Frequently Asked Questions About Flag Law

Summary: The "flag code" is the federal law that sets forth guidelines for the appearance and display of the U.S. flag ("flag") by private citizens. These guidelines specify times and conditions for display of the flag, manners and methods of display, and buildings where such display should occur. The guidelines for flag display vary based on the context and occasion, and there are detailed specifications for displaying flags at "half-staff." The flag code also specifies how to deliver the Pledge of Allegiance to the flag and appropriate conduct while watching a performance of the National Anthem. Most of the flag code contains no explicit enforcement mechanisms, and relevant case law would suggest that the provisions without enforcement mechanisms are declaratory and advisory only.

Summary: Efforts by states to punish verbal flag disparagement or prevent disrespectful flag display ("flag-misuse laws") have been struck down by the Supreme Court in Street v. New York and Spence v. Washington as free speech violations under the First and Fourteenth Amendments of the U.S. Constitution. Federal and many state laws also specify punishments for physical mistreatment of the U.S. flag ("flag-desecration laws"), although under Texas v. Johnson and U nited S tates v. Eichman , the Court held that application of these laws against expressive conduct violates free speech precepts. A separate issue is that federal and many state flag-misuse laws provide punishment for placing advertising images on a U.S. flag or displaying an image of a flag on merchandise. While these laws have not been challenged on free speech grounds, the Court has reserved the question whether the Johnson and Eichman holdings would apply in a commercial context, and it seems likely these laws would survive judicial scrutiny. Finally, while federal courts of appeals have rejected Establishment Clause challenges to recitation of the Pledge of Allegiance in classrooms despite language in the Pledge describing "one Nation under God," the Court in West Virginia State Board of Education v. Barnette held that a state law mandating that students participate in a recitation of the Pledge of Allegiance violates free speech precepts.

What Laws Regulate the Treatment of the U.S. Flag?

The federal law regulating flags ("flag code") sets forth guidelines for private citizens on the appearance and display of the U.S. flag ("flag"). The flag code also specifies how to deliver the Pledge of Allegiance to the flag and appropriate conduct while watching a performance of the National Anthem. Most of the flag code contains no explicit enforcement mechanisms, and relevant case law would suggest that provisions without enforcement mechanisms are declaratory and advisory only. Efforts by states to punish either verbal flag disparagement or disrespectful flag display ("flag-misuse laws") have been struck down under First Amendment free speech precepts that apply to the states through the Due Process Clause of the Fourteenth Amendment.

Federal law and many state laws also provide penalties for physical mistreatment of the flag ("flag-desecration" laws), although application of these laws would generally violate the U.S. Constitution. For instance, the federal Flag Protection Act, which criminalizes flag desecration, was struck down on First Amendment free speech grounds as prohibiting symbolic speech. Some federal and state flag-misuse laws also prohibit placing advertising images on the U.S. flag or displaying the U.S. flag on merchandise; these laws may also be vulnerable to free speech challenges, although the Supreme Court has reserved this question. Finally, there are mandatory state requirements directing the daily recital of the Pledge of Allegiance by teachers that have been upheld against Establishment Clause challenges, although a requirement that students participate in such recitation was struck down as a violation of free speech.

What Are the Voluntary Guidelines for How U.S. Flags Are Displayed?

The flag code provides detailed guidelines for the appearance and display of the flag. The flag is to contain thirteen horizontal stripes, alternating red and white, and the union of the flag (the blue field) is to contain one star for each state. Flags are displayed from sunrise to sunset; however, a properly illuminated flag may be displayed at night. The flag should be hoisted briskly and lowered ceremoniously and should not be displayed during days of inclement weather unless an all-weather flag is used. The flag should be displayed daily on or near the main building of every public institution, in or near polling places on election day, and in or near schools on school days. There are guidelines for when a flag is used in a procession, displayed on a float or motorcar, displayed with other flags, or displayed from a flagpole. There are also detailed guidelines for when and how flags are to be displayed at half-staff. There are guidelines for when a flag is used to cover a casket and for when a flag is suspended across a building corridor or lobby. There is a description of the appropriate conduct of persons during the hoisting, lowering, and passing of the flag, and there are directions for how a flag is not to be treated. Finally, the President can modify the flag display requirements of the flag code.

Can Prohibitions on Flag Misuse or Desecration Be Enforced?

The Supreme Court has repeatedly struck down the application of flag improper use or desecration laws on free speech grounds. In Street v. New York , the Court considered a challenge to a law that made it a misdemeanor to "publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]." In Street , the defendant, learning of the shooting of civil rights activist James Meredith, burned a flag on a Brooklyn street corner while stating "Yes; that is my flag; I burned it. If they let that happen to Meredith, we don't need an American flag." The Court in Stree t first concluded that the trial record did not establish whether the defendant's conviction had been for burning the flag or for the accompanying words, so it considered either as possible grounds for the conviction. The Court evaluated the purported governmental interest in punishing the defendant's words, rejecting the argument that the government's intent was to deter the incitement of unlawful acts. The Court next held that the speech in question was not "fighting words," i.e., words so inherently inflammatory that they were "likely to provoke the average person to retaliations, and thereby cause a breach of the peace." Nor, the Court concluded, was the statute narrowly drawn to punish only words of that character. Further, the Court dismissed the argument that government interests in avoiding "shocking" or disrespectful speech outweighed the freedom to express one's opinions about the flag. Finally, the Court concluded that freedom of speech protected public expression of opinions about the flag, even if such opinions are defiant or contemptuous. Because it had sufficient basis to overrule the conviction based on the spoken words alone, the Court declined to pass upon the validity of the New York law as applied to the flag burning.

In the subsequent flag-misuse case of Spence v. Washington , a college student was convicted under a Washington State improper use law for affixing a peace symbol made of removable tape to a U.S. flag and hanging the flag upside down from an apartment window. The defendant testified that he had put the peace symbol on the flag as a protest against the Cambodian invasion and the killing of students at Kent State University during anti-war protests. The Court held that the student's act was symbolic speech, an activity imbued with communication. The Court also held there were no facts to support a breach of the peace, nor was there a valid governmental interest in avoiding offensive speech. The Court concluded that the flag had not been damaged by the removable tape, so maintaining the physical integrity of the flag was not at issue. Thus, the Court concluded that no governmental interest existed to support the conviction within the contours of the First Amendment.

In Texas v. Johnson , a political demonstration participant at the 1984 Republican National Convention in Dallas was convicted of burning a flag in front of Dallas City Hall. He was convicted under a Texas statute that prohibited the desecration of a venerated object, sentenced to a year in jail, and fined $2000. Texas conceded that the flag burning was expressive conduct, but argued that there was sufficient governmental interest in such prohibition. The Court rejected the argument that the law was designed to prevent breaches of the peace, noting that no such breach occurred in this case and that Texas had not shown that every flag-burning was "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Further, Texas already had a statute that prohibited breaches of the peace.

The Court in Johnson also held that Texas's assertion that the law was needed to preserve the flag as a symbol of nationhood and national unity only showed that the law was targeting expression, not conduct. Further, the law's application only to severe acts of physical abuse against the flag that were likely to be offensive made clear that the restriction was content-based. The Court found Texas's expressed interestâthat flag-burning casts doubts on the meaning of the flag as a national symbolâcould not be justified because society found the burning offensive or disagreeable. Thus, the defendant's conviction was held to violate the First Amendment.

In response to the Johnson decision, Congress enacted the Flag Protection Act of 1989. Two separate groups of protestors were prosecuted for flag burning under this act, and their cases were considered by the Supreme Court in U nited S tates v. Eichman . As the government in Eichman conceded that the defendant's conduct was expressive, the Court limited its decision to whether the Flag Protection Act was constitutionally distinct from the Texas statute in Johnson . The government contended the Flag Protection Act did not target expressive conduct, but was intended to protect the physical integrity of the flag in order to safeguard the flag's identity "as the unique and unalloyed symbol of the Nation." It argued that, unlike the Texas statute in Johnson that prohibited only flag desecration "that seriously offend[s]" onlookers, the act's prohibitions were not based on motive, intended message, or the likely effects of the conduct on onlookers.

The Court, however, held that the mere destruction of a U.S. flag did not affect the significance of the flag as a symbol of national unity unless that destruction was done with the intent to communicate a message. Further, the language of the actâwhich prohibits mutilating, defacing, defiling or trampling upon a flagâconnotes disrespectful treatment of a flag in order to damage the flag's symbolic value, and the exception for disposal of "worn or soiled" flags exempts acts traditionally associated with patriotic respect for the flag. Thus, the Court held that the act was a regulation of expressive activity and, consistent with its decision in Johnson , struck it down.

Resolutions were introduced in the 115th Congress proposing a constitutional amendment to authorize Congress to prohibit physical desecration of the flag, but no similar resolutions have been introduced in the 116th Congress thus far.

Can a U.S. Flag Be Used for Advertising?

Flag-misuse laws sometimes include a prohibition on the use of the U.S. flag for certain forms of commercial speech such as advertising. Commercial speech, however, has fewer constitutional protections than other forms of speech. The Supreme Court considers speech commercial when: (1) it is contained in an advertisement; (2) refers to a specific product or service; and (3) the speaker has an economic motivation for making it. The Court in Eichman , when striking down the Flag Protection Act, noted that its opinion did not extend to prohibitions on the commercial exploitation of the U.S. flag. Thus, the question remains whether prohibitions on the use of flags for advertising purposes violates the First Amendment.

It does not appear that any court has directly addressed whether the use of a U.S. flag in advertising is commercial speech. One difficulty in analyzing this issue is that the display of a flag in advertising appears to add little expressive content to the commercial aspects of the advertisement. In other words, while a U.S. flag may be used in an advertisement and its use may be economically motivated (fulfilling the first and third criteria for commercial speech), the display of a flag is unlikely to convey information about the specific product or service. Rather, the expressive content of displaying the flag would appear to be to link the product or service to a political message such as patriotism or national pride. To the extent that the display of the flag in an advertisement communicated an idea such as patriotism, then it might not even be treated as commercial speech but would be analyzed as expressive conduct.

Even if advertising using a flag was evaluated as commercial speech, the statute prohibiting it might still be found to violate free speech, as commercial speech does retain some free speech protections. In Central Hudson Gas & Elec. v. Public S ervice Comm ission , the Court considered whether the Public Service Commission of the State of New York could order electric utilities in New York State to cease advertising promoting electricity use. The Court noted a "common sense" distinction between speech proposing commercial transactions that occurs in an area traditionally subject to government regulation and other varieties of speech. Consequently, the Court applied a four-part analysis for commercial speech. First, for commercial speech to be protected, it must concern lawful activity and not be misleading. Next, there must be a substantial government interest in its regulation. If both inquiries yield positive answers, the Court must determine whether the regulation directly advances the governmental interest asserted and whether it is "narrowly drawn" to be no more extensive than necessary to serve that interest.

In Central Hudson , the Court held that New York's interest in reducing inequities in the regulated electricity market that would be caused by increased energy consumption was substantial, as was the government's energy conservation interest. The Court went on to hold, however, that it was speculative whether the governmental interest in avoiding inequities would be served, and that this interest was only served if other factors that affected electricity rates remained constant. The Court did find that the State's interest in energy conservation was substantial and that the parties did not dispute that advertising would increase sales. The Court, however, struck down the advertising ban as not narrowly drawn to that interest, in that it prohibited not only advertising that would increase energy use but also advertising that would have an energy neutral effect or would lead to a net decrease in energy consumption.

It should be noted that, despite the more limited protection afforded commercial speech, the Supreme Court has not upheld governmental suppression of truthful commercial speech in more than twenty years. Further, several post- Central Hudson cases seem to afford more protection to commercial speech than originally contemplated by the case. For instance, in City of Cincinnati v. Discovery Network, Inc. , the Court, considering a City of Cincinnati regulation banning commercial publications from public newsracks, rejected the "bare assertion that the 'low value' of commercial speech is a sufficient justification for [a] selective and categorical ban on newsracks dispensing 'commercial handbills.'" Rejecting the city's regulation, the Court noted that "the city's argument attaches more importance to the distinction between commercial and noncommercial speech than our cases warrant and seriously underestimates the value of commercial speech." Similarly, in 44 Liquormart, Inc. v. Rhode Island , Justice Stevens, writing for a plurality, suggested that the First Amendment requires a full, "rigorous review" of any commercial speech regulations "unrelated to the preservation of a fair bargaining process[.]"

Even applying the Hudson analysis, there are arguments that flag-misuse laws regarding advertising would violate free speech. Assuming such advertising neither involved an inherently unlawful activity nor was intended to mislead a viewer (the first prong of the Central Hudson test), the law would be subject to the remaining three prongs of Central Hudson : whether there is a substantial government interest, whether the law directly advances that governmental interest and whether the law is "narrowly drawn." While this analysis would occur in the context of commercial speech, the Court's analysis of restrictions on symbolic speech, which is similar to the analysis of commercial speech, would be relevant.

For instance, while concerns about avoiding a breach of the peace is a substantial governmental interest, it seems unlikely that, after Spence and Johnson , the Court would find that prohibiting using a flag for commercial advertising was intended to avoid a breach of the peace. Similarly, preserving the flag as a symbol of national unity, while it might be a substantial governmental interest, would also seem unlikely to be significantly damaged by the use of flags for commercial activity. Finally, as in Eichman , preserving the physical integrity of a privately owned flag would be unlikely to be a sufficient government interest to outweigh the suppression of expressive conduct. Thus, a court would be likely to find that enforcement of a flag-misuse statute against a commercial advertisement violates precepts of free speech.

Can Schools Require Teacher-Led Recitation of the Pledge of Allegiance?

Teacher-led recitations of the Pledge of Allegiance have been challenged as violations of the Establishment Clause of the First Amendment. Specifically, a variety of federal courts have addressed whether the use of the phrase "one Nation under God" in the Pledge of Allegiance renders a recitation of the Pledge by a teacher to students unconstitutional. For instance, the U.S. Court of Appeals for the Ninth Circuit Court (Ninth Circuit) held that daily recitations of the Pledge of Allegiance violates the Establishment Clause of the First Amendment. That decision was overturned by the Supreme Court on other grounds, however, and a later decision by the Ninth Circuit reached the opposite conclusion.

In Newdow v. Unite d States Congress , the Ninth Circuit considered a case brought by a father that argued the Pledge of Allegiance recitation by his daughter's public school teacher violated the Establishment Clause of the First Amendment. The father did not claim that his daughter was compelled to recite the Pledge, but argued that his daughter was compelled to watch her state-employed teacher proclaim that there is a God and that the United States is nation under that God.

The Ninth Circuit considered this challenge using the "coercion test," first articulated in the case of Lee v. Weisman , which held that "the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so." In Weisman , the court concluded that "the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position." The Court also considered the "heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools," holding that the school district's supervision and control of the graduation ceremony put impermissible pressure on students to participate in, or at least show respect during, the prayer. The court in Newdow similarly reasoned that the school had placed its students in the untenable position of choosing between participating in the Pledge or protesting and that the monotheistic religious content of the Pledge was not de minimus.

The Supreme Court, however, overturned the Newdow case on other grounds, holding that the child's father, who had disputed custody over his child, lacked standing to bring the case. Subsequently, the Ninth Circuit, considering a Pledge of Allegiance passed by Congress after the Newdow decision (but using the same words), concluded that its previous opinion in Newdow was no longer binding precedent, that Supreme Court Establishment Clause case law had subsequently changed, and that Congress, when passing the new version of the Pledge of Allegiance, established a secular purpose for the use of the terms "Under God." Thus, the Ninth Circuit upheld the recitation of the Pledge of Allegiance by public school teachers. Other United States Courts of Appeals have also rejected Establishment Clause challenges to the recitation of the Pledge of Allegiance in public schools.

Do Students Have to Recite of the Pledge of Allegiance?

The flag code provides that the Pledge of Allegiance shall be rendered standing at attention facing the flag with the right hand over the heart. Many states have statutes providing that schools provide for an opportunity for the daily recitation of the Pledge by public school students. The Court in West Virginia State Board of Education v. Barnette , however, held that that mandating that a student participate in a recitation of the Pledge of Allegiance violates free speech principles under the First Amendment.

As noted previously, the federal "flag code" specified conduct when delivering the Pledge of Allegiance is voluntary. In West Virginia State Board of Education , the Supreme Court considered a West Virginia Board of Education (Board) mandate for public school students to perform the Pledge on a daily basis. A child who would not participate was expelled until such time as they complied and the child's parent or guardian could be fined $50 or jailed for up to 30 days. The Court concluded that the requirement, that students perform a stiff-arm salute and recite the Pledge, was a violation of the free speech protections of the First Amendment.

The plaintiffs in Ba rnette were Jehovah's witnesses whose religious beliefs conflicted with the requirement of pledging allegiance to the laws of a secular government. The Court analyzed the Board requirement as compelled speech holding that the mandated flag salute was a form of symbolic utterance. The Court also noted that remaining passive during a flag salute did not present the kind of clear and present danger that would justify regulation. The Court also discounted arguments that the Pledge fostered national unity, noting that "[a]uthority here is to be controlled by public opinion, not public opinion by authority." The Court held that these precepts applied regardless of whether there was a religious basis for the student's objection to performing the Pledge.


The Impeachment Process in the Senate

Summary: After the House impeaches a federal officer, the Senate conducts a trial to determine if the individual should be removed from office. The Senate has a set of rules specific to the conduct of an impeachment trial, most of which originated in the early 19 th century.

Summary: The impeachment rules lay out specific steps that the Senate takes to organize for a trial. House managers (Members of the House who present the case against the impeached officer in the Senate) read the articles of impeachment on the Senate floor. The Presiding Officer and Senators take an oath to do impartial justice, and the Senate issues a "summons" to the accused and requests that a written answer be filed. The House Managers are also invited to respond to the answer of the impeached officer.

Summary: Actions after these organizing steps, however, are not specified in the impeachment rules. The impeachment rules mention some actions that are common in judicial trials, such as opening and closing statements by the parties to the case and the examination of witnesses, but provide little specific guidance. Instead, the rules allow the Senate, when sitting for a trial, to set particular procedures through the approval of "orders." Some orders of the Senate are unanimous consent agreements, but others are proposals adopted by the Senate. If such a proposal is considered while the Senate is sitting for the trial, then debate is limited by the impeachment rules. As a result, the support of three-fifths of the Senate to invoke cloture is not necessary to reach a vote to approve a procedural proposal. In previous trials, such proposals have been subject to amendment. Senate published precedents do not provide guidance on what can or cannot be included in such an order.

Summary: Compared to when the Senate meets in legislative and executive session, the opportunity for individual participation by Senators in a Senate trial is limited. The rules require that any debate among Senators take place in closed session. Senators can make motions under the impeachment rules, but these rules are silent on what motions can be offered, and when. In modern trials, when Senators proposed motions, it was often pursuant to a previously-agreed-to order of the Senate. Senators can also submit written questions during the trialâto House Managers, counsel for the impeached officer, or witnessesâthat the Presiding Officer presents on their behalf. Orders of the Senate, however, might structure the time and process for posing questions. During the open portion of an impeachment trial, Senators spend most of the time listening to arguments presented by House Managers and counsel for the impeached officer.

Summary: Impeachment Rule XI allows the Senate to create trial committees to hear and consider evidence and report it to the Senate. Such committees were not intended to be used for presidential impeachments, but four of the five impeachment trials completed since 1936 concerned federal judges, and in each of these cases the Senate established a trial committee.

Summary: When the Senate meets in closed session to deliberate, each Senator may speak only once on each question. Such remarks are limited to 15 minutes on the final questionâwhether the impeached officer is guilty or not guiltyâand to 10 minutes on other questions. On the final question, Senators respond "guilty" or "not guilty" on each article of impeachment. The support of two-thirds of Senators present on an article is necessary to convict.

Summary: The Presiding Officer of a trial operates much like the Presiding Officer in regular Senate session, in that the Chair may issue an initial ruling, but any Senator could request that the full Senate vote instead. Because of the debate limitations in the impeachment rules, procedural decisions appealed or submitted by the Chair can be reached with majority support. In a presidential impeachment trial, the Chief Justice of the United States is the Presiding Officer.

Summary: Although the impeachment rules prescribe that the Senate convene at noon for a trial, six days a week, a Senate majority can alter this schedule. It is possible for the Senate to conduct legislative and executive business on the same calendar days that it meets for a trial, but it must meet in legislative or executive session to do so. When the Senate is sitting as a Court of Impeachment, legislative and executive business cannot occur.

Summary: The information presented in this report is drawn from published sources of congressional rules and precedents, as well as the public record of past impeachment trial proceedings. It provides an overview of the procedures, and some past actions, but should not be treated or cited as an authority on congressional proceedings. Authoritative guidance on the interpretation and possible application of rules and precedents can be obtained only through consultation with the Office of the Senate Parliamentarian.

Under the terms of the U.S. Constitution, it is the responsibility of the House to impeach (meaning, formally accuse) a federal officer of high crimes and misdemeanors, and the responsibility of the Senate to try and then possibly convict that officer. The Senate therefore does not initiate impeachment proceedings, but instead acts after the House has charged a federal officer with wrongdoing.

The Constitution grants the Senate the sole power to try all impeachments, and establishes four requirements for an impeachment trial in the Senate: (1) the support of two-thirds of Senators present is necessary to convict; (2) Senators must take an oath or an affirmation; (3) the punishments the Senate can issue cannot extend further than removal from office and disqualification from holding future office; and (4) in the case of a presidential impeachment trial, the Chief Justice, and not the Vice President or a Senator, is the presiding officer.

All other trial procedures are left to the Senate to determine itself. Indeed, in 1993, the Supreme Court ruledâin response to a claim by an impeached federal judge that his trial was unconstitutional because the Senate relied, in part, on a committee to collect evidenceâthat the judicial branch did not have a role to play in assessing the validity of Senate impeachment procedures. According to the Supreme Court, the Constitution placed a few specific requirements on the trial, and "their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings."

In each of the 15 impeachment trials the Senate has completed since 1789, the Senate has therefore determined its method of proceeding. Although attention was certainly paid to past precedent, the Senate established unique procedures for each trial to some extent, and sometimes the decisions reached regarding process were consensual or even unanimous. Notably, of the 5 full trials conducted in the last 80 years, 4 were of federal judges. In these four cases the Senate appointed a trial committee, composed of an equal number of Senators from each party, to hear and consider evidence and report it to the Senate. This history did not provide the Senate with a robust set of precedents to look to for guidance on how to conduct a modern trial, particularly if a committee will not be used. Trial committees were not intended to be used for presidential impeachments, and the only trial since 1936 conducted without a committee was that of President William Jefferson Clinton. That trial illustrates the many procedural decisions reached that were tailored for that particular set of circumstances.

This report summarizes the existing rules and some past practices of the Senate related to an impeachment trial of a federal official. It does not discuss possible grounds for impeachment or other Constitutional or legal issues which are addressed in CRS Report R46013, Impeachment and the Constitution , by Legislative Attorneys Jared P. Cole and Todd Garvey. The information presented in this report is drawn from published sources of congressional rules and precedents, as well as the public record of past impeachment trial proceedings. It provides an overview of the procedures and should not be treated or cited as an authority on congressional proceedings. Consultation with the Office of the Senate Parliamentarian is always advised regarding the possible application of rules and precedents.

History of the Impeachment Rules of the Senate

The Senate adopted a set of impeachment rules in 1868, recommended by a select committee appointed for that purpose, in anticipation of the trial of President Andrew Johnson. These were not the first rules regarding impeachment ever agreed to in the Senate. The Senate had agreed to rules for its two earliest impeachment trials (Senator William Blount, 1798-1799, and District Judge John Pickering, 1803-1804), but it seems to have considered the rules to apply only to the trial of that particular individual. For the third impeachment trial, that of Supreme Court Justice Samuel Chase (1804-1805), the Senate approved 19 impeachment rules, and these rules appear to have been used in the next two trials (District Judge James H. Peck, 1831-1832, and District Judge West H. Humphreys, 1862). The 1868 select committee in the Johnson impeachment was explicit in its intent to recommend permanent rules, deeming it "proper, to report general rules for the trial of all impeachments." The select committee recommended 25 rules, many of which were the same as those adopted for the Chase trial, and some of which codified practices from previous trials.

The rules reported by the 1868 select committee in the Johnson impeachment chiefly concerned the mode and manner of preparing for a trial. Some Senators argued that impeachment rules should not be too prescriptive regarding the actual trial proceedings, believing such decisions to be best made after the Senate had convened for the trial. They recognized that the outcome of a trial could depend "upon the rulings and mode of proceeding during the trial." But the lack of detail in the rules also reflected the nature of Senate proceedings in the middle of the 19 th century. Without designated party floor leaders and with very few staff, Senators were accustomed to discussing procedures on the floor, effectively working out a method of proceeding on legislation as they went along.

The Senate adopted the rules reported by the select committee, and they have operated as the rules for impeachment trials since 1868, with very few changes. During the Johnson trial, when disputes arose about the interpretation of the rules, the Senate agreed to three changes to clarify their intent. Despite calls to revise the rules for the impeachment trials conducted early in the 20 th century, the impeachment rules were not changed again until 1935. At that time, the Senate, in response to reported low attendance by Senators during the 1933 trial of district judge Harold Louderback, agreed to the current Rule XI, which allows for the establishment of a committee to receive evidence and hear testimony from witnesses (see discussion of trial committees below).

The Senate next reviewed its impeachment rules in 1974, when the House was expected to impeach President Richard Nixon. (The House had not impeached a federal officer since 1936.) At that time, the Senate directed the Committee on Rules and Administration to examine Senate impeachment rules and precedents with a view toward recommending necessary revisions for the conduct of a trial. The Committee met twice to discuss the rules and to pose questions to the Senate Parliamentarian and his assistant, and over two additional days it also heard testimony from Senators regarding the rules. The Majority Leader wrote a letter to the Rules Committee proposing significant changes to the impeachment rules, and the Committee discussed these proposed changes as well.

The Rules Committee reported an original resolution (S.Res. 390, 93 rd Congress) proposing adjustments to 13 of the 26 rules. Of the suggested changes, nearly all were meant to clarify the meaning of the rule or to codify what had been the practice in past trials. The Committee did not recommend any major changes to the rules or report any new rules. As the accompanying committee report explained, "there appeared to be a consensus among the Members that for the most part the existing rules should be retained and that amendments thereto should be proposed only with the most valid justification."

The Senate, however, never took up the resolution reported by the Rules Committee in 1974 because President Nixon resigned before being impeached by the House. Twelve years later, when the House next impeached an officer, the Senate again directed the Rules and Administration Committee to review the rules. The Rules Committee in 1986 recommended the changes that had been approved by the committee in 1974, and the Senate agreed to them.

No further changes have been made to the impeachment rules. The rules, formally titled the "Rules of Procedure and Practice in the Senate When Sitting on the Trial of Impeachments" are printed in the Senate Manual as well as in a 1986 Senate document that also describes precedents and practices at an impeachment trial, Procedure and Guidelines for Impeachment Trials in the United States Senate.

Impeachment Trial Procedures and Practice

When the Senate conducts an impeachment trial, it does so in a procedural mode that is distinct both from legislative session (where bills and resolutions are considered) and from executive session (where nominations and treaties are considered). The differences are significant, but precedent does dictate that if the impeachment rules are silent, the regular Standing Rules of the Senate, where applicable, may guide proceedings.

The impeachment rules prescribe a series of steps for the start of the trial, which are described below. The Senate follows these steps to organize itself for the trial and then requests written statements from the impeached officer and from the House regarding the charges. The next stage is the receipt and presentation of evidence, and the impeachment rules provide little guidance regarding this process. Actions taken at this stage have varied from trial to trial. Arguments are made on the Senate floor by House managers (Members of the House selected to prosecute the case in the Senate) and counsel for the impeached officer (an attorney or attorneys who were chosen by the accused). The Senate could decide to request documents and hear testimony from witnesses, who could receive questions from the House managers, counsel for the impeached officer, and Senators.

Senators are expected to attend the trial, but their individual participation in open session is limited. They can submit questions in writingâfor a witness, House manager, or counsel for the impeached officerâbut the Presiding Officer of the trial, not the Senator, reads the question, announcing which Senator posed it. Debate among Senators is not allowed during the trial unless the Senate, by majority vote, goes into closed session, where the length of time each Senator can speak is limited. The Senate impeachment rules refer to opportunities for both Senators and the parties to the case to place proposals before the Senate for a vote; in modern practice, however, the Senate has structured the order of considering proposals, either by unanimous consent or by agreeing to a resolution by majority vote.

Votes can occur in open or closed session on procedural questions, such as those that might set the schedule for the trial, structure time for arguments and questions, and arrange for witnesses. In previous trials, the vote on the final question of whether or not to convict has always occurred in open session. Conviction requires a vote of two-thirds of Senators present on any article of impeachment.

Receipt and Presentation of Articles of Impeachment

The impeachment rules establish a timeline for the Senate to take several actions after it receives formal notice from the House regarding an impeachment. Specifically, under Impeachment Rule I, Senate action is triggered by the receipt of notice from the House "that managers are appointed" and "are directed to carry articles of impeachment to the Senate." The House, in modern practice, first agrees to articles of impeachment in the form of a simple resolution (H.Res.), and then agrees to another privileged resolution (or sometimes multiple resolutions) that serves to instigate action in the Senate as prescribed by the rule. In this second resolution (or series of resolutions), the House selects Representatives who serve as "impeachment managers." These Members of the House will argue the case for impeachment before the Senate. The resolution also grants authority to the House managers to take actions to prepare and conduct the trial in the Senate. Finally, the resolution directs that a message be sent to the Senate to inform them that managers have been appointed.

In practice, after receipt of the message from the House, the following actions take place in the Senate:

The Senat e, by unanimous consent, establishes a time for the House Managers to prese nt the articles of impeachment to the Senate . Impeachment Rule I provides that the "Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers." Instead of following the letter of the rule, however, the Senate reaches a unanimous consent agreement that sets a specific time for the Secretary to invite the House managers to appear. The time agreed upon in modern trials has been within a day or two of receipt of the House message. Scheduling a time is more convenient for all Senators, and these unanimous consent agreements have been reached within the context of a rule that appears to require immediate action.

A House manager reads the articles of impeachment aloud on the Senate floor, sometimes after a live quorum call to bring Senators into the chamber. The impeachment rules require that the articles of impeachment be "exhibited," which means read before the Senate. At a time arranged by unanimous consent, and sometimes after a live quorum call to ascertain the presence of Senators, the House Managers arrive on the floor of the Senate, are announced by the Secretary to the Majority or the Sergeant at Arms, and are escorted by the Sergeant at Arms to seats assigned to them in front of the Senate rostrum. The Presiding Officer then directs the Sergeant at Arms to make a proclamation required by Impeachment Rule II:

"All persons are commanded to keep silence, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of United States articles of impeachment against _____."

A House Manager, typically the Chair of the House Judiciary Committee, then reads the articles in full before the Senate. The House Manager also makes a statement that the House reserves the right to amend the articles of impeachment. The Presiding Officer then announces, again using language from Impeachment Rule II, that the Senate will "take proper order on the subject of impeachment" and notify the House. The House Managers then exit the Senate chamber.

Impeachment Rule III provides that after the articles are presented by the House managers, the Senate will proceed to consider the articles at 1 o'clock the next day (unless the next day is a Sunday), or sooner if ordered by the Senate. In modern trials, the Senate has most often taken the steps necessary to organize for an impeachment trial on the same day that the articles of impeachment were read on the floor. After the presentation of the articles, the Senate takes the following steps to organize for a trial:

The Presiding Officer of the trial takes the oath of office. The Constitution requires that Senators be "on Oath or Affirmation" when sitting for the purpose of trying an impeachment. The Senate developed the practice of first swearing in the presiding officer of the trial, who then administers the oath to all Senators.

In the case of a presidential impeachment, the Chief Justice acts as presiding officer. Impeachment Rule IV requires that notice be given to the Chief Justice of the time and place of the trial. It further provides that the Chief Justice is to be administered the oath by the "Presiding Officer of the Senate." The Chief Justice takes the same oath as the Senators (see below for text). Although the Vice President of the United States, as President of the Senate, could act as Presiding Officer of the Senate and administer the oath to the Chief Justice, in the Clinton impeachment trial, the President Pro Tempore of the Senate administered the oath to the Chief Justice. In the Clinton trial the Senate also agreed by unanimous consent that a bipartisan group of six Senators escort the Chief Justice to the dais.

Senators are administered the oath of office. The Presiding Officer of the Trial administers the following oath to Senators, as provided in Impeachment Rule XXV:

[Do you] solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of____, now pending, [you] will do impartial justice according to the Constitution and laws: So help [you] God.

In modern practice, the Chief Justice asks all Senators, who are standing at their desks, to raise their right hands as he reads the oath, and Senators respond, all together, "I do." Senators also sign an official oath book, which serves as the permanent record of the administration of the oath. Senators are required to take the oath before participating in the trial, and Senators who might be absent at the time the oath is administered en masse inform the presiding officer as soon as possible so that they can take the oath separately.

At this point, any Senator wishing to be excused from participating in the trial could ask to be excused from this service. In the past, the Senate has excused Senators from service in an impeachment trial only at their request.

The Senate issues a " s ummons" and request s an "answer" from the impeached official and a "replication" (or response) from the House Managers. It is a necessary early step of an impeachment trial that the impeached officer be informed of the charges through an official process. Impeachment Rule VIII states that after the articles have been presented and the Senate has organized for a trial, "â¦a writ of summons shall issue to the person impeachedâ¦" The Senate accomplishes this by agreeing to an "order," sometimes in the form of a resolution, directing that a summons be issued. Impeachment Rule XXV provides the language of the summons, which, in accordance with Rule VIII, includes the articles of impeachment.

The Senate, when it adopts an order for a summons, also directs the accused official to file a written answer to the articles of impeachment. The Senate determines the date by which this answer must be filed. Under long-standing practice, the Senate also sets a date by which the House Managers can file a formal written response to the impeached officer's answerâwhich is called a "replication"âwith the Senate. The length of time the Senate provides for the impeached officer to file an answer and for the House managers to file a replication has varied in modern practice, from a few days to several weeks.

An order or resolution regarding the summons and replication is not subject to debate, pursuant to Impeachment Rule XXIV, but is subject to amendment. The order or resolution can be approved by a majority of Senators voting, a quorum being present.

On the day that the Senate majority has established for the return of the summons, Impeachment Rule IX provides that the Senate convene the trial at 12:30 p.m. The officer who served the summons (typically the Sergeant at Arms under Impeachment Rule VI) swears an oath, administered by the Secretary of the Senate, that the service was performed.

Other administrative and organization al decisions. Impeachment Rule VII states that "The Presiding Officer of the Senate shall direct all necessary preparations in the Senate Chamber." Note that this is the regular presiding officer of the Senate, as these arrangements could be made in advance of the trial.

In practice, the Senate, through a unanimous consent agreement or a resolution, makes decisions regarding such matters as staff access to the floor and the placement of furniture and equipment in the well to be used for trial presentations. The Senate might take such actions in legislative session before the trial, or the actions could be taken shortly after the Senate convenes for the trial.

For example, in the Clinton impeachment trial, the Senate agreed to guidelines specifying which Senate staff with official impeachment duties would have access to the floor. It did so by unanimous consent in legislative session before the start of the trial. Additional unanimous consent agreements granted privileges of the floor to the counsel and assistants to counsel for the President, as well as to assistants to the Chief Justice and to the House Managers. The Senate also, by unanimous consent, established a method for allocating tickets to the Senate gallery.

Determining Trial Proceedings: Orders of the Senate

While the previously identified steps have occurred, with minor variations, in every Senate impeachment trial, actions subsequent to organization have varied considerably. To establish impeachment trial procedures, the Senate could reach unanimous consent agreements or vote on propositions offered by Senators, House Managers, or counsel for the impeached officer. When adopted, these procedural agreements are referred to as "orders" of the Senate. Impeachment Rule XXIV contains the provision that, when the Senate is convened to conduct a trial, "orders and decisions" of the Senate shall be voted on "without debate." This prohibition on debate applies when the Senate trial is meeting in open session; if a majority of Senators wished to discuss a proposed order, they could agree to do so in closed session, and in that forum each Senator would be limited to speaking only once, and for a maximum of 10 minutes. (See "Closed Deliberations by Senators" section below.) Furthermore, Impeachment Rule XXI provides further that "all preliminary or interlocutory questions, and all motions, shall be argued for not exceeding one hour (unless the Senate otherwise orders) on each side," which means that, in some cases, the Senate could hear arguments from House Managers and counsel for the impeached on procedural proposals for up to two hours.

In contrast, under the regular rules of the Senate, most matters are not subject to any debate restrictions. As a result, a cloture processârequiring the support of three-fifths of the Senate on legislation and most other itemsâis sometimes necessary to end debate and reach a vote. It is for this reason that the support of three-fifths of the Senate (or 60 Senators, assuming no more than one vacancy) is usually considered to be necessary for the Senate to reach a decision that cannot be reached by consensus.

The limits on debate when the Senate is sitting for an impeachment trial, however, allow the Senate to reach decisions without the threat of a filibuster. Without the need for cloture, most questions voted on during a Senate impeachment trial can be approved with the support of a majority of Senators voting. The major exception to this, of course, is that conviction requires the support of two-thirds of Senators present.

Because cloture is not required, a Senate majority can agree to orders that affect the proceedings in a trial. It is not clear, however, how quickly a majority could do so in the absence of broad agreement among Senators and the parties to the case. Orders proposed by Senators are subject to amendment offered by other Senators. For example, in the trial of Secretary of War William W. Belknap, Senators offered multiple amendments to a series of orders that the Senate considered. In a more recent example, during the Clinton impeachment trial, the Minority Leader offered two amendments to a resolution ( S.Res. 30 ) to establish trial procedures offered by the Majority Leader. (Both amendments, which attempted to shorten the trial, failed.) Senators cannot, in open session, debate amendments to orders proposed by Senators.

Furthermore, in past trials Senators have demanded the division of an "order," and the division of amendments to an order, that contained substantive, separate directions for a trial. Under regular Senate procedures, both amendments and resolutions containing separate provisions are susceptible to division. If any single Senator demanded a division, each provision would be considered separately for amendment and voted upon.

Finally, there is little guidance in Senate published precedents as to what constitutes a proper "order" that would be eligible to be called up expeditiously and decided by majority vote during an impeachment trial. The impeachment rules mention several rules that could be altered by an "order": the time the Senate meets for the first day of the trial (Rule XII), and other days of meeting thereafter (Rule XIII); the length of time for the House Managers and counsel for the impeached officer to argue propositions before the Senate (Rule XXI); the number of people who may make opening and closing arguments (Rule XXII); and who may serve a summons (Rule XXV). Impeachment Rule XXVI permits the Senate to adopt a non-debatable order to fix the date and time for considering articles, even if it had missed a previously scheduled meeting. Impeachment Rule XI, which, as noted above, the Senate approved in 1935 to allow the use of committees to receive evidence, also states such committees can be created by order.

The Senate, however, while sitting for an impeachment trial, has agreed to many other orders that are not directly mentioned in the impeachment rules. During the Clinton trial in the 106 th Congress, for example, the Senate agreed to S.Res. 16 and S.Res. 30 , which structured most aspects of proceedings by establishing deadlines for filings, allotting time for arguments, and making certain motions in order at specific points in the trial. If these resolutions constituted "orders" under Impeachment Rule XXIV, they were among the most comprehensive orders agreed to for a trial. Thus, based on Senate practice, it appears that "orders" of the Senate during impeachment trials can affect many more procedures than those specifically delineated in the impeachment rules. Senate precedents, however, might limit what can be included in such an order.

In the absence of broad agreement regarding how to proceed with a trial, Senators might contest the inclusion of particular provisions of an orderâfor example, those that appear to be in direct conflict with the impeachment rules or past practice, or those that Senators argue are unconstitutional. While Senators can be expected to consult the precedents for guidance, ultimately a Senate majority will decide these questions, using the process for interpreting procedures discussed below.

If all Senators are voting, the majority necessary to approve an order of the Senate is 51 Senators; tie votes fail in the Senate. If all Senators are not voting, however, this number changes. The vote necessary for approval is a majority of those voting, assuming a quorum is present. The quorum required for an impeachment trial is 51 Senatorsâthe same as in regular Senate proceedings. During impeachment trials, however, the party leaders often implore Senators to attend all sessions, and committee meetings are unlikely to be scheduled during times the Senate is expected to be sitting for the trial. This is due to past criticisms of the Senate for light attendance at trials when evidence was presented, including from counsel of impeached officers who feel Senators must be present to listen to arguments before they vote.

Consideration and Collection of Evidence

The actions taken by the Senate to consider and collect evidence in each trial have varied considerably. The impeachment rules provide guidance only on a few particulars, necessitating that the Senate determine, each time it organizes for a trial, the manner of proceeding from that point forward.

It is therefore not possible to describe, in the same manner as above, the parliamentary steps the Senate is expected to take to consider evidence in a trial. This section instead reviews the impeachment rules related to this stage of the trial, how these rules have been interpreted, and how their terms have been modified in past practice. Because in most modern trials the Senate has relied on a trial committee to consider and collect evidence, it then describes how these committees are established and some of their practices.

Opening and Closing Arguments by the House Managers and Counsel for the Impeached Officer

During an impeachment trial in the Senate, Senators spend most of the time listening to arguments presented by the House Managers and the counsel for the impeached officer. Impeachment Rule XV states that counsel for the parties "shall be admitted to appear and be heard upon an impeachment."

The impeachment rules further reference both opening and closing arguments that would be made by the parties to the case. Specifically, Impeachment Rule XXII states that the House of Representatives will provide opening remarks first, followed by the counsel for the impeached. It also provides that the case shall be opened "by one person" on each side, but in practice opening remarks have been divided among multiple managers and multiple counsel for the impeached.

With regard to closing arguments, Rule XXII provides that the House Managers will speak last, and permits two House Managers and two people for the impeached officer to make closing arguments. The number of individuals allowed to participate in closing arguments has been modified in past trials by order of the Senate.

The impeachment rules do not place a time limit on opening and closing statements, although in past trials the Senate has agreed to place such limits on the parties. The Senate has also allowed the side speaking first to reserve time for rebuttal.

Arguments by the House Managers and Counsel for the Impeached Officer on Questions and Motions

Impeachment Rule XXI limits the time for arguments that can be made during the trial on any "questions" or "motions" that might arise to one hour on each side, unless otherwise ordered by the Senate.

The impeachment rules provide no guidance regarding what particular questions or motions can be raised by the parties to the case. Rule XVI simply requires that all such motions (and "objections, requests, or applications") should be addressed to the Presiding Officer and put in writing if demanded by any Senator or the Presiding Officer. Examples of questions that have been argued pursuant to this rule include, from the 1868 trial of President Johnson, a motion by the defense that the trial be postponed for 40 days to allow for preparation of the answer to the articles of impeachment and, from the 1936 trial of Judge Ritter, a motion by the counsel for the impeached to strike an article deemed repetitive. In general, in past trials, the Senate has controlled, through the adoption of orders, what propositions can be placed before the body and voted on while it is sitting for an impeachment trial.

The impeachment rules do not address which side speaks first on questions and motions, but it is by practice the side proposing the motion. The Senate has altered the time available for such arguments by unanimous consent or other order of the Senate. The side speaking first has asked to reserve time for rebuttal.

It is important to note that there appears to be a distinction between motions filed and argued by the parties to the case in an impeachment trial, and motions offered by Senators. When House managers or counsel for an impeached officer propose a "motion," they are requesting that the Senate reach a judgement (perhaps by agreeing to an order on the subject). They are not necessarily forcing Senate action on their proposal as written. During an impeachment trial, the Senate, at least in modern practice, has generally controlled when and what motions are proposed before the full Senate by the parties to the case, and it also determines the method of responding to such motions (which might not be a direct vote on the question).

For example, in the 2010 trial of Judge Porteous, counsel for the impeached filed three motions that were argued by the parties to the case: a motion to dismiss Article 1, a motion to dismiss Article 2, and a motion to dismiss all articles because they aggregated multiple charges. The Senate heard arguments from each side (pursuant to a unanimous consent agreement that limited arguments on all motions to two hours, equally divided) and deliberated in closed session. When the Senate reconvened in open session, rather than act directly on the propositions as presented, the Majority Leader moved to hold preliminary votes on individual allegations within the articles. This motion was defeated 94-0. Effectively, it served as a response to the three motions filed by the defense and argued by the parties to the case.

In another modern example, the Senate heard arguments by the parties, under the terms of a unanimous consent agreement, regarding a motion by the impeached officer that Impeachment Rule XI, allowing the creation of a trial committee, was unconstitutional and that there be a full and free trial before the Senate and witnesses be subpoenaed for that purpose. After deliberating in closed session, the Senate returned to open session and the Majority Leader moved that the Senate not hear additional witnesses in the case. The motion was agreed to 61-32 (7 Senators not voting), and served as a response to the arguments by counsel for the impeached officer that the full Senate, not the trial committee, should receive evidence.

Motions or Orders Offered by Senators Are Not Debatable in Open Session and Are Acted upon Without Objection or by the Yeas and the Nays

Impeachment Rule XXIV refers to "orders and decisions" of the Senate, which in practice have been proposed by Senators, not by the parties to the case. As discussed above, such "orders" are sometimes offered in the form of resolutions. In impeachment trials, however, it appears that such resolutions were proposed as if they were motions and were not subject to layover requirements, or taken up by a motion to proceed, which is the usual way that the Senate would process a resolution. Impeachment Rule XIX requires any motion or order proposed by a Senator (except a motion to adjourn) be in writing and put by the Presiding Officer.

Impeachment Rule XXIV prohibits debate on orders of the Senate in open session, but the Senate could vote to go into closed session, in which case each Senator could speak for up to 10 minutes on the motion or order. Impeachment Rule XXIV also provides that orders of the Senate can be agreed to by unanimous consent but, short of unanimous consent, the vote on an order must be by the yeas and the nays (a roll call vote). An exception is made for the motion to adjourn, which could be voted on by voice vote or division (or if the yeas and nays are ordered, by roll call vote, as under regular Senate procedures).

Otherwise, the impeachment rules do not reference proposals offered by Senators. In the 19 th and early 20 th century trials, it appears that a variety of propositions regarding procedure were proposed by Senators. In the modern trials, some motions were permitted pursuant to a previously-agreed-to resolution, or under the terms of a unanimous consent agreement. For example, in the 1999 trial of President Clinton, a Senator offered a motion to dismiss the articles that was permitted under the terms of S.Res. 16 . Similarly, later in the same trial, the Minority Leader offered a motion that the Senate proceed to closing arguments, and this motion appears to have been permitted under the terms of S.Res. 30 .

In other modern instances, however, Senators appear to have offered motions that were not explicitly allowed under a previous order and presumably were permitted by the standing impeachment rules and precedents. For example, during the trial of President Clinton, a Senator moved that Senators be permitted to insert statements they made in the closed session into the Congressional Record . In another example, during the 1986 trial of Judge Harry Claiborne, a Senator moved to postpone the decision on motions filed by the defendant. It is also possible that such motions were effectively offered by a kind of tacit unanimous consent, and if any Senator had objected, they could not have been considered. Unanimous consent cannot always be required for a Senator to propose a motion or order, however, as that would allow a single Senator to block procedural decisions. Neither the impeachment rules nor the published precedents provide explicit guidance on what propositions can be offered by Senators while sitting on an impeachment trial. There is also no guidance regarding precedence among the various motions, although the Senate precedents establishing that the Majority Leader is entitled to priority in recognition, followed by the Minority Leader, presumably continue to apply in an impeachment trial.

Still other motions have been offered pursuant to the regular standing rules of the Senate. In 1999, for example, several Senators moved to suspend certain impeachment rules (to allow for unlimited debate on questions in open session). To suspend the rules, Senators must provide one calendar day's notice in writing of their intent to offer a motion to suspend. Adoption of such a motion requires a two-thirds affirmative vote. During the Clinton trial, the Senate considered motions to suspend under the terms of a unanimous consent agreement or a resolution, and it is not entirely clear from the proceedings or published precedents when such motions would otherwise be in order.

The impeachment rules contain little guidance in relation to the calling and questioning of witnesses. Impeachment Rule XVII states that witnesses shall be examined first by the side who requested them, and then cross-examined by the other side. It also specifies that only one person from each side shall conduct the examination and cross-examination. Witnesses are also required to be sworn by the Secretary of the Senate or other authorized person, in a form provided by Senate Rule XXV:

"You, ______, do swear (or affirm, as the case may be) that the evidence you shall give in the case now pending between the United States and ______, shall be the truth, the whole truth, and nothing but the truth, so help you God."

Impeachment Rule VI is intended to grant the Senate the ability to compel the attendance of witnesses (and, more generally, to enforce any "orders, mandates, writs, precepts, and judgments" deemed "essential or conducive to the ends of justice"). In modern practice, the Senate has relied on the other branches of government to enforce its subpoenas, as discussed in detail in other CRS reports. For example, in the 1989 trial of Judge Alcee Hastings, when a key witness refused to testify, the Senate in legislative session took up and approved by unanimous consent a resolution directing the Senate Legal Counsel to bring a civil action to enforce the subpoena. Senate Legal Counsel obtained an order from the U.S. District Court for the District of Columbia directing the witness to testify, and when the witness continued to refuse to do so, he was incarcerated until the end of the trial.

The Senate impeachment rules do not address the selection of witnesses. In practice, the Senate determines which witnesses will be heard, if any. (If a trial committee is used, the trial committee selects and subpoenas the witnesses.) The parties to the case do not have the right under the rules to call whom they choose. To be clear, it is the House Managers and counsel for the impeached who know the charges and know what evidence they would like to present, and, in practice, the Senate weighs their requests heavily. In some recent trials, the Senate has requested pretrial statements or trial memoranda from both parties, which discuss possible evidence to be presented, including desired witnesses. On the basis of such requests, the Senate (or the trial committee) decides which witnesses to hear and possibly subpoena.

In the modern judicial trials, witnesses were examined in the trial committees, and not on the floor before the full Senate. In the Clinton trial in 1999, the Senate agreed to an order that depositions from three witnesses be taken, but did not agree to hear testimony from any witness on the floor. The last time witnesses were examined and cross-examined on the Senate floor was during the impeachment trial of Judge Ritter in 1936.

During the presentation of evidence by the House Managers and counsel for the impeached officer, Senators are generally expected to attend, but not speak. Impeachment Rule XIX, however, does allow a Senator to question a witness, manager, or counsel of the person impeached. The Senator must put the question in writing and submit it to the Presiding Officer, who then reads the question out loud. In practice, the Presiding Officer identifies the Senator posing the question before reading it.

As noted, witnesses have not testified before the full Senate since the 1936 trial of Judge Ritter, so there are no modern examples to look to concerning Senators questioning witnesses on the floor. In trial committees, Senators have submitted questions for witnesses. In addition, resolutions establishing trial committees have explicitly authorized the chair of the trial committee to "waive the requirementâ¦that questions by a Senator to a witness, a manager, or counsel shall be reduced to writing and put by the presiding officer."

In modern trials, Senators have posed questions to House managers and counsel for the impeached. In the 1999 trial of President Clinton, the Senate agreed to a resolution ( S.Res. 16 , 106 th Congress) that established procedures in addition to the impeachment rules to structure a period of questioning by Senators. S.Res. 16 provided that after opening arguments by the House Managers and the President's counsel, "Senators may question the parties for a period of time not to exceed 16 hours." During the Clinton trial, Senators directed their questions to one side or the other, and the party leaders asked that questions be submitted to them first, so that they could identify duplications and structure the order of questions (which alternated between Republican and Democratic Senators' questions). The Chief Justice announced that he thought five minutes would be a sufficient time to answer each question, and an effort was made to keep the time used by each side roughly equal. Over 100 questions were posed by Senators over the course of two days.

In other modern trials, Senators asked questions of the House Managers and counsel for the accused on the floor, apparently without a unanimous consent agreement or other order of the Senate structuring the questioning process. During the 2010 trial of Judge Porteous, for example, after the trial committee had issued its report, the Senate agreed by unanimous consent to limit the time for arguments on all motions filed by Judge Porteous to one hour for each side, and to limit the time for final arguments on all four articles of impeachment to one and a half hours for each side. The agreement did not explicitly address time for questions. Senators, during the arguments, sent questions in writing to the Presiding Officer, who asked the clerk to read them at a time deemed appropriate, including after the expiration of the time limits set by unanimous consent. In this trial, Senators' questions were sometimes directed to both sides.

Impeachment Rule XI allows for the appointment of a trial committee of Senators to receive evidence and take testimony on behalf of the Senate for an impeachment. Rule XI does not contain language explicitly limiting the application of trial committees; however, the 1974 Rules and Administration Committee report regarding amendments to the impeachment rules stated that, "nothing but action by the full Senate on all aspects of a presidential impeachment was conceivable" and that the legislative history to the proposed amendments should "clearly reflect" this understanding by members of the Committee. The Senate has chosen to appoint trial committees for every modern impeachment of a judge since the 1980s.

Trial committees serve to relieve the full Senate of the potentially lengthy process of these early trial tasks and instead devote time to its legislative workload. Transcripts of all proceedings conducted and evidence received by the trial committee are transmitted to the full Senate when the committee's work is completed. This material provides a potential opportunity to move quickly to closing arguments and deliberation on the final question of whether an impeached officer is guilty or not guilty.

Trial committees are typically created by a simple resolution that authorizes the majority and minority leaders to each recommend six Senators, including, more recently, a chair and vice chair, respectively. Impeachment Rule XI does not fix the membership or size of a trial committee, nor does it require party balance; in modern practice, however, the Senate has routinely agreed to a bipartisan 12-member committee. Resolutions creating trial committees also typically include a funding provision, and may authorize a committee to waive certain impeachment rules, direct a committee on what it should report to the Senate, or establish a date at which the committee will terminate.

In addition to receiving evidence and testimony, trial committees can reach decisions concerning certain pre-trial requests and motions filed by the parties to the case, and they can question witnesses. Trial committees process motions filed by House Managers in a fashion similar to that which the Senate would use when sitting as a court of impeachment. The committee holds a hearing to receive oral arguments from the trial parties, allots time for questioning by committee members, deliberates in closed session, and ultimately votes to make a determination in relation to the request. Modern trial committees have routinely declined to consider motions to dismiss an article or articles of impeachment, citing a lack of authority to do so. Trial committees also have examined witnesses called by House managers and counsel to the accused. Typically, a witness is first examined by the trial parties, after which committee members have been able to ask their own questions. Under the impeachment rules, questions by Senators are to be submitted in writing, although the Senate has waived this rule to allow for direct questioning by Senators in trial committees.

Once a trial committee has completed its work, as previously discussed, it will issue a report to the Senate compiling all evidence, exhibits, and witness testimony it received. That material is considered as having been received and taken before the full Senate for the purposes of delivering a final vote on articles of impeachment. The trial committee's work does not preclude the Senate itself from calling additional witnesses, hearing further testimony, or revisiting motions raised by House managers and counsel for the accused. The full Senate did not choose to hear witnesses or request any further evidence in any of the four completed trials in which a committee was used.

Closed door deliberation by the Senate while sitting for an impeachment trial is established through Impeachment Rules XX and XXIV. Rule XX states that a Senate impeachment trial is to be conducted in open session, except for when the doors shall be closed for deliberation. A motion to go into closed door session can be acted upon without objection, or if an objection is raised, by a roll call vote without debate. Note that this method of entering closed session when the Senate is sitting for an impeachment trialâapproving a motion by majority voteâis different from the method used during regular Senate session. Outside of an impeachment trial, a single Senator can move that the Senate go into closed session, and, if the motion is seconded by another Senator, the Senate will proceed to secret session.

Rule XXIV specifies, in part, that during closed door deliberations, each Senator may speak only once on each question. Such remarks are limited to 10 minutes per Senator on "interlocutory" questions and to 15 minutes on "the final question," (i.e., whether the impeached officer is guilty or not guilty), regardless of the number of articles of impeachment. In other words, in the final debate, regardless of whether the Senate is considering one article of impeachment or many, each Senator has only one opportunity to speak for no more than 15 minutes.

When the Senate enters a closed session, the specific procedures followed are guided by the Senate's standing rules, rather than its impeachment rules. The Sergeant at Arms clears the chamber and galleries of everyone except for Senators and staff designated under Senate Rule XXIX, paragraph 2, who are sworn to secrecy. The Senate rule further provides access for the Senate Secretary, the Assistant Secretary, the Principal Legislative Clerk, the Parliamentarian, the Executive Clerk, the Minute and Journal Clerk, the Sergeant at Arms, and the Secretaries to the Majority and Minority, as well as other individuals the Presiding Officer "shall think necessary." During impeachment trials, the Senate has, in practice, extended floor privileges in closed session to additional designated staff by unanimous consent agreement.

A record of closed session deliberations is kept, as with all proceedings of impeachment trials, pursuant to Impeachment Rule XIV. Unlike open session records, which are made available to the public, closed session transcripts are kept under an injunction of secrecy unless lifted by the Senate by resolution or unanimous consent. Accordingly, Senators and staff are expected to refrain from public discussion of closed door deliberations. Senate Standing Rule XXIX, paragraph 5, provides for possible expulsion from the Senate (if a Senator) or dismissal from service (if an officer or employee) as punishment for divulging closed door proceedings. In recent Senate impeachment trials, the Senate has allowed Senators to insert their closed session remarks into the Congressional Record .

As mentioned above, in the 1999 trial of President Clinton, Senators attempted to allow for open deliberation and debate in an impeachment trial by moving to suspend the impeachment rules. No such proposals were agreed to by the Senate during the Clinton trial, and all deliberation throughout the trial occurred in closed sessions.

Conviction requires a guilty vote on at least one article of impeachment by two-thirds of Senators present. Assuming 100 Senators present, the support of 67 Senators is needed to convict on an article. If fewer Senators are present, the threshold to convict will accordingly be reduced as well (e.g., 97 Senators present would require 65 votes to convict). A response of "present" effectively supports acquittal, as it counts in the denominator against which the threshold to convict is calculated.

Following closed door deliberations on the final question of whether to convict or acquit an impeached officer, the Senate reconvenes in open session to vote on the articles of impeachment. Articles are typically voted on in the order they were exhibited by House Managers. It is not in order to further divide an article.

Pursuant to Impeachment Rule XXIII, the Presiding Officer puts the question on each article separately, and each vote is required to be by roll call. The legislative clerk is directed to read the article of impeachment aloud and then the roll is called, to which Senators must rise from their seats and answer "guilty" or "not guilty" on the question of impeachment. Voting on the articles of impeachment is to continue without interruption, pursuant to Rule XXII, unless the Senate adjourns the trial. After voting has commenced, adjournments of the trial can be for only one day, or sine die , that is, without a specific date to return, if ever. Under the rule, a motion to reconsider a vote on an article of impeachment is not in order.

Under Senate Standing Rule XII, Senators are required to vote upon call of their name unless excused by the Senate or due to a conflict of interest. The question of excusing a Senator from voting is disposed of after the call of the roll is completed but before the result is announced. Senators have been excused from voting on articles of impeachment in past trials due to their absences from arguments or owing to their participation as a witness in the trial. (Senators have also been excused from participating in the trial at all; see above "Organizing for the Trial.")

If an officer is convicted by two-thirds of Senators present, "such a vote operates automatically and instantaneously to separate the person impeached from office." The Senate may then choose to take the additional action to move to disqualify a convicted officer from holding further office, although this step is not required. The Senate has established that a vote to disqualify requires a simple majority voting affirmatively, and not two-thirds as with conviction.

Senate Interpretation of the Impeachment Rules and the Role of the Presiding Officer

The Presiding Officer of an impeachment trial does not possess any more independent control over proceedings than the Presiding Officer does during the more common Senate deliberations on legislation or nominations. While the Presiding Officer, in either case, may rule on the proper interpretation of the rules and procedures of the Senate, that ruling can be challenged by any Senator. In legislative or executive sessions of the Senate, if any Senator appeals a ruling by the Presiding Officer, the full Senate considers the question, "Shall the decision of the Chair stand as the judgment of the Senate?"

Impeachment Rule VII lays out the process of challenging a ruling as it applies during an impeachment trial. It states in part

And the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless some Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision without debate; or he may at his option, in the first instance, submit any such question to a vote of the Members of the Senate.

In other words, while the impeachment rules grant the Presiding Officer the authority to rule on questions, they also state that a single Senator could instead request that the full Senate vote on any such question. In that case, pursuant to this rule, the question is not debatable, and a majority of Senators voting would determine the outcome. (By precedent, House Managers or counsel for the impeached could not ask that a question be submitted to the Senate. ) The published precedents state that all decisions of the Chair are subject to appeal.

If a ruling concerning the admissibility of evidence is appealed (or if the Presiding Officer submits such a question), the question put to the Senate is: "Is the evidence admissible?" In the case of other procedural issues the Senate would vote on, the phrasing of the question put to the Senate could vary with the question. For example, in 1986, during the trial of Judge Claiborne, the Presiding Officer ruled, in response to a motion by the defense counsel and at the request of the Majority Leader, "It is the Chair's determination that the question of standard of evidence is for each Senator to decide individually when voting on Articles of Impeachment." A Senator requested that the Senate vote on the question instead, and the Presiding Officer put the question on whether the motion of the counsel for the impeached judgeâthat the Senate establish a "beyond a reasonable doubt" standard of proof in the trialâwas "well taken." By a vote of 17 yeas and 75 nays (8 Senators not voting), the Senate voted that the motion was not well taken, effectively agreeing with the ruling of the Presiding Officer.

The Senate, in short, is the final arbiter on any procedural questions. Impeachment Rule VII states that "the vote shall be taken in accordance with the Standing Rules of the Senate." That means these questions could be settled by roll call vote, but only if that request for the yeas and nays is supported by 1/5 of a quorum (11 Senators), or, if the Senate recently voted, 1/5 of the Senators who voted.

The impeachment rules make several other references to the Presiding Officer of the trial. Impeachment Rule IV restates the constitutional requirement that when the President of the United States has been impeached, the Chief Justice of the United States shall serve as the Presiding Officer. Impeachment Rule III tasks the Presiding Officer with administering the oath to Senators. Rule V grants him general power to execute decisions of the Senate where necessary (which would include, for example, signing a summons the Senate ordered to be issued to the person impeached, or signing a subpoena that the Senate had agreed to issue). Rule XIII directs the Presiding Officer to cause the proclamation to be declared at the start of each day commanding those present to keep silent. Rule XVI requires that the parties to the caseâthe House Managers and the impeached officer and his counselâaddress the Presiding Officer when proposing motions, objecting to proceedings, or making any request related to the trial. As mentioned above, Rule XIX requires the Presiding Officer to read aloud any question submitted in writing by a Senator. The Presiding Officer also puts the question on the vote on the articles of impeachment, pursuant to Rule XXIII and as described above.

The Presiding Officer of the trial can vote when he or she is a Senator. If the Vice President is presiding over a trial, and if there is a tie vote, then the Vice President may vote. In presidential impeachment trials, however, the Vice President cannot preside and cannot vote. The Chief Justice, when presiding over an impeachment trial, would not be expected to vote, even in the case of a tie. If a vote on a question results in a tie, the question is decided in the negative.

Conducting Legislative and Executive Business

When the Senate convenes as a Court of Impeachment, it is in a distinct procedural mode, different from legislation session, where it considers bills and resolutions, and executive session, where it considers treaties and nominations. In addition to having its own set of rules, the Court of Impeachment also keeps a separate Journal. (The Journal is the Constitutionally-required record of parliamentary actions taken by the Senate.) Business in these distinct procedural modes is kept entirely separate. For example, bills and resolutions cannot be introduced when the Senate is in the mode of sitting for the trial, and committee reports cannot be filed. This might mean that the Senate chooses to spend some period of a day meeting in legislative or executive session and also spend a period meeting as Court of Impeachment, in order to provide an opportunity for other actions to occur.

For some legislative actions, unanimous consent may effectively be required. Notably, the Senate must have a period for "morning business" in legislative session for various actions to occurâincluding the introduction of legislation and the filing of committee reports. In modern practice, this is provided for in unanimous consent agreements for each day the Senate meets. The Senate would need to reach a similar unanimous consent agreement for legislative sessions held on days during the trial in order for these actions to be allowed. Alternatively, the Senate could agree by unanimous consent to arrange other methods for these actions to occur, even though the Senate has not met that day in legislative session.

The impeachment rules provide for the Senate to convene for an impeachment trial at noon (Rule XIII) every day except Sunday after a trial has begun (Rule III). While this might have been the expected schedule in the middle of the 19 th century, the impeachment rules also provide for the Senate to modify this schedule by "order." In modern practice, the Senate has adjusted the meeting days and times. Most often, the Senate agreed by unanimous consent to the time of the next meeting. Alternatively, a motion to adjourn the Senate sitting in a trial of impeachment to a time certain is subject to amendment, but it is not debatable and could be agreed to by majority vote. The Senate also could agree to an order altering the default time for the Senate to sit for the trial each day, and this order would not be subject to debate. In short, a numerical majority can determine the day and times of meeting for an impeachment trial.

Impeachment Rule XIII also provides that, when the trial adjourns, the Senate resumes consideration of legislative (or executive) business. The Rule states, "(t)he adjournment of the Senate sitting in said trial shall not operate as an adjournment of the Senate." As a result, it is possible for the Senate to convene to conduct business in legislative (or executive) session before noon, convene the trial at noon pursuant to the rules (or at some other time if decided by the Senate), adjourn the impeachment trial for the day and return to legislative (or executive) session to conduct more business. The Senate could also meet for other purposes on days the Senate is not meeting for the trial.

In the modern judicial trials and during the Clinton trial, the Senate did conduct other business on some of the days on which it also considered articles of impeachment. Limited legislative business was accomplished during the six weeks of the Clinton trial, but that trial occurred at the very start of the 106 th Congress (1999-2000), while committees were still organizing and legislation may have still been developing. Other factors could certainly affect the ability of the Senate to approve legislation while a trial is being conducted. Bipartisan support is generally necessary to take up most legislation in the Senate, and forming such coalitions could be challenging if the impeachment proceedings are contentious. The attention of Senators and their staff might also be expected to be directed toward impeachment proceedings.

In addition, it is not clear how some procedures that apply to the consideration of legislation and nominations in the Senate are impacted when the Senate sits for an impeachment trial. For example, if cloture was filed on a matter in legislative session, and the Senate was sitting in trial when the cloture motion matured, it is not clear if the Senate would vote on the cloture motion at that time, or instead not until it adjourned the trial for the day. It is also not clear how legislation to be considered under expedited procedure statutes, such as the Congressional Review Act, the War Powers Resolution, or the Trade Act (each of which provide for specific Senate actions at times certain) could be impacted by a Senate trial.