither side has indicated plans to subpoena any witnesses or documents, Schumer said the House managers wanted to make sure the trial procedures provided them an opportunity to do so.
“If the managers decide they want witnesses, there’ll be a vote on that. That’s what they requested,” Schumer said at a press conference in New York on Monday before the agreement was finalized. “They weren’t sure they wanted witnesses. They wanted to preserve the option.”
Democrats have signaled they are unlikely to want to call witnesses at the trial given they personally witnessed the events of Jan. 6. They also don’t want to drag out the proceedings, which will take valuable floor time away from the party’s priorities of confirming President Joe Biden’s Cabinet nominees and passing another round of coronavirus relief.
If the Senate were to subpoena witnesses, the procedures require the witnesses to be deposed before senators decide whether they want to hear their testimony. The procedures do not cover provisions for the arrangement and timing of witnesses’ depositions, which would have to be negotiated in a subsequent agreement if any witnesses are subpoenaed.
Each side will then be allowed to offer motions to submit additional evidence, if they had provided the other side access to the materials at least 48 hours in advance. Those evidentiary motions are debatable for up to an hour per side.
The prosecution and defense will then have up to two hours each for closing arguments before the Senate votes on the impeachment article. It would take 67 votes, or two-thirds of the Senate, to convict Trump, which is not expected since most Republicans have gone on record that trying the former president is unconstitutional.
As with prior impeachment trials, the procedures allow the Senate to vote to go into closed-door deliberations before any vote it must take, which could also delay the proceedings. But senators did not take advantage of that option in Trump’s first trial — with both sides concerned about hiding debate from the public — and are unlikely to do so in this trial.
The trial could conclude as early as Monday if neither side offers any motions to subpoena witnesses or documents or submit evidence, but they use all the other time allotted under the procedures. If they don’t use all the time for arguments, it’s even possible the trial could be done by the end of this week.
Schumer and McConnell both noted in their floor remarks that the House managers and Trump’s defense team agreed to the procedures.
“The structure we have agreed to is eminently fair. It will allow for the trial to achieve its purpose — truth and accountability,” Schumer said.
McConnell said the agreement “preserves due process and the rights of both sides.”
“It will give senators, as jurors, ample time to review the case and the arguments that each side will present,” he said.