PROCEDURAL PRECEDENTS IN IMPEACHMENT TRIALS
IV. SEQUENCE OF EVENTS AT THE BEGINNING OF A TRIAL \1\
1. First a Message(s) From the House of Representatives Is Received
Containing the Information that the House Has Voted Impeachment,
Adopted Articles, and Appointed Managers. The Senate Then Adopts an
Order Informing the House When It Is Ready To Receive the Managers To
Present the Articles of Impeachment
The procedures utilized by the House of Representatives in
voting impeachment and adopting articles of impeachment have
varied particularly as to time sequence,\1\ and this of
necessity has forced the Senate to vary in its preliminaries to
getting an impeachment trial underway. However, the general
procedure utilized by the Senate is illustrated below from the
selected cases of the trial of Judge Halsted L. Ritter, Judge
Harold Louderback, and President Andrew Johnson.
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\1\ These steps basically follow the Ritter trial in 1936, but
exceptions and collaborating information are also included in order to
make it a general guide for any impeachment trial.
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[The various procedures utilized by the House of
Representatives in voting impeachment are illustrated by the
following:
Trial of Halsted L. Ritter
On Monday, March 2, 1936, Mr. Sumners of Texas, by
direction of the Committee on the Judiciary, called up the
following privileged resolution (H. Res. 422):
Resolved, That Halsted L. Ritter, who is a United
States district judge for the southern district of
Florida, be impeached for misbehavior, and for high
crimes and misdemeanors; and that the evidence
heretofore taken by the subcommittee of the Committee
on the Judiciary of the House of Representatives under
House Resolution 163 of the Seventy-third Congress
sustains articles of impeachment, which are hereinafter
set out; and that the said articles be, and they are
hereby, adopted by the House of Representatives, and
that the same shall be exhibited to the Senate in the
following words and figures, to wit:
Articles of impeachment of the House of
Representatives of the United States of America in the
name of themselves and of all of the people of the
United States of America against Halsted L. Ritter, who
was appointed, duly qualified, and commissioned to
serve, during good behavior in office, as United States
district judge for the southern district of Florida, on
February 15, 1929. . . . (March 2, 1936, 74-2, House
Journal, p. 193.)
The articles of impeachment followed in the body of the
resolution, and a single vote was taken on the question of both
impeachment and adoption of the articles.
This procedure in the House of Representatives for
impeaching and adopting the articles of impeachment in a single
resolution has been used since 1904 (see the case of Harold
Louderback, February 24, 1933, 72-2, House Journal, p. 303; the
case of George W. English, March 30, 1926, 69-1, House Journal,
p. 434, in which a separate vote on article 1 of the articles,
of impeachment was obtained; and the case of Robert W.
Archbald, July 11, 1912, 62-2, House Journal, p. 854).
Prior to 1904, the impeachment process and their drafting
of articles of impeachment and their adoption were all separate
procedures.
In the case of William Blount, the House voted a resolution
of impeachment on July 7, 1797 (July 7, 1797, 5-1, House
Journal, p. 72). The committee to draft articles of impeachment
was appointed the following day, July 8, 1797 (July 8, 1797, 5-
1, House Journal, p. 96), and the articles of impeachment were
agreed to January 29, 1798 (January 29, 1798, 5-2, House
Journal, pp. 151-53). In the case of John Pickering, the House
voted a resolution of impeachment on March 3, 1803 (March 3,
1803, 7-2, House Journal, p. 383). The committee was appointed
to prepare articles of impeachment on October 20, 1803 (October
20, 1803, 8-1, House Journal, p. 411), and the articles of
impeachment were agreed to December 30, 1803 (December 30,
1803, 8-1, House Journal, pp. 507-09). In the case of Samuel
Chase, the House voted its resolution of impeachment on March
12, 1804 (March 12, 1804, 8-1, House Journal, p. 643). The
committee was appointed to draft articles of impeachment on
March 13, 1804 (March 13, 1804, 8-1, House Journal, p. 645),
and the articles were agreed to December 4, 1804 (December 4,
1804, 8-2, House Journal, pp. 34-43). The resolution of
impeachment of James H. Peck was voted in the House of
Representatives April 24, 1830, and on the same day a committee
was appointed to draft articles of impeachment (April 24, 1830,
21-1, House Journal, p. 565). The articles of impeachment were
adopted May 1, 1830 (May 1, 1830, 21-1, House Journal, p. 592).
The impeachment resolution of West H. Humphreys was agreed to
May 6, 1862 (May 6, 1862, 37-2, House Journal, p. 646). The
committee was appointed to prepare articles on May 14, 1862
(May 14, 1862, 37-2, House Journal, p. 684), and the articles
of impeachment were agreed to on May 19, 1862 (May 19, 1862,
37-2, House Journal, p. 712). In the case of President Andrew
Johnson, the House voted the resolution of impeachment February
24, 1868 (February 24, 1868, 40-2, House Journal, p. 392). The
committee to draft articles of impeachment was appointed the
same day (February 24, 1868, 40-2, House Journal, p. 393). The
articles of impeachment were agreed to on March 2, 1868 (March
2, 1868, 40-2, House Journal, pp. 440-51). In the case of
William W. Belknap, the resolution was voted in the House on
March 2, 1876 (March 2, 1876, 44-1, House Journal, p. 496). The
committee was appointed the same day (March 2, 1876, 44-1,
House Journal, p. 496), and the articles of impeachment were
agreed to April 3, 1876 (April 3, 1876, 44-1, House Journal,
pp. 726-33). In the impeachment of Charles Swayne, a resolution
of impeachment was agreed to in the House December 12, 1904
(December 12, 1904, 58-3, House Journal, p. 51). The committee
to draft the articles was appointed the same day (December 12,
1904, 58-3, House Journal, p. 51). The articles of impeachment
were agreed to January 18, 1905 (January 18, 1905, 58-3, House
Journal, pp. 158-62).]
On Monday, March 9, 1936 (Legislative day of Monday,
February 24, 1936), following the approval of the Journal, a
message from the House of Representatives, by Mr. Haltigan, one
of its readingclerks, informed the Senate that the House had
impeached for high crimes and misdemeanors Halsted L. Ritter, United
States district judge for the southern district of Florida, and that
the House had adopted articles of impeachment against said Halsted L.
Ritter, judge as aforesaid, which the managers on the part of the House
had been directed to carry to the Senate, and that Hatton W. Sumners,
Randolph Perkins, and Sam Hobbs, Members of the House, had been
appointed such managers.\2\
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\2\ March 9, 1936, 74-2, Journal, p. 473.
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The message, subsequently that day, was laid before the
Senate by the Presiding Officer and an order was immediately
adopted to inform the House that the Senate would receive
managers at 1:00 p.m. on the following day to exhibit the
articles of impeachment as follows:
Ordered, That the Secretary inform the House of
Representatives that the Senate is ready to receive the
managers appointed by the House for the purpose of
exhibiting articles of impeachment against Halsted L.
Ritter, United States district judge for the southern
district of Florida, agreeably to the notice
communicated to the Senate, and that at the hour of 1
o'clock p.m. on Tuesday, March 10, 1936, the Senate
will receive the honorable managers on the part of the
House of Representatives, in order that they may
present and exhibit the said articles of impeachment
against the said Halsted L. Ritter, United States
district judge for the southern district of Florida.\3\
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\3\ Senate Journal, 74-2, March 9, 1936, p. 473.
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Trial of Harold Louderback
On Tuesday, February 28, 1933, during the consideration of
a conference report, the following message from the House of
Representatives was received:
Mr. President: The House of Representatives has
passed the following resolution (H. Res. 403), which I
am directed to communicate to the Senate:
Resolved, That a message be sent to the Senate to
inform them that this House has impeached Harold
Louderback, United States district judge for the
northern district of California, for misdemeanors in
office, and that the House has adopted articles of
impeachment against said Harold Louderback, judge as a
foresaid, which the managers on the part of the House
have been directed to carry to the Senate, and that
Hatton W. Sumners, Gordon Browning, Malcolm C. Tarver,
Fiorello H. LaGuardia, and Charles I. Sparks, Members
of this House, have been appointed such managers.\4\
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\4\ February 28, 1933, 72-2, Journal, p. 299.
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Shortly after the message was received, the matter being
laid before the Senate, an order was adopted to inform the
House of Representatives that the Senate was ready to receive
the managers to exhibit the articles of impeachment as follows:
Ordered, That the Secretary inform the House of
Representatives that the Senate is ready to receive the
managers appointed by the House for the purpose of
exhibiting articles of impeachment against Harold
Louderback, United States district judge for the
northern district of California, agreeably to the
notice communicated to the Senate.\5\
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\5\ February 28, 1933, 72-2, Senate Journal, p. 299.
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Trial of Andrew Johnson
On Tuesday, February 25, 1868, during the morning business,
the Senate received the following message from the House of
Representatives:
Mr. President: The House of Representatives has
passed the following resolution, which I am directed to
communicate to the Senate:
Resolved, That a committee of two be appointed to go
to the Senate, and, at the bar thereof, in the name of
the House of Representatives and of all the people of
the United States, to impeach Andrew Johnson, President
of the United States, of high crimes and misdemeanors
in office, and acquaint the Senate that the House of
Representatives will, in due time, exhibit particular
articles of impeachment against him, and make good the
same; and that the committee do demand that the Senate
take order for the appearance of said Andrew Johnson to
answer to said impeachment.
Ordered, That Mr. Thaddeus Stevens and Mr. John A.
Bingham be appointed to such committee.5a
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\5a\ February 25, 1868, 40-2, Senate Journal, p. 217.
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At this point the Senate continued with legislative
business and while a Senator was addressing the Chair, the
Sergeant at Arms announced a committee from the House of
Representatives, Mr. Thaddeus Stevens and Mr. John A. Bingham,
who appeared at the bar of the Senate and delivered the
following message:
Mr. President: By order of the House of
Representatives we appear at the bar of the Senate, and
in the name of the House of Representatives, and of all
the people of the United States, we do impeach Andrew
Johnson, President of the United States, of high crimes
and misdemeanors in office; and we do further inform
the Senate that the House of Representatives will, in
due time, exhibit particular articles of impeachment
against him, and make good the same; and in their name
we do demand that the Senate take order for the
appearance of the said Andrew Johnson to answer to said
impeachment.
The President of the Senate pro tempore replied that the Senate
would take order in the premises, and the committee
withdrew.\6\
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\6\ February 25, 1868, 40-2, Journal, p. 217.
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The above message was referred to a select committee which
made a report on the following day, immediately after which the
Senate adopted the following order making ready for receiving
the articles of impeachment:
Whereas the House of Representatives on the twenty-
fifth day of the present month, by two of their
members, Messrs. Thaddeus Stevens and John A. Bingham,
at the bar of the Senate, impeached Andrew Johnson,
President of the United States, of high crimes and
misdemeanors in office; and informed the Senate that
the House of Representatives will, indue time, exhibit
particular articles of impeachment against him, and make good the same;
and likewise demanded that the Senate take order for the appearance of
said Andrew Johnson to answer to the said impeachment: Therefore,
Resolved, That the Senate will take proper order thereon,
of which due notice shall be given to the House of
Representatives.\7\
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\7\ February 26, 1868, 40-2, Senate Journal, p. 794.
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There were slight variations from the above procedures in
some of the other impeachment trials held by the Senate as set
forth below.
[Briefly, the procedure for each of the other cases
follows:
Trial of George W. English
On Tuesday, April 6, 1926 (Legislative day of April 5,
1926), during the consideration of a resolution declaring
Daniel F. Steck to be the duly elected Senator from the State
of Iowa, the following message from the House was received:
Mr. President: The House of Representatives has
passed the following resolution, which I am directed to
communicate to the Senate:
Resolved, That a message be sent to the Senate to
inform them that this House has impeached George W.
English, United States district judge for the Eastern
District of Illinois, for misdemeanors in office, and
that the House has adopted articles of impeachment
against said George W. English, judge as aforesaid,
which the managers on the part of the House have been
directed to carry to the Senate, and that Earl C.
Michener, W. D. Boies, Ira G. Gersey, C. Ellis Moore,
George R. Stobbs, Hatton W. Sumners, Andrew J.
Montague, John N. Tilman, and Fred H. Dominick, Members
of this House, have been appointed such managers.
(April 5, 1926, 69-1, Journal, p. 268.)
Trial of Robert W. Archbald
On Saturday, July 13, 1912 (Legislative day of July 6,
1912), during the morning business, the Senate received the
following message from the Chief Clerk of the House:
Mr. President: The House of Representatives has
passed the following resolution, which I am directed to
communicate to the Senate:
Resolved, That a message be sent to the Senate to
inform them that this House has impeached, for high
crimes and misdemeanors, Robert W. Archbald, circuit
judge of the United States Commerce Court, and that the
House adopted articles of impeachment against said
Robert W. Archbald, judge as aforesaid, which the
managers on the part of the House have been directed to
carry to the Senate, and that Henry D. Clayton, of
Alabama; Edwin Y. Webb, of North Carolina, John C.
Floyd, of Arkansas; John W. Davis of West Virginia;
John A. Sterling, of Illinois; Paul Howland, of Ohio;
and George W. Norris, of Nebraska, Members of this
House, have been appointed such managers.
(July 6, 1912, 62-2, Journal, p. 452.)
Trial of Charles Swayne
On Wednesday, December 14, 1904, after consideration of
bills on the Calendar under Rule VIII, the Senate received the
following message from the House:
Mr. President: The House of Representatives has
passed the following resolution, which I am directed to
communicate to the Senate:
Resolved, That a committee of five be appointed to go
to the Senate and, at the bar thereof, in the name of
the House of Representatives and of all the people of
the United States, to impeach Charles Swayne, judge of
the district court of the United States for the
northern district of Florida, of high crimes and
misdemeanors in office, and to acquaint the Senate that
the House of Representatives will in due time exhibit
particular articles of impeachment against him and make
good the same, and that the committee do demand that
the Senate take order for the appearance of said
Charles Swayne to answer said impeachment.
The appointment of Mr. Palmer of Pennsylvania, Mr. Jenkins of
Wisconsin, Mr. Gillett of California, Mr. Clayton of Alabama,
and Mr. Smith of Kentucky, members of said committee by the
Speaker was announced.
At this point the Sergeant at Arms announced the presence
of the committee from the House of Representatives, and the
following ensued:
The President pro tempore. The Senate will receive
the committee from the House of Representatives.
The committee from the House of Representatives was
escorted by the Sergeant at Arms (D. M. Ransdell) to the area
in front of the Vice President's desk, and its chairman, Mr.
Palmer said:
Mr. President, in obedience to the order of the House
of Representatives we appear before you, and in the
name of the House of Representatives and of all the
people of the United States of America we do impeach
Charles Swayne, judge of the district court of the
United States for the northern district of Florida, of
high crimes and misdemeanors in office; and we do
further inform the Senate that the House of
Representatives will in due time exhibit articles of
impeachment against him and make good the same. And in
their name we demand that the Senate shall take order
for the appearance of the said Charles Swayne to answer
the said impeachment.
The President pro tempore stated that the Senate would take
proper order in the premises, notice of which would be given to
the House.
The committee of the House of Representatives thereupon
retired from the Chamber.
(December 14, 1904, 58-3, Journal, pp. 38-39.)
Trial of William W. Belknap
On Friday, March 3, 1876, following the introduction of
bills and resolution, the following message from the House was
presented:
Mr. President: The House of Representatives has
passed the following resolution, which I am directed to
communicate to the Senate:
Resolved, That a committee of five members of this
House be appointed and instructed to proceed
immediately to the bar of the Senate, and there impeach
William W. Belknap, late Secretary of War, in the name
of the House of Representatives and of all the people
of the United States of America, of high crimes and
misdemeanors while in office, and to inform that body
that formal articles of impeachment will in due time be
presented, and to request the Senate to take such order
in the premises as they deem appropriate.
Ordered, That Mr. Heister Clymer, Mr. William M.
Robbins, Mr. Joseph C. S. Blackburn, Mr. Lyman K. Bass,
and Mr. Lorenzo Danford be the committee aforesaid.
The committee aforesaid then proceeded to the bar of the Senate
and delivered the following message:
Mr. President: In obedience to the order of the House
of Representatives we appear before you, and, in the
name of the House of Representatives and of all the
people of the United States of America, we do impeach
William W. Belknap, late Secretary of War of the United
States, of high crimes and misdemeanors in office; and
we further inform the Senate that the House of
Representatives will in due time exhibit articles of
impeachment against him and make good the same; and, in
their name, we demand that the Senate shall take order
for the appearance of said William W. Belknap to answer
said impeachment.
The President pro tempore replied that the Senate would take
order in the premises; and the committee withdrew.
(March 3, 1876, 44-1, Journal, p. 271.)
Trial of West H. Humphreys
On Wednesday, May 7, 1862, during the consideration of
legislative business, the following message from the House was
announced:
Resolved, That a committee of two be appointed to go
to the Senate, and, at the bar thereof, in the name of
the House of Representatives, and of all the people of
the United States, to impeach West H. Humphreys, judge
of the district court of the United States for the
several districts of Tennessee, of high crimes and
misdemeanors, and acquaint the Senate that the House of
Representatives will, in due time, exhibit particular
articles of impeachment against him, and make good the
same, and that the committee do demand that the Senate
take order for the appearance of said West H. Humphreys
to answer to said impeachment.
The Speaker, in accordance with the foregoing resolution,
appointed Mr. John A. Bingham and Mr. George H. Pendleton the
said committee.
The committee aforesaid then proceeded to the bar of the
Senate to deliver the following message:
Mr. President: By order of the House of
Representatives we appear at the bar of the Senate, and
in the name of the House of Representatives, and of the
people of the United States, we do impeach West H.
Humphreys, judge of the district court of the United
States for the several districts of Tennessee, of high
crimes and misdemeanors; and we do further inform the
Senate that the House of Representatives will, in due
time, exhibit particular articles of impeachment
against him, and make good the same; and in their name
we do demand that the Senate take order for the
appearance of said West H. Humphreys to answer to said
impeachment.
The President of the Senate replied that the Senate
would take order in the premises, and the committee
withdrew.
(May 7, 1862, 37-2, Journal, pp. 454-55.)
Trial of James H. Peck
On Monday, April 26, 1830, during the consideration of
various legislation, the following message from the House of
Representatives was announced by two of their members, Mr.
Buchanan and Mr. Henry R. Storrs, as follows:
Mr. President: We have been directed, in the name of
the House of Representatives, and of all the people of
the United States, to impeach James H. Peck, Judge of
the District Court of the United States for the
District of Missouri, of high misdemeanors in office;
and to acquaint the Senate that the House of
Representatives will, in due time, exhibit particular
articles of impeachment against him, and make good the
same.
We have also been directed to demand that the Senate
take order for the appearance of said James H. Peck, to
answer to said impeachment.
And they withdrew.
(April 26, 1830, 21-1, Journal, p. 269.)
Trial of Samuel Chase
On Tuesday, March 13, 1804, during the conduct of routine
business, a message was received from the House of
Representatives by Messrs. J. Randolph and Early, two of their
members.
Mr. President: We are ordered, in the name of the
House of Representatives and of all the People of the
United States, to impeach Samuel Chase, one of the
associate justices of the Supreme Court of the United
States, of high crimes and misdemeanors; and to
acquaint the Senate that the House of Representatives
will, in due time, exhibit particular articles of
impeachment against him, and make good the same.
We are also ordered to demand that the Senate take
order for the appearance of the said Samuel Chase, to
answer to the said impeachment.
And they withdrew.
(March 13, 1804, 8-1, Journal, p. 374.)
Trial of John Pickering
On Thursday, March 3, 1803, during the conduct of
legislative business, a message was received from the House of
Representatives by Mr. Nicholson and Mr. Randolph, two of the
members of said House, in the words following:
Mr. President: We are commanded in the name of the
House of Representatives and of all the people of the
United States, to impeach John Pickering, judge of the
district court of the district of New Hampshire, of
high crimes and misdemeanors; and to acquaint the
Senate, that the House of Representatives will, in due
time, exhibit particular articles of impeachment
against him, and make good the same.
We are further commanded, to demand that the Senate
take order for the appearance of the said John
Pickering to answer to the said impeachment.
And they withdrew.
(March 3, 1803, 7-2, Journal, p. 284.)
Trial of William Blount
On Friday, July 7, 1797, during the conduct of routine
business, a message was received from the House of
Representatives, by Mr. Sitgreaves, one of their members, in
the words following:
Mr. President: I am commanded, in the name of the
House of Representatives, and of all the people of the
United States, to impeach William Blount, a Senator of
the United States, of high crimes and misdemeanors; and
to acquaint the Senate, that the House of
Representatives will in due time, exhibit particular
articles against him, and make good the same.
I am further commanded, to demand, that the said
William Blount be sequestered from his seat in the
Senate; and that the Senate do take order for his
appearance, to answer the said impeachment.
And he withdrew.
(July 7, 1797, 5-1, Journal, p. 388.)]
2. In Some of the Recent Trials, at This Stage of the Proceedings, the
Senate Has Adopted Resolutions To Provide for the Payment of Expenses
of the Said Trials
In the trial of Halsted L. Ritter in 1936, the Senate
adopted an initial resolution providing for $5,000,\8\ and
later adopted a supplemental resolution providing an additional
$15,000 for such expenses.\9\
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\8\ March 9, 1936, 74-2, Senate Journal, p. 473.
\9\ March 31, 1936, 74-2, Senate Journal, p. 483.
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The form of such resolution is as follows:
Resolved, That not to exceed $5,000 is authorized to
be expended from the appropriation for miscellaneous
items, contingent expenses of the Senate, to defray the
expenses of the Senate in the impeachment trial of
Halsted L. Ritter.\10\
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\10\ March 9, 1936, 74-2, Senate Journal, p. 473.
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In the trial of Judge Swayne in 1905, a joint resolution
providing for direct appropriations from the Treasury was
passed to defray the expenses of the Senate in the impeachment
trial.\11\
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\11\ January 24, 1905, 58-3, Record, p. 1289; January 24, 1905, 53-
3, Journal, p. 119, signed by President Jan. 31, 1905; Feb. 7, 1905,
58-3, Journal, p. 175.
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3. Managers on the Part of the House of Representatives Appear in the
Senate Chamber and Are Announced. The Presiding Officer Directs Them to
the Seats Provided for Them and the Sergeant at Arms Makes His
Proclamation. The Chair Recognizes the Managers To Present the Articles
of Impeachment, Following a Quorum Call if One is Called for
In the trials of Judge Ritter, Judge Louderback, and
President Johnson, this procedure was as follows:
Trial of Halsted L. Ritter
On Monday, February 24 (Calendar day, Tuesday, March 10),
1936, at 1 o'clock p.m., the secretary for the majority
announced the presence in the Senate Chamber of the managers
appointed by the House of Representatives, to wit, Mr. Hatton
W. Sumners, Mr. Randolph Perkins, and Mr. Sam Hobbs, to conduct
the impeachment against Halsted L. Ritter, United States
district judge for the southern district of Florida, and they
were assigned to seats provided for them.
The Vice President directed the Sergeant at Arms to make
proclamation; and the Sergeant at Arms thereupon made
proclamation in the following words:
Hear ye! Hear ye! Hear ye! All persons are commanded
to keep silence, on pain of imprisonment, while the
House of Representatives is exhibiting to the Senate of
the United States articles of impeachment against
Halsted L. Ritter, United States district judge for the
southern district of Florida.
Mr. Robinson raised a question as to the presence of a
quorum, whereupon the Vice President directed the roll to be
called, when eighty-six Senators answered to their names.
* * * * * * *
A quorum being present, Mr. Sumners, as chairman, announced
that the managers on the part of the House were present and
ready to exhibit articles of impeachment preferred by the House
against Halsted L. Ritter, United States district judge for the
southern district of Florida, and he read the resolution
received on yesterday from the House of Representatives,
appointing the managers to conduct the impeachment against the
said Halsted L. Ritter and instructing them to appear before
the Senate and demand his impeachment and trial.
Mr. Hobbs, one of the managers on the part of the House,
then read the articles of impeachment:\12\
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\12\ March 10, 1936, 74-2, Journal, p. 473.
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Trial of Harold Louderback
On Friday, March 3, 1933, at 12 o'clock and 20 minutes
p.m., the assistant doorkeeper announced the presence in the
Senate Chamber of the managers appointed by the House of
Representatives, to wit, Mr. Sumners, Mr. Browning, Mr. Tarver,
Mr. LaGuardia, and Mr. Sparks, to conduct the impeachment
against Harold Louderback, United States district judge for the
northern district of California, and they were assigned to
seats provided for them.
Mr. Sumners announced that the managers on the part of the
House were presented to exhibit articles of impeachment
preferred by the House against Harold Louderback, United States
district judge for the northern district of California.
The Vice President then directed the Deputy Sergeant at
Arms to make proclamation; and the Deputy Sergeant at Arms
having made proclamation in the following words:
Hear ye! Hear ye! Hear ye! All persons are commanded
to keep silence, on pain of imprisonment, while the
House of Representatives is exhibiting to the Senate of
the United States articles of impeachment against
Harold Louderback, United States district judge for the
northern district of California.
Mr. Sumners as chairman, read the resolution received from
the House of Representatives on February 28, 1933, appointing
the managers to conduct the impeachment against the said Harold
Louderback, and instructing them to appear before the Senate
and demand his impeachment and trial.
Mr. Browning, one of the managers on the part of the House,
read the articles of impeachment.\13\
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\13\ March 3, 1933, 72-2, Journal, pp. 283-84.
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Trial of Andrew Johnson
On Wednesday, March 4, 1868, at 1 o'clock p.m., the
Sergeant at Arms announced the presence at the door of the
Senate Chamber of the managers appointed by the House of
Representatives, to wit: Mr. Bingham, Mr. Boutwell, Mr. James
F. Wilson, Mr. Butler, Mr. Thomas Williams, Mr. Logan, and Mr.
Thaddeus Stevens, to conduct the impeachment against Andrew
Johnson, President of the United States.
The President pro tempore requested the managers to take
the seats assigned them within the bar of the Senate.
Mr. Bingham rose and announced, on the part of the
managers, that they were ready to exhibit, on the part of the
House of Representatives, articles of impeachment against
Andrew Johnson, President of the United States.
The President pro tempore then directed the Sergeant at
Arms to make proclamation; and the Sergeant at Arms having made
proclamation in the following words:
Hear ye! Hear ye! Hear ye! All persons are commanded
to keep silence, on pain of imprisonment, while the
House of Representatives is exhibiting to the Senate of
the United States articles of impeachment against
Andrew Johnson, President of the United States.
The managers rose, and Mr. Bingham, their chairman, read
the articles.\14\
---------------------------------------------------------------------------
\14\ March 4, 1868, 40-2, Journal, p. 800.
---------------------------------------------------------------------------
There were slight variations in the above procedures in
some of the other impeachment trials held by the Senate, set
forth below. [Briefly, the procedure for each of the other
cases follows:
Trial of George W. English
On Monday, April 19, 1926, at 2 o'clock, the assistant
doorkeeper announced the presence in the Senate Chamber of the
managers appointed by the House of Representatives, to wit, Mr.
Michener, Mr. Boies, Mr. Hersey, Mr. Moore, Mr. Stobbs, Mr.
Sumners, Mr. Montague, Mr. Tilman, and Mr. Dominick, to conduct
the impeachment against George W. English, United States
district judge for the eastern district of Illinois, and they
were assigned to seats provided for them.
Mr. Michener announced that the managers on the part of the
House were ready to exhibit the articles of impeachment adopted
by the House against George W. English, United States district
judge for the eastern district of Illinois.
The Vice President then directed the Sergeant at Arms to
make proclamation; and the Sergeant at Arms having made
proclamation in the following words:
Hear ye! Hear ye! Hear ye! All persons are commanded
to keep silence, on pain of imprisonment, while the
House of Representatives is exhibiting to the Senate of
the United States articles of impeachment against
George W. English, United States district judge for the
eastern district of Illinois.
The managers arose, and Mr. Michener, their chairman,
thereupon read the articles of impeachment.
(April 19, 1926, 691-1, Journal, p. 336.)
Trial of Robert W. Archbald
On Monday, July 15, 1912, at 12 o'clock and 15 minutes
p.m., the Sergeant at Arms announced the presence in the Senate
Chamber of the managers appointed by the House of
Representatives, to wit, Mr. Clayton, Mr. Webb, Mr. Floyd, Mr.
Davis of West Virginia, Mr. Sterling, Mr. Howland, and Mr.
Norris, to conduct the impeachment against Robert W. Archbald,
circuit judge of the United States and designated as a judge of
the United States Commerce Court.
Mr. Clayton announced on the part of the managers that they
were ready to exhibit, on the part of the House of
Representatives, articles of impeachment against Robert W.
Archbald, circuit judge of the United States and designated as
a judge of the United States Commerce Court.
The President pro tempore then directed the Sergeant at
Arms to make proclamation; and the Sergeant at Arms having made
proclamation in the following words:
Hear ye! Hear ye! Hear ye! All persons are commanded
to keep silence, on pain of imprisonment, while the
House of Representatives is exhibiting to the Senate of
the United Statesarticles of impeachment against Robert
W. Archbald, circuit judge of the United States and designated as a
judge of the United States Commerce Court.
The managers arose, and Mr. Clayton, their chairman, read
the articles of impeachment.
(July 15, 1912, 62-2, Journal, p. 454.)
Trial of Charles Swayne
On Tuesday, January 24, 1905, at 12 o'clock and 30 minutes
p.m., the Sergeant at Arms announced the presence in the Senate
Chamber of the managers appointed by the House of
Representatives, to wit, Mr. Palmer, Mr. Perkins, Mr. Clayton,
Mr. DeArmond, and Mr. Smith of Kentucky to conduct the
impeachment against Charles Swayne, judge of the district court
of the United States in and for the northern district of the
State of Florida.
The President pro tempore requested the managers to take
the seats assigned them within the bar of the Senate.
Mr. Palmer rose and announced on the part of the managers
that they were ready to exhibit, on the part of the House of
Representatives, articles of impeachment against Charles
Swayne, judge of the district court of the United States in and
for the northern district of the State of Florida
The President pro tempore then directed the Sergeant at
Arms to make proclamation; and the Sergeant at Arms having made
proclamation in the following words:
Hear ye! Hear ye! Hear ye! All persons are commanded
to keep silence on pain of imprisonment, while the
House of Representatives is exhibiting to the Senate of
the United States articles of impeachment against
Charles Swayne, judge of the district court of the
United States in and for the northern district of
Florida.
The managers rose, and Mr. Palmer, their chairman, read the
articles of impeachment.
(January 24, 1905, 58-3, Journal, p. 119.)
Trial of William W. Belknap
On Tuesday, April 4, 1876, at 1 o'clock and 25 minutes
p.m., the Sergeant at Arms announced the presence in the Senate
Chamber of the managers appointed by the House of
Representatives, to wit: Mr. Lord, Mr. Knott, Mr. Lynde, Mr.
McMahon, Mr. Jenks, Mr. Lapham, and Mr. Hoar, to conduct the
impeachment against William W. Belknap, late Secretary of War.
The President pro tempore requested the managers to take
the seats assigned them within the bar of the Senate.
Mr. Lord rose and announced, on the part of the managers,
that they were ready to exhibit, on the part of the House of
Representatives, articles of impeachment against William W.
Belknap, late Secretary of War.
The President pro tempore then directed the Sergeant at
Arms to make proclamation; and, the Sergeant at Arms having
made proclamation in the following words:
Hear ye! Hear ye! Hear ye! All persons are commanded
to keep silence, on pain of imprisonment, while the
House of Representatives is exhibiting to the Senate of
the United States articles of impeachment against
William W. Belknap, late Secretary of War.
The managers rose, and Mr. Lord, their chairman, read the
articles of impeachment.
(April 4, 1876, 44-1, Journal, pp. 900-01.)
Trial of West H. Humphreys
On Thursday, May 22, 1862, the managers appointed by the
House of Representatives, to wit, Mr. Bingham, Mr. Pendleton,
Mr. Train, and Mr. Dunlop, appeared and were admitted; and Mr.
Bingham, their chairman, announced that they were instructed by
the House of Representatives to exhibit certain articles of
impeachment against West H. Humphreys, judge of the district
court of the United States for the districts of Tennessee.
The Vice President requested the managers to take the seats
assigned them within the bar, and directed the Sergeant at Arms
to make proclamation as follows:
Oyez! Oyez! Oyez! All persons are commanded to keep
silence, on pain of imprisonment, while the grand
inquest of the nation is exhibiting to the Senate of
the United States articles of impeachment against West
H. Humphreys, judge of the district court of the United
States for the districts of Tennessee.
After which, the managers rose, and Mr. Bingham, their
chairman, read the articles of impeachment.
(May 22, 1862, 37-2, Journal, p. 889.)
Trial of James H. Peck
On Tuesday, May 4, 1830, the managers on the part of the
House of Representatives, viz: Messrs. Buchanan, Storrs, of New
York, McDuffie, Spencer, and Wickliffe, appeared, and were
admitted; and Mr. Buchanan, their chairman, having announced
that they were the managers instructed by the House of
Representatives to exhibit a certain article of impeachment
against James H. Peck, Judge of the district court of the
United States for the district of Missouri.
They were requested by the Vice President to take seats
assigned them within the bar; and the Sergeant at Arms was
directed to make proclamation in the words following:
Oyez! Oyez! Oyez! All persons are commanded to keep
silence, on pain of imprisonment, while the grand
inquest of the nation is exhibiting to the Senate of
the United States articles of impeachment against James
H. Peck, Judge of the district court of the United
States for the district of Missouri.
After which the managers rose, and Mr. Buchanan, their
chairman, read the articles of impeachment.
(May 4, 1830, 21-2, Journal, p. 240.)
Trial of Samuel Chase
On Friday, December 7, 1804, the managers on the part of
the House of Representatives, to wit: Messrs. John Randolph,
Rodney, Nicholson, Early, Boyle, Nelson, and G.W. Campbell,
were admitted;and Mr. Randolph, the chairman, announced ``that
they were the managers instructed by the House of Representatives to
exhibit certain articles of impeachment against Samuel Chase, one of
the associate justices of the Supreme Court of the United States.''
The managers were requested by the President to take seats
assigned them within the bar, and the Sergeant at Arms was
directed to make proclamation in the words following:
Oyes! Oyes! Oyes! All persons are commanded to keep
silence, on pain of imprisonment, while the grand
inquest of the nation is exhibiting to the Senate of
the United States articles of impeachment against
Samuel Chase, one of the associate justices of the
Supreme Court of the United States.
After which the managers rose, and Mr. Randolph, their
chairman, read the articles.
(December 7, 1804, 8-1, Journal, pp. 509-10.)
Trial of John Pickering
On Wednesday, January 4, 1804, the managers on the part of
the House of Representatives, Messrs. Nicholson, Early, Rodney,
Eustis, John Randolph, jun. Samuel L. Mitchill, George W.
Campbell, Blackledge, Boyle, Joseph Clay, and Newton, were
admitted; and Mr. Nicholson, the chairman, announced that they
were the managers instructed by the House of Representatives to
exhibit certain articles of impeachment against John Pickering,
district judge of the district of New Hampshire.
They were requested by the President to take seats assigned
them within the bar. The Sergeant at Arms was directed to make
proclamation, in the words following:
Oyes! Oyes! Oyes! All persons are commanded to keep
silence on pain of imprisonment, while the grand
inquest of the Nation is exhibiting to the Senate of
the United States, sitting as a court of impeachments,
articles of impeachment against John Pickering, judge
of the district court of the district of New Hampshire.
The managers then rose, and Mr. Nicholson, their chairman, read
the articles.
(January 4, 1804, 8-1, Journal, p. 495.)
Trial of William Blount
On Wednesday, February 7, 1798, a message was announced
from the House of Representatives, by the managers on the part
of the House of Representatives, Messrs. Sitgreaves, Bayard,
Harper, Gordon, Pinckney, Dana, Sewall, Hosmer, Dennis, Evans,
and Imlay, who, being introduced, Mr. Sitgreaves, their
chairman, addressed the Senate as follows:
Mr. Vice President: The House of Representatives
having agreed upon articles, in maintenance of their
impeachment against William Blount, for high crimes and
misdemeanors, and having appointed on their part
managers of the said impeachment, the managers have now
the honor to attend the Senate, for the purpose of
exhibiting the said articles.
The Vice President then ordered the Sergeant at Arms to
proclaim silence, after which he notified the managers that the
Senate were ready to hear the articles of impeachment;
whereupon, the chairman of the managers read the articles of
impeachment, and they were received from him at the bar by the
Sergeant at Arms, and laid on the table.
The Vice President then informed the managers, that the
Senate will take proper order on the subject of the
impeachment, of which due notice shall be given to the House of
Representatives, and they withdrew. The Secretary then read the
articles of impeachment. . . .
(February 7, 1798, 5-2, Journal, p. 435.)]
4. The Managers, After Presenting the Articles of Impeachment, Asks the
Senate To Take Order for the Trial, and the Presiding Officer Informs
the Managers That the Senate Will Duly Inform the House of
Representatives When Ready for the Trial. The Managers After Delivering
the Articles of Impeachment Withdraw From the Senate
In the trial of Judge Ritter and Judge Louderback, the
Journal exhibits the procedure, as set forth below; but in the
case of President Johnson, the President pro tempore merely
announced ``that the Senate would take proper order. . . .''
15
---------------------------------------------------------------------------
\15\ March 2, 1868, 40-2, Senate Journal, p. 807.
---------------------------------------------------------------------------
The reading of the articles of impeachment having
been concluded, Mr. Sumners said:
``Mr. President, the House of Representatives by
protestation, saving to themselves the liberty of
exhibiting at any time hereafter any further articles
of accusation or impeachment against the said Halsted
L. Ritter, a district judge of the United States for
the southern district of Florida, and also of replying
to his answers which he shall make unto the articles
preferred against him, and of offering proof to the
same and every part thereof, and to all and every other
article of accusation or impeachment which shall be
exhibited by them as the case shall require, do demand
that the said Halsted L. Ritter may be put to answer
the misdemeanors in office which have been charged
against him in the articles which have been exhibited
to the Senate, and that such proceedings, examinations,
trials, and judgments may be thereupon had and given as
may be agreeable to law and justice.
``Mr. President, the managers on the part of the
House of Representatives, in pursuance of the action of
the House of Representatives by the adoption of the
articles of impeachment which have just been read to
the Senate, do now demand that the Senate take order
for the appearance of said Halsted L. Ritter to answer
said impeachment, and do now demand his impeachment,
conviction, and removal from office.''
The Vice President informed the managers that the
Senate would take proper order in the matter of the
impeachment, and that notice would be given to the
House of Representatives.
The managers, by their chairman, Mr. Sumners, then
delivered the articles of impeachment at the
Secretary's desk, and withdrew from the
Chamber.16
---------------------------------------------------------------------------
\16\ March 10, 1936, 74-2, Senate Journal, p. 477.
---------------------------------------------------------------------------
5. After the Articles of Impeachment Have Been Presented to the Senate,
the Next Step Is for the Senate to Organize for the Trial. The
Presiding Officer Takes His Oath for the Trial and Then, as in the
Ritter Trial, Administers the Oath to the Senators Standing at Their
Seats. In the Case of the Johnson Trial, This Procedure Was Somewhat
Different Since the Chief Justice of the Supreme Court Presided
In the recent trials some particular Senator is designated
on motion to administer the oath to the President pro tempore
of the Senate or the Presiding Officer,17 as the
case may be, who then in turn administers the following oath to
the rest of the membership of the Senate,18 on
occasion en bloc,19 with the Senators standing at
their respective seats:
---------------------------------------------------------------------------
\17\ March 10, 1936, 74-2, Senate Journal, p. 477, March 9, 1933,
73-1, Senate Journal, p. 307; July 16, 1912, 62-2, Senate Journal, pp.
628-29.
\18\ Ibid.; this form of the oath is prescribed in Rule XXV, and
was adopted in 1868, and is the same oath administered to both the
entire membership of the Senate and the Chief Justice.
\19\ March 10, 1936, 74-2, Senate Journal, p. 477.
---------------------------------------------------------------------------
You do solemnly swear that in all things appertaining
to the trial of the impeachment of Halsted L. Ritter,
United States district judge for the southern district
of Florida, now pending, you will do impartial justice
according to the Constitution and laws. So help you
God.20
---------------------------------------------------------------------------
\20\ March 10, 1936, 74-2, Senate Journal, p. 477.
---------------------------------------------------------------------------
On March 12, 1936, during the trial of Halsted Ritter, it
was announced that it was the duty of the Journal Clerk to keep
the names of Senators who had taken the oath subsequent to the
time the other Senators took their oath en bloc, and that there
would be no other record.21
---------------------------------------------------------------------------
\21\ March 12, 1936, 74-2, Record, p. 3646.
---------------------------------------------------------------------------
If the Senators are not present when the oath is
administered to the entire membership, the oath will be
administered to them subsequently when they show during the
trial, but to participate in the trial they each must have
taken the oath.22
---------------------------------------------------------------------------
\22\ See Rule III.
---------------------------------------------------------------------------
On March 12, 1936, during the conduct of regular
legislative business and prior to the hour of 1 o'clock, at
which time the Senate would resolve itself into a court of
impeachment, the following occurred:
Mr. McNary. Mr. President, I am advised that the
junior Senator from Vermont (Mr. Gibson) desires to
take the oath as a juror in the impeachment
proceedings.
The Vice President. After a thorough survey of the
situation, the best judgment of the Chair is that
Senators who have not heretofore taken the oath as
jurors of the court should take it after the Senate
resolves itself into a court; all Senators who have not
as yet taken the oath as jurors will take the oath at
that time.23
---------------------------------------------------------------------------
\23\ March 12, 1936, 74-2, Record, p. 3641.
---------------------------------------------------------------------------
In the case of an impeachment of the President of the
United States or the Vice President of the United States, the
Constitution and Rule IV provide for the Chief Justice of the
United States Supreme Court to preside, and for the timing of
the appearance of the Chief Justice. Rule IV of the Senate
impeachment rules reads as follows:
When the President of the United States, or the Vice-
President of the United States, upon whom the powers
and duties of the office of President shall have
devolved, shall be impeached, the Chief Justice of the
United States shall preside; and in a case requiring
the said Chief Justice to preside, notice shall be
given to him by the presiding officer of the Senate of
the time and place fixed for the consideration of the
articles of impeachment, as aforesaid, with a request
to attend; and the said Chief Justice shall be
administered the oath by the presiding officer of the
Senate and shall preside over the Senate during the
consideration of said articles, and upon the trial of
the person impeached therein.24
---------------------------------------------------------------------------
\24\ In the trial of President Johnson, there was some conflict
between the Chief Justice and the Senate as to when the Chief Justice
should begin to preside.
On March 4, 1868, the Senate received a letter from Chief Justice
Salmon P. Clase outlining his view of the timing of his appearance for
the trial of Andrew Johnson which read in part:
``That when the Senate sits for the trial of an impeachment it sits
as a court seems unquestionable.
``That for the trial of an impeachment of the President, this court
must be constituted of the members of the Senate, with the Chief
Justice presiding, seems equally unquestionable.
. . . the organization of the Senate as a court of impeachment,
under the Constitution, should precede the actual announcement of the
impeachment on the part of the House.
. . . articles of impeachment should only be presented to a court
of impeachment that no summons or other process should issue except
from the organized court, and that rules for the government of the
proceedings of such a court should be framed only by the court
itself.''
The letter was read to the Senate and referred to the select
committee appointed to consider the message on impeachment from the
House of Representatives and no further action was taken. The Senate
proceeded to receive the managers on the part of the House and to hear
the articles of impeachment in the absence of the Chief Justice and at
the conclusion of the day adopted an order to notify the Chief Justice.
(March 4, 1868, 40-2, Journal, p. 799.)
---------------------------------------------------------------------------
During the trial of Andrew Johnson in 1868, the only
precedent for a Chief Justice presiding during a trial of
impeachment, a resolution was adopted following the reading to
the articles of impeachment as follows:
Resolved, That at 1 o'clock tomorrow afternoon the Senate
will proceed to consider the impeachment of Andrew Johnson,
President of the United States, at which time the oath or
affirmation required by the rules of the Senate sitting for the
trial of an impeachment shall be administered by the Chief
Justice of the United States, as the presiding officer of the
Senate, sitting as aforesaid, to each member of the Senate, and
that the Senate sitting as aforesaid will at the time aforesaid
receive the managers appointed by the House of Representatives.
Ordered, That the Secretary lay this resolution before the
House of Representatives.
Ordered, That the articles of impeachment exhibited against
Andrew Johnson, President of the United States, be printed.
Ordered, That a copy of the ``rules of procedure and
practice in the Senate when sitting on the trial of
impeachments'' be communicated by the Secretary to the House of
Representatives,and a copy thereof delivered by him to each
member of the House.\25\
---------------------------------------------------------------------------
\25\ Senate Journal, 40-2, March 4, 1868, pp. 807-08.
---------------------------------------------------------------------------
This in turn was followed by the adoption of an order giving
notice to the Chief Justice as follows:
Ordered, That the notice to the Chief Justice of the
United States to meet the Senate in the trial of the
case of impeachment, and requesting his attendance as
presiding officer, be delivered to him by a committee
of three Senators, to be appointed by the Chair, who
shall wait upon the Chief Justice to the Senate Chamber
and conduct him to the Chair.\26\
---------------------------------------------------------------------------
\26\ March 4, 1868, 40-2, Journal, p. 808.
---------------------------------------------------------------------------
The next day at the hour of 1 o'clock, the President pro
tempore made the following statement and then vacated the
Chair:
The morning hour having expired, all legislative and
executive business of the Senate is ordered to cease
for the purpose of proceeding to business pertaining to
the impeachment of the President of the United States.
The chair as vacated for that purpose.\27\
---------------------------------------------------------------------------
\27\ Congressional Globe, 40-2, March 5, 1868, p. 1671.
---------------------------------------------------------------------------
At this point the Chief Justice of the United States
entered the Chamber accompanied by the ranking associate
justice of the Supreme Court and escorted by a Senate committee
of three appointed for that purpose. Upon taking the Chair, the
Chief Justice made the following statement:
Senators: I attend the Senate in obedience to your
notice, for the purpose of joining with you in forming
a court of impeachment for the trial of the President
of the United States, and I am now ready to take the
oath.\28\
---------------------------------------------------------------------------
\28\ March 5, 1868, 40-2, Congressional Globe, p. 1671.
---------------------------------------------------------------------------
The oath was then administered to the Chief Justice by the
Associate Justice as follows:
I do solemnly swear that in all things appertaining
to the trial of the impeachment of Andrew Johnson,
President of the United States, I will do impartial
justice according to the Constitution and laws. So help
me God.\29\
---------------------------------------------------------------------------
\29\ Ibid., p. 871; this form was agreed to in 1868, but as
reported to the Senate, it provided that the form of the oath was to be
administered to the Presiding Officer and members of the Senate.
Senator Charles Drake of Missouri raises the point that the
Constitution did not require that the Presiding Officer be sworn, only
the Senators, and indeed that the Chief Justice was already sworn to
perform his duties, and that presiding in an impeachment trial was part
of those duties. (March 2, 1868, 40-2, Congressional Globe, pp. 1590-
93.) As a result, the Senate agreed to an amendment striking out the
words ``Presiding Officer'' from the heading providing for the oath. In
spite of this, when the Chief Justice arrived in the Senate for the
trial of Andrew Johnson, he was accompanied by the senior Associate
Justice of the Supreme Court who did administer the oath.
---------------------------------------------------------------------------
Whereupon the Chief Justice administered the oath to the
Senators individually and in alphabetical order. The oath is
found in Rule XXV.
During the trial of the President, as the Chief Justice
entered the Senate Chamber, he was escorted to the Chair by the
chairman of the Senate committee appointed for that
purpose.\30\
---------------------------------------------------------------------------
\30\ Congressional Globe Supplement, 40-2, March 23, 1868, p. 11.
---------------------------------------------------------------------------
6. After the Oaths are Administered, the Chair Directs the Sergeant At
Arms To Make Proclamation for the Beginning of the Trial and the Order
for a Summons to the Respondent Is Adopted
The proclamation is set forth under Rule II as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded
to keep silence, on pain of imprisonment, while the
House of Representatives is exhibiting to the Senate of
the United States articles of impeachment against ----
-- ------.
The proclamation is repeated each new day of the trial by
the Sergeant at Arms, when directed by the Presiding Officer to
do so, which occurs each day when the trial begins.\31\
---------------------------------------------------------------------------
\31\ See Rule XII and Rule XIII.
---------------------------------------------------------------------------
At this point the Senate proceeds to adopt an order to
notify the House of Representatives that the Senate is
organized for the trial.\32\
---------------------------------------------------------------------------
\32\ March 9, 1933, 73-1, Senate Journal, p. 307.
---------------------------------------------------------------------------
Once the House had been notified, the managers appear,
enter the Senate Chamber, and take seats assigned to them.
Again, the proclamation is made by the Sergeant at Arms and an
order for a summons to the respondent is adopted, which, in the
case of Judge Ritter's trial, took the following form:
Ordered, That a summons to the accused be issued as
required by the rules of procedure and practice in the
Senate, when sitting for the trial of the impeachment
against Halsted L. Ritter, United States district judge
for the southern district of Florida, returnable on
Thursday, the 12th of March 1936, at 1 o'clock in the
afternoon.\33\
---------------------------------------------------------------------------
\33\ March 10, 1936, 74-2, Journal, p. 478.
---------------------------------------------------------------------------
The form of the summons as set forth under Rule XXV is as
follows:
THE UNITED STATES OF AMERICA, ss:
The Senate of the United States to ------ ------,
greeting:
Whereas the House of Representatives of the United
States of America did, on the ------ ------ day of ----
--, exhibit to the Senate articles of impeachment
against you, the said ------ ------, in the words
following:
(Here insert the articles.)
And demand that you, the said ------ ------, should be
put to answer the accusations as set forth in said
articles, and that such proceedings, examinations,
trials, and judgments might be there upon had as are
agreeable to law and justice.
You, the said ------ ------, are therefore hereby
summoned to be and appear before the Senate of the
United States of America, at their Chamber in the city
of Washington, on the ------ day of ------, at ------
o'clock, then and there to answer to the said articles
of impeachment, and then and there to abide by, obey,
and perform such orders, directions, and judgments as
the Senate of the United States shall make in the
premises according to the Constitution and laws of the
United States.
Hereof you are not to fail.
Witness ------ ------, and Presiding Officer of the
said Senate, at the city of Washington, this ------ day
of ------, in the year of our Lord ------, and of the
Independence of the United States the ------.
------ ------,
Presiding Officer of the Senate.
The form of the precept to be endorsed on the said writ of
summons as set forth under Rule XXV is as follows:
THE UNITED STATES OF AMERICA, ss:
The Senate of the United States to ------ ------,
greeting:
You are hereby commanded to deliver to and leave with
------ ------, if conveniently to be found, or if not,
to leave at his usual place of abode, or at his usual
place of business in some conspicuous place, a true and
attested copy of the within writ of summons, together
with a like copy of this precept; and in whichsoever
way you perform the service, let it be done at least --
---- days before the appearance day mentioned in the
said writ of summons.
Fail not, and make return of this writ of summons and
precept, with your proceedings thereon indorsed, on or
before the appearance day mentioned in the said writ of
summons.
Witness ------ ------, and Presiding Officer of the
Senate, at the city of Washington, this ------ day of
------, in the year of our Lord ------, and of the
Independence of the United States the ------.
------ ------,
Presiding Officer of the Senate.
Subsequently, after the Sergeant at Arms makes his return
on serving the summons, the Secretary reads it to the Senate:
SENATE OF THE UNITED STATES,
OFFICE OF THE SERGEANT AT ARMS.
The writ of summons addressed to ------ ------, and
the precept, addressed to me, were duly served upon the
said ------ ------ by me by delivering true and
attested copies of the same to the said ------ ------
at the ------, ------, on ------, the ------ of ------
------ 19------ , at ------ o'clock in the forenoon of
that day.
------ ------,
Sergeant at Arms, United States Senate.\34\
---------------------------------------------------------------------------
\34\ XXV, Impeachment Rules.
---------------------------------------------------------------------------
On the day appointed by the summons, the officer (the Sergeant
at Arms) who served the process is then administered an oath by
the Secretary of the Senate as to the truth of the return.
``You, ------ ------, do solemnly swear that the
return made by you upon the process issued on the ----
--th day of ------ 19------, by the Senate of the
United States against ------ ------, is truly made, and
that you have performed such service therein described.
So help you God.'' \35\
---------------------------------------------------------------------------
\35\ March 12, 1936. 74-2, Journal, p. 478.
---------------------------------------------------------------------------
The oath taken by the Sergeant at Arms, attesting to the
proper return used in the trial of Judge Pickering, follows:
I, James Mathers, do solemnly swear that the return
made and subscribed by me, upon the process issued on
the 12th day of January last by the Senate of the
United States against John Pickering, is truly made,
and that I have performed said services as there
described, so help me God.'' \36\
---------------------------------------------------------------------------
\36\ March 2, 1804, 8-1, Annals of the Congress of the United
States, p. 327.
---------------------------------------------------------------------------
The Sergeant at Arms, as directed by the Presiding Officer,
then makes proclamation, which, in the case of Harold L.
Ritter, was as follows:
Halsted, L. Ritter! Halsted L. Ritter! Halsted L.
Ritter! United States district judge for the southern
district of Florida: Appear and answer to the articles
of impeachment exhibited by the House of
Representatives against you.\37\
---------------------------------------------------------------------------
\37\ March 12, 1936, 74-2, Journal, p. 478.
---------------------------------------------------------------------------
The form used in the first impeachment trial, that of
William Blount, which takes much the same form as used today,
is as follows:
Hear ye! Hear ye! Hear ye!
William Blount, late a Senator from the State of
Tennessee, come forward and answer the articles of
impeachment exhibited against you by the House of
Representatives.\38\
---------------------------------------------------------------------------
\38\ December 17, 1798, 5-1 and 2, Annals of the Congress of the
United States, p. 2245.
---------------------------------------------------------------------------
In the case of Judge Louderback, however, the respondent
waived personal service and thus the oath was not administered
to the Sergeant at Arms on the return of the writ. With this
waiver the following resolution was adopted by the Senate:
In the Senate of the United States, Sitting as a Court of Impeachment
Whereas on March 13, 1933, John N. Garner, Vice
President and President of the Senate, acting under
authority of the Senate, sitting as a Court of
Impeachment, and in accordance with the Rules for
Impeachment Trials, issued a writ of summons to Harold
Louderback, United States district judge for the
northern district of California, commanding him to
appear before the Senate of the United States of
America at their Chamber in the city of Washington on
the 11th day of April, 1933, at 12:30 o'clock
afternoon, to answer to articles of impeachment
exhibited against him by the House of Representatives
of the United States of America, and addressed to
Chesley W. Jurney, Sergeant at Arms of the Senate, a
precept commanding him to serve true and attested
copies of said writ of summons and precept upon the
said Harold Louderback personally or by leaving same at
his usual place of abode or at his usual place of
business; and
Whereas since the recess of the Senate, sitting as a
Court of Impeachment, the said Chesley W. Jurney, as
Sergeant at Arms, acting upon a suggestion of the
Committee on the Judiciary of the Senate, with a view
to securing a waiver of personal service of said writ
of summons as required by the precept, communicated by
telegraph with the said Harold Louderback, who
consented to such waiver, and who subsequently
forwarded to said Chesley W. Jurney, as Sergeant at
Arms, a waiver, in writing, of personal service of said
writ of summons, signed by him and witnessed on the
28th day of March, 1933, agreeing voluntarily to appear
in person before the Senate of the United States at the
time and place specified in said writ of summons and
acknowledging receipt of true and attested copies of
said writ of summons and precept, transmitted to him by
the said Chesley W. Jurney, Sergeant at Arms: Now,
therefore, be it
Ordered, That the action of the said Chesley W.
Jurney, Sergeant at Arms of the Senate, in securing
waiver of personal service of said writ of summons upon
the said Harold Louderback be, and the same is hereby,
ratified and approved; that the delivery, by registered
mail, of true and attested copies of the said writ of
summons and precept to the said Harold Louderback and
his acceptance thereof, be deemed and taken to have
been a satisfactory and sufficient compliance by the
said Chesley W. Jurney, Sergeant at Arms, with the said
precept, and that the said Chesley W. Jurney, as
Sergeant at Arms, be, and he is hereby, authorized to
make return of said writ of summons and precept
accordingly.\39\
\39\ April 11, 1933, 73-1, Senate Journal, pp. 308-09.
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The return of the Sergeant at Arms was then read as follows:
Senate of the United States,
Office of the Sergeant At Arms.
The foregoing writ of summons, addressed to Harold
Louderback, and the foregoing precept, addressed to me,
were duly served upon the said Harold Louderback by the
transmittal, by registered mail, to the said Harold
Louderback of true and attested copies of the same, and
by his receipt thereof, as shown in the attached waiver
by the said Harold Louderback of personal service of
summons, said waiver being made a part of this return.
Chesley W. Jurney,
Sergeant at Arms, United States Senate.
In the Senate of the United States, Sitting as a Court of Impeachment
in the Case of Harold Louderback, United States District Judge for the
Northern District of California
Waiver of personal service of Harold Louderback, United
States district judge for the northern district of California.
I, Harold Louderback, United States district judge for the
northern district of California, do hereby waive personal
service of summons issued on the 13th day of March, 1933, by
Hon. John N. Garner, Vice President and President of the
Senate,which commands me to appear before the Senate of the
United States on April 11, 1933, at 12:30 p.m., to answer specific
articles of impeachment exhibited to the Senate by the House of
Representatives, and agree to voluntarily appear in person before the
Senate of the United States at the aforesaid time.
I acknowledge receipt of a true and attested copy of the
writ of summons issued in this case, together with a like copy
of the precept.
Witness my signature this 28th day of March, 1933, at the
city of San Francisco, State of California.
Harold Louderback,
Respondent.
Signature of witness:
James M. Hanley.\40\
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\40\ April 11, 1933, 73-1, Senate Journal, p. 309.
The Vice President, who was the Presiding Officer, announced
that in view of the waiver of summons, the oath normally
administered to the Sergeant at Arms would be dispensed with,
and he made the usual proclamation:
Harold Louderback! Harold Louderback! Harold
Louderback, United States district judge for the
northern district of California: Appear and answer to
the articles of impeachment exhibited by the House of
Representatives against you. \41\
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\41\ April 11, 1933, 73-1, Senate Journal, p. 309.
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Following the oath, the Presiding Officer directs the
Sergeant at Arms to make the following proclamation:
------ ------! ------ ------! ------ ------, appear
and answer the articles of impeachment exhibited
against you by the House of Representatives of the
United States.
At this point the counsel for the respondent and the
respondent (if he cares to appear) appear at the bar of the
Senate and take the assigned seats (to the right of the Chair).
Once the counsel for the respondent, and the respondent (if
he cares to appear), and any accompanying lawyers, have
appeared and taken their seats, then, if they wish to attend,
the House of Representatives, as a committee of the whole
House, preceded by its Chairman, and accompanied by the Speaker
of the House and the Clerk, take the seats provided for them,
and the trial gets underway. The counsel for the respondent is
asked for a reply to the subpena issued and often a request for
a delay in the trial is made, usually requesting a certain
number of days to prepare and file answer to the articles of
impeachment.
In the case of President Johnson the Senate agreed to an
order granting the President ten days to prepare his answer,
and so the Senate sitting for the trial of the President
adjourned for ten days.
The first order of business upon reconvening is to hear
from the counsel for the respondent the answer to the articles
of impeachment. Once the answer of the respondent to the
articles of impeachment has been completed, the managers on the
part of the House present, a replication of the House, which is
an answer by the House of Representatives to the respondent's
answer to the articles of impeachment. Following another
possible delay, if requested and granted, which in the Johnson
case was granted for six days, the trial proceeds with the
presentation of documentary evidence and the calling of
witnesses.
V. PRECEDENTS AND PRACTICES FOR IMPEACHMENT TRIAL
The Senate sitting as a court of impeachment has
established through its rules, practices, and precedents,
various definite procedures for the conduct of an actual
impeachment trial, as contrasted to the preliminaries and steps
pursued to get the trial underway. Some of the basic and more
common parliamentary usages utilized during a trial are set
forth below in alphabetical order:
Adjournment and Time of Daily Sessions of Trial
Rules on:
Rule XII provides:
At 12:30 o'clock afternoon, or at such other hour as
the Senate may order, of the day appointed for the
trial of an impeachment, the legislative and executive
business of the Senate shall be suspended, and the
Secretary shall give notice to the House of
Representatives that the Senate is ready to proceed
upon the impeachment of ------ ------, in the Senate
Chamber.
Rule XIII provides:
The hour of the day at which the Senate shall sit
upon the trial of an impeachment shall be (unless
otherwise ordered) 12 o'clock m., and when the hour
shall arrive, the Presiding Officer upon such trial
shall cause the proclamation to be made, and the
business of the trial shall proceed. The adjournment of
the Senate sitting in said trial shall not operate as
an adjournment of the Senate; but on such adjournment
the Senate shall resume the consideration of its
legislative and executive business.
Rule XXVI provides:
If the Senate shall at any time fail to sit for the
consideration of articles of impeachment on the day or
hour fixed therefor, the Senate may, by an order to be
adopted without debate, fix a day and hour for resuming
such consideration.
Adjourn to Time Certain:
A motion to adjourn to an hour certain other than 12 m. has
on occasion been ruled not in order.
On March 30, 1868,\42\ in the Senate, sitting for the
impeachment trial of Andrew Johnson, President of the
United States, Mr. John Sherman moved an adjournment.
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\42\ March 30, 1868, 40-2, Congressional Globe Supplement, p. 53.
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Mr. Charles Sumner, of Massachusetts, suggested that
the adjournment be to 10 o'clock on the morrow.
The Chief Justice said:
The hour of meeting is fixed by the rule, and the
motion of the Senator from Massachusetts is not in
order.
Again, in 1912, it was held that when the Senate was sitting
for an impeachment trial and adopts an order setting a specific
time to adjourn each day, a motion to adjourn at another hour
is not in order.\43\
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\43\ December 5, 1912, 62-3, Record, p. 170
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Later decisions and practices, however, do not conform to
the above rulings. During the trial of William W. Belknap, the
motion to adjourn to a certain time was admitted. On June 1,
1876, Mr. George G. Wright, a Senator from Iowa, proposed this
inquiry:
Mr. President, I wish to inquire whether it would be
in order now to move to adjourn to a day certain, or
whether the order should be properly that when the
Senate sitting as a court of impeachment adjourns, it
be to a definite time?
The President pro tempore said:
It would be in order to move to adjourn to a certain
time.\44\
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\44\ June 1, 1876, 44-1, Congressional Record, p. 161.
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On various other occasions the Senate sitting for
impeachment trials had adjourned \45\ or recessed \46\ to an
hour certain.
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\45\ See June 6, 1876, 44-1, Journal, p. 949; Jan. 27, 1905, 58-3,
Journal, p. 347; Feb. 3, 1905, 58-3, Journal, p. 359; Feb. 6, 1905, 58-
3, Journal, p. 360; Feb. 10, 1905, 58-3, Journal, p. 360; Dec. 5, 1912,
62-3, Journal, p. 318; Dec. 6, 1912, 62-3, Journal, p. 319; April 11,
1933, 73-1, Journal, p. 318, April 18, 1933, 73-1, Journal, p. 325, May
15, 1933, 73-1, Journal, p. 328, May 16, 1933, 73-1, Journal, p. 329;
April 3, 1936, 74-2, Journal, p. 494.
\46\ April 14, 1936, 72-2, Journal, p. 505; April 15, 1936, 74-2,
Journal, p. 506.
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Legislative and Executive Business, Unaffected by:
The Senate, when sitting as a court of impeachment, may
adjourn over without interfering with legislative sessions of
the Senate. See the following provision of Rule XIII of the
impeachment rules:
The adjournment of the Senate sitting in said trial
shall not operate as an adjournment of the Senate; but
on such adjournment the Senate shall resume the
consideration of its legislative and executive
business.
Orders for Meeting at Different Hours:
The Senate has adopted general orders setting a different
time to commence daily sessions of impeachment trials. In the
1912 trial, Mr. Clark of Wyoming submitted the following order,
which was considered by unanimous consent and agreed to:
Ordered, That the daily sessions of the Senate
sitting in the trial of impeachment of Robert W.
Archbald, additional circuit judge of the United
States, shall, unless otherwise ordered, commence at 2
o'clock in the afternoon.\47\
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\47\ December 3, 1912, 62-3, Journal, p. 317.
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On April 6, 1936, the Senate adopted the following order
regarding the hours of daily sessions:
Ordered, That until or unless otherwise ordered, the
daily sessions of the Senate, sitting for the trial of
the impeachment of Halsted L. Ritter, United States
district judge for the southern district of Florida,
shall be held as follows: From 12 o'clock noon until
1:30 p.m. and from 2:00 p.m. until 5:30 p.m.\48\
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\48\ April 6, 1936, 74-2, Senate Journal, p. 495.
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Precedence of Motions:
During the trial of President Johnson in 1868, Senator
Edmunds of Vermont moved that the Senate adjourn. At this point
Senator Fessenden of Maine moved that when the Senate adjourn,
it adjourn until Monday next. Senator Edmunds made the point of
order that his simple motion to adjourn took precedence, and
the Chief Justice ruled ``the motion to adjourn takes
precedence over every other motion if it is not withdrawn.''
\49\
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\49\ April 3, 1868, 40-2, Congressional Globe Supplement, pp. 110-
11.
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Amendments
Any proposal of a Senator during an impeachment trial is
only amendable upon the motion of other Senators, neither
managers on the part of the House nor the counsel for the
respondent may amend a Senator's proposal. The reverse is true
of any proposal of managers on the part of the House of
Representatives or counsel for the respondent. See the
following statement by the President pro tempore in the Belknap
trial:
The Chair has ruled that a proposition made by
managers or counsel is not amendable by Senators; but
any proposition made by a Senator is amendable by a
Senator, nor can the proposition made by Senators be
amended by the counsel or managers. A motion made by a
Senator has priority of one offered by the managers or
the counsel.\50\
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\50\ June 6, 1876, 44-1, Record, Vol. 4, pt. 7, p. 166.
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If a Senator proposes a substitute for any motion made by
the managers or counsel, such substitute would have
priority.\51\
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\51\ June 6, 1876, 44-1, Record, Vol. 4, pt. 7, p. 166.
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Appeals
Decisions of the Chair are subject to appeal by any
Senator. Note the following portion of Rule VII:
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. Upon
all such questions the vote shall be taken in
accordance with the Standing Rules of the Senate.
Only a Senator may appeal a decision of the Presiding
Officer. See the following colloquy at the trial of Andrew
Johnson in 1868: \52\
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\52\ June 7, 1876, 44-1, Record, Vol. 4, pt. 7, p. 192.
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The Chief Justice. The Chief Justice will state the
rule which he conceives to be applicable, once more. In
this body he is the presiding officer; he is so in
virtue of his high office under the Constitution. He is
Chief Justice of the United States, and therefore, when
the President of the United Statesis tried by the
Senate, it is his duty to preside in that body; and, as he understands,
he is therefore the President of the Senate sitting as a court of
impeachment. The rule of the Senate which applies to this question is
the seventh rule, which declares that ``the presiding officer may, in
the first instance, submit to the Senate, without a division, all
questions of evidence and incidental questions.'' He is not required by
that rule so to submit those questions in the first instance; but for
the dispatch of business, as is usual in the Supreme Court, he
expresses his opinion in the first instance. If the Senate who
constitute the court, or any member of it, desires the opinion of the
Senate to be taken, it is his duty then to ask for the opinion of the
court.
Mr. Manager Butler. May I respectfully inquire
whether that would extend to a Manager; whether a
Manager would have the right to ask that a question of
law should be submitted to the Senate?
The Chief Justice. The Chief Justice thinks not. It
must be by the action of the court or a member of
it.\53\
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\53\ March 31, 1868, 40-2, Congressional Globe Supplement, p. 60.
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Arguments at the trial
Incidental and Interlocutory Questions:
During the trial of Andrew Johnson in 1868, there was an
extended discussion precipitated by the managers on the part of
the House over the right to open and close arguments on
incidental questions. The position of the House was that the
managers had the right to open and close arguments on any
question regardless of who made the question. The Senate
rejected this contention and allowed whichever side proposed
the motion or made an objection to open and close the
argument.\54\
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\54\ April 1, 1868, 40-2, Congressional Globe Supplement, p. 70.
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Rule XXI of the impeachment rules, as amended by S. Res.
479, adopted August 16, 1986, concerning interlocutory
questions reads as follows:
All preliminary or interlocutory questions, and all
motions, shall be argued for not exceeding one hour,
unless the Senate otherwise orders, on each side.
When first adopting this rule in 1868, question was raised
as to whether there should be a provision giving the opening
and closing to the person making the motion or objection. This
was answered to the effect that the committee drafting the
rules had considered this question and had concluded that
specific provisions would be unnecessary since it was habitual
for the side making the motion or raising the objection to
yield after argument and then to conclude the argument after
the opponent had spoken. The committee thought this would
continue to be the practice under this rule.\55\
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\55\ March 2, 1868, 40-2, Congressional Globe, pp. 1568-80.
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The President pro tempore at the trial of Judge Archbald in
1912 made the following statement to the managers and counsel:
The Chair desires, in the interest of expedition and
orderly procedure, to suggest to both the managers on
the part of the House and counsel for the respondent
that hereafter when incidental questions are to be
discussed they be confined to an opening and a reply
and a conclusion. The Chair will not rule that
arbitrarily or positively, but trusts that counsel will
act upon its suggestion.\56\
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\56\ December 4, 1912, 62-3, Record, p. 107.
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Final Arguments, Limitation on:
Rule XXII provides that the ``final argument on the merits
may be made by two persons on each side unless otherwise
ordered by the Senate upon application for that purpose), and
the argument shall be opened and closed on the part of the
House of Representatives.''
The Senate in different trials has adopted a special order
to limit the final arguments by the managers and the counsel.
For example, the following order was adopted in the trial of
Halsted L. Ritter in 1936:
Ordered, That the time for final argument of the case
of Halsted L. Ritter shall be limited to 4 hours, which
said time shall be divided equally between the managers
on the part of the House of Representatives and the
counsel for the respondent, and the time thus assigned
to each side shall be divided as each side for itself
may determine.\57\
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\57\April 13, 1936, 74-2, Senate Journal, p 505.
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Likewise, in the case of Judge Louderback in 1933, the time
for final argument was limited to 4 hours, to be equally
divided between the managers on the part of the House and the
counsel for the respondent, that time to be subdivided as each
side might determine.\58\
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\58\ May 24, 1933. 73-1, Senate Journal, p. 338.
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In the trial of Judge Archbald, however, the two sides were
given three days, to be equally divided, to present their final
arguments, and if they had portions of their final arguments
which they wished to have printed as if delivered orally, they
were allowed to file these with the Official Reporters of
Debate.\59\
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\59\ January 8, 1913, 62-3, Senate Journal, pp. 324-25.
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In the trial of Judge Swayne in 1905, no specific provision
was made for final arguments. They were begun on the 23rd of
February and concluded the next day.\60\
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\60\ February 23, 24, 1905, 58-3, Senate Journal, p. 305.
---------------------------------------------------------------------------
In the trial of Secretary of War Belknap, there was no
limitation on the time for the final arguments but there was on
the number. Three managers and three counsels for the
respondent could be heard in the concluding arguments.\61\
These arguments lasted from July 20th to July 26, 1876.\62\
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\61\ July 20-26, 1986, 44-1, Senate Journal, pp. 983-87.
\62\ July 20-26, 1876, 44-1, Senate Journal, pp. 983-87.
---------------------------------------------------------------------------
In the trial of Andrew Johnson in 1868, the Senate adopted
an order that as many of the managers and of the counsels for
the President as desired to do so be permitted to file argument
or address the Senate orally.\63\ The final argument lasted
from April 22 to May 6, 1868.\64\
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\63\ April 22, 1868, 40-2, Senate Journal, p. 919.
\64\ April 22-May 6, 1868, 40-2, Senate Journal, pp. 919-32.
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Articles of Impeachment
Amendments to:
In the trial of Halsted L. Ritter, the House of
Representatives amended their original articles of impeachment.
On March 30, 1936, they sent the following message to the
Senate:
Resolved, That a message be sent to the Senate by the
Clerk of the House informing the Senate that the House
of Representatives has adopted an amendment to the
articles of impeachment heretofore exhibited against
Halsted L. Ritter, United States district judge for the
southern district of Florida, and that the same will be
presented to the Senate by the managers on the part of
the House.
And also that the managers have authority to file with
the Secretary of the Senate, on the part of the House, any
subsequent pleadings they shall deem necessary.\65\
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\65\ March 30, 1936, 74-2, Senate Journal, p. 480.
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The following day, March 31, the amendments to the
articles were presented,\66\ by the managers on the part of the
House, and the counsel for the respondent asked for 48 hours to
file his response to the new articles.\67\
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\66\ March 31, 1936, 74-2, Senate Journal, p. 480.
\67\ March 31, 1936, 74-2, Senate Journal, p. 482.
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In the case of Judge Harold Louderback in 1933, article V
of the article of impeachment was amended by the House of
Representatives. The following proceedings occurred:
Resolved, That a message be sent to the Senate by the
Clerk of the House informing the Senate that the House
of Representatives has adopted an amendment to article
V of the articles of impeachment heretofore exhibited
against Harold Louderback, United States district judge
for the northern district of California, and that the
same will be presented to the Senate by the managers on
the part of the House,
And, also that the managers have authority of file
with the Secretary of the Senate, on the part of the
House, any subsequent pleadings they shall deem
necessary.
Mr. Sumners, on behalf of the managers on the part of
the House, presented article V of the articles of
impeachment, as amended, and proceeded to read the
same; when,
On motion by Mr. Ashurst, and by unanimous consent,
The reading of the said article, as amended, was
dispensed with, and it was ordered to be printed for
the use of the Senate.\68\
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\68\ April 18, 1933, 73-1, Senate Journal, p. 318.
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Form of Putting Question on:
See ``Sequence of Events at the Close of a Trial,'' pages
86-93, the form for putting question on the articles of
impeachment.
Printing of:
On March 10, 1936, following the swearing-in of the
Senators and the organization of the trial of Halsted
L. Ritter, an order was agreed to to print the articles
of impeachment for the use of the Senate.\69\
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\69\ March 10, 1936, 74-2, Record, p. 3489.
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Votes and Procedure Thereon:
In the trial of Halsted Ritter in 1936, following the
conclusion of the final arguments on the part of the counsel
and the managers, the doors of the Senate were closed for
deliberation which continued throughout the day and into the
following day. At this closed session the following orders were
adopted providing for a vote on each of the articles of
impeachment, as well as giving each Senator opportunity to file
a written opinion thereon:
Ordered, That upon the final vote in the pending
impeachment of Halsted L. Ritter each Senator may,
within 4 days after the final vote, file his opinion in
writing, to be published in the printed proceedings in
the case.
Ordered, That upon the final vote in the pending
impeachment of Halsted R. Ritter, the Secretary shall
read the articles of impeachment separately and
successively, and when the reading of each article
shall have been concluded the Presiding Officer shall
state the question thereon as follows:
Senators, how say you? Is the respondent, Halsted L.
Ritter, guilty or not guilty?
Thereupon the roll of the Senate shall be called, and
each Senator as his name is called, unless excused,
shall arise in his place and answer ``guilty'' or ``not
guilty.'' \70\
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\70\ April 15, 16, 1936, 74-2, Senate Journal, p. 506.
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This resolution is the standard form now in use in
impeachment trials, and indeed in all of the trials, save one,
it has been the practice to secure the votes on each article in
numerical order and pronounce judgment separately on each
article.
In the trial of President Johnson, however, an order was
adopted that the Senate proceed first to article XI and then on
the other ten articles successively.\71\ Pursuant to this
order, the Chief Justice had the eleventh article read first
and the Chief Clerk proceeded to call the names of the Senators
in alphabetical order. When the rollcall was finished and an
insufficient number of Senators had voted to secure conviction,
Senator George Williams of Oregon moved that the Senate adjourn
from that day, May 16, 1868, until May 26th. Senator Hendricks
of Indiana made the point of order that since the Senate was
acting pursuant to a previous order providing for the
successive votes on the articles of impeachment, this motion to
adjourn to a day certain was not in order. The Chief Justice
upheld the point of order but Senator John Conness of
California appealed the decision of the Chair and the Chief
Justice was overruled by 24 to 30. At this point the question
recurred on the motion to adjourn to a day certain and the
motion carried.\72\
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\71\ May 16, 1868, 40-2, Senate Journal, p. 942.
\72\ May 16, 1868, 40-2, Senate Journal, p. 944.
---------------------------------------------------------------------------
Upon reconvening on the 26th day of May, the Senate changed
its previous order and voted to go to the second article of
impeachment. Following the vote on that article, the third
article was taken up and voted upon, at which point a motion to
adjourn sinedie was moved and carried. The Chief Justice,
before announcing the result of the vote, stated the judgment of the
Senate that the President of the United States was acquitted of the
charges.\73\
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\73\ May 26, 1868, 40-2, Senate Journal, pp. 948-51.
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Attendance of Senators at Impeachment Trial
The Senate may direct the Sergeant at Arms to request and
subsequently to compel the attendance of the absent Senators, a
quorum not having appeared on a call.\74\
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\74\ May 23, 1933, 73-1, Journal, p. 337, Record, p. 3971.
---------------------------------------------------------------------------
Briefs, When Submitted and Printed
Briefs are not submitted until after the managers and the
counsels for the respondent have made their opening statements
and have introduced witnesses. Once such briefs have been
filed, they are printed in the Record for the immediate use of
the Senators.
In the trial of Robert W. Archbald, the following order was
adopted for that purpose:
Ordered, That such briefs and citations of
authorities as have already been prepared by the
managers on the part of the House and counsel for the
respondent be filed with the Secretary and printed in
the Record for the immediate use of Senators.\75\
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\75\ December 5, 1912, 62-3, Senate Journal, p. 318.
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Chief Justice as Presiding Officer
Appeals:
See appeals, pages 35-36.
Form for Putting the Question on the Articles of Impeachment:
During the trial of Andrew Johnson, the Senate was unable
to agree on a form for putting the question on the articles of
impeachment, and thus the Chief Justice was allowed to decide
on the following form:
Mr. Senator ------, how say you? Is the respondent,
Andrew Johnson, President of the United States, guilty,
or not guilty, of a high misdemeanor, as charged in
this article of impeachment? \76\
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\76\ May 16, 1868, 40-2, Senate Journal, p. 943.
---------------------------------------------------------------------------
Present day practice provides for the Presiding Officer to
make the following statement: ``Senator, how say you? Is the
respondent ------ ------, guilty or not guilty?'' Whereupon the
Senate roll is called and each Senator answers simply
``guilty'' or ``not guilty.''
Vote by:
The Chief Justice has voted in the case of a tie in an
impeachment trial on two occasions. On March 31, 1868, a motion
was made that the Senate retire for consultation. The yeas were
25 and the nays were 25, and the Chief Justice voted in the
affirmative. At this point the Senate retired to its conference
chamber.
Various amendments to the impeachment rules were discussed
in this conference. As a result of the vote by the Chief
Justice, Senator Charles Sumner of Massachusetts moved ``That
the Chief Justice of the United States, presiding in the Senate
on the trial of the President of the United States, is not a
member of the Senate, and has no authority, under the
Constitution, to vote on any question during the trial, and he
can pronounce decision only as the organ of the Senate, with
its assent.'' \77\ This was defeated by a vote of 22 yeas to 26
nays. Senator Drake then proposed the following: ``It is the
judgment of the Senate that under the Constitution the Chief
Justice presiding over the Senate in the pending trial has no
privilege of ruling questions of law arising thereon, but that
all such questions should be submitted to a decision by the
Senate alone.'' \78\ This was defeated by 20 yeas to 30
nays.\79\
---------------------------------------------------------------------------
\77\ March 31, 1868, 40-2, Congressional Globe Supplement, p. 63.
\78\ Ibid.
\79\ Ibid.
---------------------------------------------------------------------------
Finally, the Senate agreed by a vote of 31 yeas to 19 nays
to the following amendment to its rules of impeachment:
The Presiding Officer of the Senate shall direct all
necessary preparations in the Senate Chamber, and the
presiding officer on the trial shall direct all the
forms of proceedings while the Senate are sitting for
the purpose of trying an impeachment, and all forms
during the trial not otherwise specially provided for.
And the presiding officer on the trial may rule all
questions 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: or he may, at his
option, in the first instance submit any such question
to a vote of the members of the Senate.\80\
---------------------------------------------------------------------------
\80\ Ibid. Rule VII, which describes the duties of the Presiding
Officer of the Senate in preparing the Chamber for trial, and the
duties of the Presiding Officer on the trial regarding the conduct of
proceedings and the ruling on questions of evidence and incidental
questions, was amended in three parts by the adoption of S. Res. 479,
99th Congress, 2d Session, on August 16, 1986. The first of these
amendments enumerates and emphasizes the kinds of rulings the Presiding
Officer is expected to make by adding to the words questions of
evidence: ``including, but not limited to, questions of relevance,
materiality, and redundancy.''
The second change was the insertion of the phrase ``without
debate'' in the second sentence. The intent of this change is to make
it clear that a decision by the Senate to overrule or sustain a ruling
of the Presiding Officer is not to be deliberated in open session. This
change would conform Rule VII with the other impeachment rules, e.g.
Rule XXIV, which provide that decisions on these and other matters
shall be ``without debate, except when the doors shall be closed for
deliberation.''
The third change to Rule VII was the deletion of the last sentence
which effectively required the Senate to arrive at its decisions by
voice vote unless the yeas and nays were demanded. The new language
allows the Senate to vote its decisions ``in accordance with the
Standing Rules of the Senate,'' that is by voice vote or by a division,
or, when requested by one-fifth of the members present, by the yeas and
nays.
---------------------------------------------------------------------------
At the end of the conference Senator Sumner raised the
issue of the right of the Chief Justice to vote on any question
during the trial, but objection was raised to the fact that
this was not germane to the matter on which the Senate had
retired to confer and a motion that the Senate return to the
Chamber without acting on Senator Sumner's proposal was agreed
to.\81\
---------------------------------------------------------------------------
\81\ March 31, 1868, 40-2, Congressional Globe Supplement, p. 63.
---------------------------------------------------------------------------
During the next day's proceedings, Senator Sumner again
raised the issue of the right of the Chief Justice to vote.
During the reading of the Journal, he proposed an amendment to
the Journal as follows: ``It appearing from the reading of the
Journal of yesterday that on a question where the Senate were
equally divided the ChiefJustice, presiding on the trial of the
President, gave a casting vote, it is hereby declared that, in the
judgment of the Senate, such vote was without authority under the
Constitution of the United States.'' \82\ This was rejected by a vote
of 21 yeas, 27 nays.\83\ Thus the Senate turned down each attempt to
prevent the Chief Justice from voting, and in a subsequent action
concerning a motion for adjournment, the vote being yeas 22, nays 22,
the Chief Justice voted in the affirmative, deciding the issue. This
vote was not challenged.\84\
---------------------------------------------------------------------------
\82\ Ibid.
\83\ Ibid.
\84\ April 2, 1868, 40-2, Congressional Globe Supplement, p. 92.
---------------------------------------------------------------------------
At the end of the trial of President Johnson, however,
another occasion arose on a motion to adjourn to a date certain
when the vote was tied 27 to 27 and the Chief Justice refrained
from voting.\85\
---------------------------------------------------------------------------
\85\ May 26, 1868, 40-2, Senate Journal, p. 948.
---------------------------------------------------------------------------
Witnesses Examined by:
On two occasions while the Senate was sitting for the
impeachment trial of Andrew Johnson, the Chief Justice, who was
presiding, examined witnesses on his own.\86\
---------------------------------------------------------------------------
\86\ April 1, 1868, 40-2, Congressional Globe Supplement, p. 72;
April 2, 1868, 40-2, Congressional Globe Supplement, p. 89.
---------------------------------------------------------------------------
Closed Doors
Senators do not debate in an impeachment trial unless the
Senate is sitting in closed session when debate is allowed as
provided in Rule XXIV.
During the trial of Halsted L. Ritter, a Senator moved that
the doors of the Senate be closed, which was agreed to. The
galleries were cleared and the respondent and his counsel
withdrew from the Chamber,\87\ and debate was in order.
---------------------------------------------------------------------------
\87\ April 15,1936, 74-2, Senate Journal, p. 506.
---------------------------------------------------------------------------
Commission to Take Deposition of a Witness
The Senate, and not the Presiding Officer, should determine
any matter on the issuance of a commission to take the
deposition of a witness in an impeachment trial.\88\
---------------------------------------------------------------------------
\88\ May 15, 1933, 73-1, Journal, p. 328, Record, p. 3397.
---------------------------------------------------------------------------
Committees in Impeachment Trials
Use of Committees by the Senate in Impeachment Trials:
Rule XI provides that the Presiding Officer, if the Senate
so orders, shall appoint a committee of Senators to receive
evidence and take testimony before an impeachment trial in the
Senate, if the entire trial is not held in the Senate.
During the trial of Judge Pickering, a committee was
appointed:
. . . to search the Journals and report precedents in
cases of impeachments; and that Messrs. Tracy, Bradley,
Baldwin, Wright, and Cocke, to whom it was referred on
the 14th of November last, to consider and report, if
any, what further proceedings ought to be held by the
Senate, respecting the impeachment of John Pickering,
by this committee.\89\
---------------------------------------------------------------------------
\89\ January 3, 1804, 8-1, Senate Journal, p. 332.
---------------------------------------------------------------------------
In the trial of Judge Peck in 1830, following the
impeachment at the bar of the Senate by two members of the
House of Representatives, the Senate proceeded to consider the
message from the House and resolved:
That it be referred to a select committee, to consist
of three members, to consider and report thereon.\90\
---------------------------------------------------------------------------
\90\ April 26, 1830, 21-1, Senate Journal, p. 269.
---------------------------------------------------------------------------
Likewise, in the case of Judge Archbald in 1912, following
the reading of the articles of impeachment and in order that
they be printed by the Senate, the articles were referred to a
special committee appointed by the President pro tempore,
pursuant to a resolution as follows:
Resolved, That the message of the House of
Representatives relating to the impeachment of Robert
W. Archbald be referred to a select committee, to
consist of five Senators, to be appointed by the
President pro tempore.
The President pro tempore appointed as the committee
Mr. Clark of Wyoming, Mr. Nelson, Mr. Dillingham, Mr.
Bacon, and Mr. Culberson.\91\
---------------------------------------------------------------------------
\91\ July 15, 1912, 62-2, Senate Journal, p. 628.
---------------------------------------------------------------------------
Committee Appointed to Receive Evidence:
In 1935, a resolution was adopted by the Senate to
authorize the appointment by the Presiding Officer of a
committee of 12 Senators to receive evidence and take testimony
in the trial of an impeachment.
On August 14, 1986, the Senate agrreed to Senate Resolution
481, ``to provide for the appointment of a committee to receive
and to report with respect to articles of impeachment against
Harry E. Claiborne.''
This measure states:
``Resolved, Pursuant to rule XI of the Rules of
Procedure and Practice in the Senate When Sitting on
Impeachment Trials, the Presiding Officer shall appoint
a committee of twelve Senators to perform the duties
and to exercise the powers provided for in the rule.
``Sec. 2. The Majority and Minority Leader shall each
recommend six Members to the Presiding Officer for
appointment to the committee.
``Sec. 3. Necessary expenses of the committee shall
be paid from the contingent fund of the Senate from the
appropriation account `Miscellaneous Items' upon
vouchers approved by the chairman of the committee.
``Sec. 4. The committee shall be deemed to be a
standing committee of the Senate for the purpose of
printing reports, hearings, and other documents for
submission to the Senate under rule XI.
``Sec. 5. The Secretary shall notify the House of
Representatives of this resolution.'' \92\
---------------------------------------------------------------------------
\92\ August 14, 1986, Congressional Record, p. S11673.
---------------------------------------------------------------------------
On August 16, 1986, the Senate agreed to changes in the
Senate Impeachment Rules. (S. Res. 479, 99th Cong., 2d
Session.)
The Committee report states:
Rule XI, which provides for the appointment of a
committee of Senators to receive evidence and to take
testimony is amended in two relatively minor
particulars. First, the committee substitutes the
phrase ``if the Senate so orders'' for ``upon the order
of the Senate'' relating to the utilization of the
committee device which was added to the rules in 1935.
The reason for this language change is to make it
doubly clear that when the committee device authorized
by the rule is desired, it must be ordered by the
Senate.
The Committee also removes the requirement that the
committee authorized by the rule be fixed at twelve
Senators. It was the consensus of the members that the
committee's composition should be left open and thus
allow the Senate to appoint members in accord with the
needs of the situation. (Senate Report 99-401: 99th
Cong., 2d Session.) \93\
---------------------------------------------------------------------------
\93\ August 16, 1986, Congressional Record, (for August 15, 1986)
pp. S11902-S11903.
---------------------------------------------------------------------------
Congress Must be in Session During Trial
During the trial of Secretary of War Belknap in 1876, the
Senate considered the issue of whether an impeachment trial had
to take place in the presence of the House of Representatives
and after some discussion decided ``that the impeachment can
only proceed while Congress is in session.'' \94\
---------------------------------------------------------------------------
\94\ June 19, 1876, 44-1, Senate Journal, p. 957.
---------------------------------------------------------------------------
Counsel for the Respondent
See also under ``Managers and Counsel.''
Assistants for the Counsel Allowed on the Floor During the Trial:
During the trial of Halsted L. Ritter, the counsel for the
respondent asked unanimous consent to have an assistant sit
with the counsel. There was no objection.\95\
---------------------------------------------------------------------------
\95\ Apri1 8, 1936, 74-2, Senate Journal, p. 497.
---------------------------------------------------------------------------
Improper Language by:
The presiding officer at an impeachment trial has exercised
authority to call counsel to order for using improper language.
On February 14, 1905, during the trial of Judge Charles
Swayne, Mr. Manager Henry W. Palmer offered to prove that the
respondent on the 28th of November, 1904, at the city of
Washington, D.C. voluntarily appeared before a subcommittee of
the House Judiciary Committee, not having been summoned as a
witness or otherwise, and voluntarily made a statement.
At this point Mr. John M. Thurston, of counsel for the
respondent, objected to the reading of the statement, saying:
Mr. President, standing here as objecting to this
offer, I repeat what I said a few days since about this
attempt to present to this court the statements made by
Judge Swayne while he was a witness before that
committee of the House of Representatives. The offer to
prove what he said before that committee is all that,
under any rule of practice that has ever prevailed in
any court, can be made. It has never been held that in
offering to prove what a witness had said somewhere
else a statement could be made in the offer of what he
had said somewhere else, because that would, by
indirection and by pettifogging, Mr. President, present
to the court, the judge, or the jury the statement of
what the evidence would show when it was really
admitted, if at all, and evidently in the expectation--
At this point Senator Pettus, of Alabama, intervened and
said:
Mr. President, I object to the word ``pettifogging''
being used in this court.
The Presiding Officer (Orville H. Platt, of Connecticut)
said:
The Presiding Officer thinks that the word ought not
to have been used.
Mr. Thurston then continued:
I apologize for the use of that word. I was not using
it with reference to the offer. I was saying that it
was a common custom in some courts to attempt to show
by a statement of this kind what a witness had said
somewhere else, when the attorneys making the offer
knew and understood perfectly well that the statement
itself would not be proper evidence to be introduced in
the case, and that an offer of this kind was and is an
attempt to present to a court evidence known to be
improper, prohibited by the statutes of the United
States, and its reading to the court in an offer must
necessarily be, and can only be, an attempt by
indirection to place in the record and before the
judges testimony that they know is not legal testimony
and ought not to be considered.
Now, Mr. President, I do not wish to reflect--and if
I have made any reflections upon these honorable
managers I withdraw them--I do not wish to reflect upon
them in this case, but I do say that in other cases and
in other courts where offers of this kind have been
made they have been necessarily made with the express
desire to place in the record before the court and the
jury a line of evidence that is prohibited by the law
of the land from being presented. We object both to the
offer to introduce the testimony and to the offer to
read the proposed testimony to this court. Mr.
President, we also protest against this manner of
presenting evidence by an offer to prove something.
The only proper way, in our judgment, if the managers
wish to produce this statement and have this court pass
upon its competency, is to put a witness on the stand
or to offer the record, to ask the question, or let the
record be objected to, and pass upon that. I do not
think it is proper for us, Mr. President--and the
occasion may arise in this case where it would be most
desirable for us, if it were proper--to offer to prove
a certain statement of fact that we do not believe can
be introduced in evidence if objected to upon the other
side. But, sir, feeling our responsibility here, we
will not attempt to offer before this court a statement
of anything, nor will we attempt to offer in this court
to prove facts setting it forth. What factswe have to
prove we will prove by records, or we will prove them by questions
directed to the witnesses presented in the court, and let the
objections, if any there be, be taken in the regular way and upon legal
lines.
Mr. Manager Palmer announced that he would hand the
statement to the court and let the court pass upon it.
Senator Bailey, of Texas, said:
Mr. President, while the Presiding Officer passes on
such questions in the first instance, Senators must
pass upon it finally, and they must know what is
offered before they can vote intelligently upon the
question. It is unprecedented to say that the court
shall not be permitted to bear what is offered before
passing upon the admissibility of it. * * * for my own
guidance, I would like to know exactly the question
before the court.
The Presiding Officer said:
It is in writing. The managers offer to prove that
the respondent on the 28th of November, 1904, in the
city of Washington, D.C., voluntarily appeared before a
subcommittee of the House Judiciary Committee, not have
been summoned as a witness or otherwise, and
voluntarily made the following statement. Then the
statement is recited.
No further demand was made for the reading of the
statement, and it was not read.\96\
---------------------------------------------------------------------------
\96\ February 14, 1905 58-3, Record, pp. 2536, 2537.
---------------------------------------------------------------------------
Motion to Strike Various Articles of Impeachment Made by:
In the trial of Halsted L. Ritter in 1936, following the
presentation of articles of impeachment in their amended form,
a motion was made by the counsel for the respondent to strike
either article I or article II on the basis that article II
contained all the charges and allegations of article I, and
thus required the respondent to defend himself twice on the
same issues.\97\ Note the following:
---------------------------------------------------------------------------
\97\ March 31, 1936, 74-2, Senate Journal, p. 482.
---------------------------------------------------------------------------
The counsel for the respondent presented a motion:
To strike article I or, in the alternative. To
require election as to article I and II and motion to
strike article VII.\98\
---------------------------------------------------------------------------
\98\ Ibid.
---------------------------------------------------------------------------
on the following grounds:
1. Article VII includes and embraces all the charges
set forth in articles I, II, III, IV, V, and VI.
2. Article VII constitutes an accumulation and
massing of all charges in preceding articles upon which
the Court is to pass judgment prior to the vote on
article VII, and the prosecution should be required to
abide by the judgment of the Senate rendered upon such
prior articles and the Senate ought not to countenance
the arrangement of pleading designed to procure a
second vote and the collection or accumulation of
adverse votes, if any, upon such matters.
3. The presentation in article VII of more than one
subject and the charges arising out of a single subject
is unjust and prejudicial to respondent.
4. In fairness and justice to respondent, the Court
ought to require separation and singleness of the
subject matter of the charges in separate and distinct
articles, upon which a single and final vote of the
Senate upon each article and charge can be had.\99\
---------------------------------------------------------------------------
\99\ March 31, 1936, 74-2, Senate Journal, p. 483.
---------------------------------------------------------------------------
The Chair considered that motion for several days \100\ and
then ruled that the motion was not well taken in that article I
alleged illegal and corrupt receipt of money and article II
alleged a conspiracy as to the means of receiving said money,
and thus were two entirely different bases for impeachment.
This ruling was submitted to the Senate for judgment and was
upheld by the Senate.\101\
---------------------------------------------------------------------------
\100\ March 31-April 3, 1936, 74-2, Senate Journal, p. 483.
\101\ April 3, 1936, 74-2, Senate Journal, p. 483.
---------------------------------------------------------------------------
The respondent also moved to strike article VII of the
impeachment articles on the basis that it included all the
charges set forth in articles I through VI, and that fairness
required that the charges be distinct and separate.\102\
---------------------------------------------------------------------------
\102\ March 31, 1936, 74-2, Senate Journal, p. 483.
---------------------------------------------------------------------------
Several days later the Presiding Officer submitted that
question to the Senate with the following statement:
His reason for so doing is that an impeachment
proceeding before the Senate, sitting as a Court, is
sui generis. partaking neither of the harshness and
rigidity of the criminal law nor of the civil
proceedings requiring less particularity.\103\
---------------------------------------------------------------------------
\103\ April 3, 1936, 74-2, Senate Journal, p. 484.
---------------------------------------------------------------------------
The Senate denied the motion to strike article VII.
Witness, Counsel for the Respondent Summoned as:
During the trial of Mr. Justice Chase in 1805, Luther
Martin, counsel for the respondent, was sworn and examined as a
witness on behalf of the respondent.\104\
---------------------------------------------------------------------------
\104\ February 15, 1805, 8-2, Senate Journal, p. 520.
---------------------------------------------------------------------------
Debate
Orders at the Trial:
A Senator may propose an order, but he may not explain or
debate it. Any debate in open session would have to occur
between the managers on the part of the House and the counsel
for the respondent.
During the trial of Secretary of War Belknap in 1876, a
Senator proposed an order fixing the time for further pleadings
on behalf of the respondent, which was discussed by the counsel
for the respondent and a manager on the part of the House of
Representatives. At this point, Senator Allen Thurman of Ohio
attempted to also debate the order but was reminded by the
President pro tempore that debate was not in order.\105\
---------------------------------------------------------------------------
\105\ June 1, 1876, 44-1. Record, vol. 4 pt. 7, p. 160.
---------------------------------------------------------------------------
Debate by Senators on any question is not allowed in open
session. Rule XXIV provides that all ``the orders and decisions
shall be voted on without debate.''
Under the rules governing impeachment trials, Senators are
not permitted to engage in colloquies,\106\ or to participate
in any argument.\107\
---------------------------------------------------------------------------
\106\ April 11, 1933, 73-1, Record, p. 1470.
\107\ May 16, 1933, 73-1, Journal, p. 329, Record, p. 3467.
---------------------------------------------------------------------------
A request to abrogate the rule requiring questions by
Members of the Senate during an impeachment trial to be in
writing,\108\ or that a member of the San Francisco bar be
permitted to sit with the House Managers to assist them in the
development of the facts in an impeachment trial,\109\ were
held not to be debatable.
---------------------------------------------------------------------------
\108\ See April 8, 1936, 74-2, Record, p. 5164.
\109\ May 15, 1933, 73-1, Journal, p. 326, Record, p. 3395.
---------------------------------------------------------------------------
Adoption of Senate Resolution 479, 99th Congress, 2d
Session, further clarified Rules VII and XIX regarding debate
and colloquy by Senators. Rule VII was changed by the insertion
of the phrase ``without debate'' in the second sentence. The
intent of this change is to make it clear that a decision by
the Senate to overrule or sustain a ruling of the Presiding
Officer is not to be deliberated in open session. This change
would conform Rule VII with the other impeachment rules, e.g.
Rule XXIV, which provide that decisions on these and other
matters shall be ``without debate, except when the doors shall
be closed for deliberation.'' The Senate added three new
sentences to Rule XIX, which read as follows: The parties or
their counsel may interpose objections to witnesses answering
questions propounded at the request of any Senator and the
merits of any such objection may be argued by the parties or
their counsel. Ruling on any such objection shall be made as
provided in Rule VII. It shall not be in order for any Senator
to engage in colloquy. August 16, 1986, Congressional Record
(for August 15, 1986, pp. S11902-S11903.)
Organizational Questions Prior to Trial and Debate Thereof:
When the articles of impeachment relating to Judge
Louderback were presented in 1933, it was moved by Senator
George Norris of Nebraska that further consideration of the
impeachment charges be deferred until 2:00 o'clock on the first
day of the first session of the 73rd Congress. Senator Henry
Ashurst of Arizona asked for recognition to debate the motion,
but the Vice President held that, inasmuch as the motion
related to a question of the Senate sitting as a court of
impeachment, it was not debatable.\110\ However, prior to the
trial of Judge English in 1926, a motion was made that the
trial commence on the 15th day of November. A point of order
was raised that the matter was not debatable. The Vice
President overruled the point of order with the following
statement:
---------------------------------------------------------------------------
\110\ March 3, 1933, 72-2, Record, p. 5473.
---------------------------------------------------------------------------
The Chair will state that in impeachment trials had
heretofore such questions have been considered as
debatable, and that Rule XXII,\111\ which refers to the
decision of questions without debate, has been held to
apply after the trial has actually commenced. The
Senate has always debated the question of the time at
which the trial should start, and the Chair is inclined
to hold that debate is in order on a question of this
sort.
---------------------------------------------------------------------------
\111\ This is now Rule XXIV.
---------------------------------------------------------------------------
The Chair will further state that in the future he
will regard Rule XXIII, in which it is stated that
``orders, and decisions shall be made, and had by yeas
and nays,'' as relating to the actual trial. The yeas
and nays will be ordered on the pending question
without demand, but in former trials of impeachments
the yeas and nays have been ordered on questions upon
the request of Senators present. Much time will be
saved if the inconsequential questions which come up
shall be decided in the ordinary methods by a viva voce
vote. On a question of the importance of the pending
one, the Chair holds that a yea-and-nay vote is
required without a demand from one-fifth of the Members
present.\112\
---------------------------------------------------------------------------
\112\ May 5, 1926, 69-1, Senate Journal, pp. 594-95.
---------------------------------------------------------------------------
Rule XXIII \113\ on debate was held not to apply to a
question arising during the organization for the trial of
Andrew Johnson by a ruling of the Chief Justice.\114\
---------------------------------------------------------------------------
\113\ Presently Rule XXIV.
\114\ March 6, 1868, 40-2, Congressional Globe, p. 1697.
---------------------------------------------------------------------------
Division of the Question
Article Not Divisible:
Senate Resolution 479 (99th Congress, 2d Session), agreed
to on August 16, 1986, changed Rule XXIII in several ways. The
Committee Report (Senate Report 99-401) states, in part:
``Rule XXIII, which deals generally with voting the
final question, is amended in several important ways. A
pair of new restrictions is added at the beginning of
the rule. These read as follows:
``An article of impeachment shall not be
divisible for the purpose of voting thereon at
any time during the trial. Once voting has
commenced on an article of impeachment, voting
shall be continued until voting has been
completed on all articles of impeachment unless
the Senate adjourns for a period not to exceed
one day or adjourns sine die.
``The portion of the amendment effectively enjoining
the division of an individual article into separate
specifications is proposed to permit the most judicious
and efficacious handling of the final question both as
a general matter and, in particular, with respect to
the form of the articles that proposed the impeachment
of President Richard M. Nixon. The latter did not
follow the more familiar pattern of embodying an
impeachable offense in an individual article but, in
respect to the first and second of those articles, set
out broadly based charges alleging constitutional
improprieties followed by a recital of transactions
illustrative or supportive of such charges. The wording
of Articles I and II expressly provided that a
conviction could be had thereunder if supported by
``one or more of the'' enumerated specifications. The
general view of the Committee at that time was
expressed by Senators Byrd and Allen, both of whom felt
that division of the articles in question into
potentially 14 separately voted specifications might
``be time consuming and confusing, and a matter which
could creategreat chaos and division, bitterness, and
ill will * * *. '' Accordingly, it was agreed to write into the
proposed rules language which would allow each Senator to vote to
convict under either the first or second articles if he were convinced
that the person impeached was ``guilty'' of one or more of the
enumerated specifications.
``The provision requiring the Senate to dispose of
the final question once it has commenced voting the
articles of impeachment or, alternatively, either
adjourn for 24 hours or without day, is intended to
prevent a recurrence of the incident during the Johnson
trial when the Senate having failed to convict on the
first article to be voted (No. 11) proceeded to adjourn
for fourteen days before considering the other
articles. Thereafter, when the Senate again failed to
convict on two of the remaining 10 articles, it
adjourned without day. Committee members were agreed
that such a course of action could have unsettling
consequences which should be avoided at all costs.''
Articles Of Impeachment:
The sixth article of impeachment was divided during the
trial of West Humphreys in 1862. The Senate was about to vote
on article VI of the articles of impeachment which read as
follows:
Article 6. That the said West H. Humphreys, in the
year of our Lord one thousand eight hundred and sixty-
one, within the State of Tennessee, and with intent to
subvert the authority of the government of the United
States, to hinder and delay the due execution of the
laws of the United States, and to oppress and injure
citizens of the United States, did unlawfully act as
judge of an illegally constituted tribunal within said
State, called the district court of the Confederate
States of America, and as judge of said tribunal last
named said West H. Humphreys, with the intent
aforesaid, then and there assumed and exercised powers
unlawful and unjust, to wit: In causing one Perez
Dickinson, a citizen of said State, to be unlawfully
arrested and brought before him, as judge of said
alleged court of said Confederate States of America,
and required him to swear allegiance to the pretended
government of said Confederate States of America; and
upon the refusal of said Dickinson so to do, the said
Humphreys, as judge of said illegal tribunal, did
unlawfully, and with the intent to oppress said
Dickinson, require and receive of him a bond,
conditioned that while he should remain within said
State he would keep the peace; and as such judge of
said illegal tribunal, and without authority of law,
said Humphreys then and there decreed that said
Dickinson should leave said State.
2. In decreeing within a said State, and as judge of
said illegal tribunal, the confiscation to the use of
said Confederate States of America of property of
citizens of the United States, and especially of
property of one Andrew Johnson and one John Catron.
3. In causing, as judge of said illegal tribunal, to
be unlawfully arrested and imprisoned within said State
citizens of the United States, because of their
fidelity to their obligations as citizens of the United
States, and because of their rejection of, and their
resistance to, the unjust and assumed authority of said
Confederate States of America.\115\
---------------------------------------------------------------------------
\115\ June 26, 1862, 37-2, Senate Journal, p. 900.
---------------------------------------------------------------------------
At this point a Senator requested a division of the
question and the article was divided into three parts with
separate votes being taken on each part. On the first section
he was found ``not guilty,'' and was found ``not guilty'' on
the second section, but on the third, two-thirds of the
Senators present voted him ``guilty'' and the President pro
tempore announced that he was therefore ``guilty'' as charged
under the sixth article.\116\
---------------------------------------------------------------------------
\116\ June 26, 1862, 37-2, Senate Journal, pp. 901-02.
---------------------------------------------------------------------------
Final Judgment:
In two trials, the question of final judgment was held to
be divisible, and division was requested.
In the trial of Robert W. Archbald, following a vote in
which conviction was obtained on five of the thirteen articles,
the following resolution was introduced, divided, and agreed
to, the first part by voice vote, and the second by yeas and
nays. The original text of the resolution was as follows:
Ordered, That the respondent, Robert W. Archbald,
circuit judge of the United States from the third
judicial circuit and designated to serve in the
Commerce Court, be removed from office and be forever
disqualified from holding and enjoying any office of
honor, trust, or profit under the United States.
On motion by Mr. Root, that the doors be closed.\117\
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\117\ January 13, 1913, 62-3, Senate Journal, p. 332.
---------------------------------------------------------------------------
The first part as divided was as follows:
Ordered, That the respondent, Robert W. Archbald,
circuit judge of the United States from the third
judicial circuit and designated to serve in the
Commerce Court, be removed from office.\118\
---------------------------------------------------------------------------
\118\ Ibid., p. 332.
---------------------------------------------------------------------------
The second part as divided was as follows:
And be forever disqualified from holding and enjoying
any office of honor, trust, or profit under the United
States.\119\
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\119\ January 13, 1913, 62-3, Senate Journal, p. 332.
---------------------------------------------------------------------------
In the trial of Halsted L. Ritter, the following order for
judgment was introduced:
The Senate hereby orders and decrees and it is hereby
adjudged that the respondent, Halsted L. Ritter, United
States district judge for the southern district of
Florida, be, and he is hereby, removed from office, and
that he be, and is hereby, forever disqualified to hold
and enjoy any office of honor, trust, or profit under
the United States, and that the Secretary be directed
to communicate to the President of the United States
and to the House of Representatives the foregoing order
and judgment of the Senate, and transmit a copy of same
to each.\120\
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\120\ April 17, 1936, 74-2, Record, p. 5606.
---------------------------------------------------------------------------
Following its introduction, a division was requested, and
while it was agreed that the order was subject to division, it
was also agreed that once divided the Senate would be voting
first on thequestion of removal from office, which had already
been accomplished, and therefore the order was withdrawn.
Evidence
Admissibility of:
The Presiding Officer can either rule on questions of
evidence directly or can submit them to the Senate in the first
instance for a decision, or once having ruled, his opinion is
subject to appeal.
When the judgment of the Senate is asked for, after the
Presiding Officer has ruled on a question of evidence, the form
is ``Is the evidence admissible?'' \121\ When the judgment of
the Senate is asked for in the first instance, the form of the
question is the same.\122\
---------------------------------------------------------------------------
\121\ February 14, 1905, 58-3, Record, p. 2540.
\122\ February 14, 1905, 58-3, Record, p. 2540.
---------------------------------------------------------------------------
In an argument over the admissibility of evidence, it is
not in order to read the evidence which has been objected
to.\123\ Furthermore, when evidence is being offered, its
presentation may not be interrupted by legislative business or
questions which are incidental to the progress of the
trial.\124\ Once a document has been offered and read as
evidence, there is still the possibility of raising an
objection to its admissibility as evidence.\125\
---------------------------------------------------------------------------
\123\ February 23, 1905, 58-3, Record, pp. 3165-66.
\124\ April 3, 1868, 40-2, Congressional Globe Supplement, p. 99.
\125\ April 2, 1868, 40-2, Congressional Globe Supplement, pp. 81-
82.
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Determination By Presiding Officer During Impeachment Trial
The role of the Presiding Officer during an impeachment
trial was further emphasized by changes to Rule VII, adopted by
the Senate on August 16, 1986 (S. Res. 479, 99th Congress, 2d
Session). The Committee Report states, in part:
``Rule VII, which describes the duties of the
Presiding Officer of the Senate in preparing the
Chamber for trial, and the duties of the Presiding
Officer on the trial regarding the conduct of
proceedings and the ruling on questions of evidence and
incidental questions, is amended in three parts. The
first of these amendments enumerates and emphasizes the
kinds of rulings the Presiding Officer is expected to
make by adding to the words questions of evidence:
`including, but not limited to, questions of relevance,
materiality, and redundancy.' '' (Senate Report 99-
401.)
Leading Questions Ruled Out:
Leading questions have been ruled out and witnesses were
admonished to observe established procedure.
On December 4, 1912, in the Senate trial of Judge Robert W.
Archbald, during the direction examination of a witness on
behalf of the House of Representatives, Mr. Worthington, a
counsel for the respondent, objected to a question propounded
by Mr. Manager Edwin Yates Webb and said:
One moment. I submit, Mr. President, we had as well
try this case with some appearance of conformity to the
rules of a court. That was a leading question, which
ought never to have been asked and should not be
allowed to be answered.
The President pro tempore ruled:
Counsel, as far as possible, will avoid leading
questions.
During the examination of the same witness, by Mr. Webb,
Mr. Worthington objected to a question asked the witness by the
manager as being a leading question. The witness, however,
answered the question. Note the following:
Mr. Worthington stated:
As the witness has already answered the question, for
the present purposes it is futile to proceed. I think
the witness should be cautioned, when objection is
made, not to answer a question until the Presiding
Officer or the Senate has ruled upon it.
The President Pro Tempore. That is a very proper
suggestion. The witness will be governed by that.
Hereafter when there is an objection to testimony the
witness will not reply until after the matter has been
passed upon.\125\a
---------------------------------------------------------------------------
\125\a December 4, 1912, 62-3, Record, pp. 98-99.
---------------------------------------------------------------------------
Presentation of, During Final Arguments, Out of Order:
During the trial of Andrew Johnson in 1868, one of the
managers on the part of the House of Representatives wished to
examine witnesses during his final arguments. The Chief Justice
responding to an objection from a Senator, said that it would
be necessary and proper to obtain an order of the Senate before
allowing evidence to be presented during the final
argument.\126\ Just such an order was obtained in 1805 in the
trial of Mr. Justice Chase to allow the testimony of a witness
during the final argument of the managers on the part of the
House.\127\
---------------------------------------------------------------------------
\126\ April 20, 1868, 40-2, Congressional Globe Supplement, p. 239.
\127\ February 25, 1805, 8-2, Senate Journal, p. 523.
---------------------------------------------------------------------------
Questions of, Submitted to Senate:
During the trial of Judge Archbald in 1912, the President
pro tempore of the Senate made the following statement
regarding the admissibility of evidence:
Before taking action in regard to this question the
Chair desires to make a statement to the Senate.
Anticipating that questions of the admissibility of
evidence would arise, the present occupant of the Chair
has examined former impeachment cases in order to
ascertain what was the practice of Presiding Officers
themselves in regard to deciding questions of this
character or of submitting them to the Senate. Upon
examination it is found in former impeachment cases
that very liberally, to say the least, the Presiding
Officer had availed himself of the privilege of
submitting the matter to the Senate. In the Andrew
Johnson impeachment case in particular, which was
presided over by the highest judicial officer in the
land, Chief Justice Chase, almost invariably every
question as to the admissibility of evidence was
submitted by him to the Senate for its determination.
While the present occupant of the chair is not averse
to taking responsibility in a matter that is allegedby
the counsel to be peculiarly vital to the case, he feels that the
matter should be submitted to the Senate. He is more inclined to that
course by the fact that if one single Senator differed from the
conclusion of the Chair he would have the right to have the vote taken
by the Senate. Therefore, in this case the present occupant of the
chair will submit to the Senate the question as to the admissibility of
the evidence.\128\
---------------------------------------------------------------------------
\128\ December 4, 1912, 62-3, Record, p. 106.
---------------------------------------------------------------------------
Floor Privileges Granted to Persons to Sit with House Managers
The Clerk of the Committee on the Judiciary of the House of
Representatives, by unanimous consent, was given permission to
sit with the managers on the part of the House during the
Louderback and the Ritter impeachment trials.\129\ Likewise, a
special agent of the Federal Bureau of Investigation and an
assistant to the counsel for the respondent were granted floor
privileges during the Ritter impeachment trial.\130\
---------------------------------------------------------------------------
\129\ May 15, 1933, 73-1, Journal, p. 326, Record, p. 3395; April
8, 1936, 74-2, Journal, p. 497, Record, p. 5132.
\130\ April 8, 1936, 74-2, Journal, p. 497, Record, p. 5132.
---------------------------------------------------------------------------
Galleries
Decorum, Cleared to Maintain:
At the conclusion of the address by the counsel for
President Johnson, the following occurred:
As Mr. Manager Bingham concluded there were
manifestations of applause in different portions of the
galleries, with cheers.
The Chief Justice. Order! Order! If this be repeated
the Sergeant-at-Arms will clear the galleries.
This announcement was received with laughter and
hisses by some persons in the galleries, while others
continued the cheering and clapping of hands.
Mr. Grimes. Mr. Chief Justice, I move that the order
of the court to clear the galleries be immediately
enforced.
The motion was agreed to.
The Chief Justice. The Sergeant-at-Arms will clear
the galleries. (Hisses and cheers and clapping of hands
in parts of the galleries.) If the offense be repeated
the Sergeant-at-Arms will arrest the offenders.\131\
---------------------------------------------------------------------------
\131\ May 6, 1868, 40-2, Congressional Globe Supplement, p. 406.
---------------------------------------------------------------------------
Tickets to, During the Trial of President Andrew Johnson:
On March 10, 1869, the following order was adopted
regarding the admission of persons to the Senate during the
trial of President Johnson:
Ordered, First. That during the trial of the
impeachment now pending no persons besides those who
now have the privilege of the floor, and clerks of the
standing committees of the Senate, shall be admitted to
that portion of the Capitol set apart for the use of
the Senate and its officers, except upon tickets to be
used (sic) [issued?] by the Sergeant-at-Arms. The
number of tickets shall not exceed one thousand.
Tickets shall be numbered and dated, and be good only
for the day on which they are dated.
Second. The portion of the gallery set apart for the
diplomatic corps shall be exclusively appropriated to
it, and forty tickets of admission thereto shall be
issued to the Baron Gerolt for the foreign legations.
Third. Four tickets shall be issued to each senator;
four tickets each to the Chief Justice of the United
States and the Speaker of the House of Representatives;
two tickets to each member of the House of
Representatives; two tickets each to the associate
justices of the Supreme Court of the United States; two
tickets each to the chief justice and associate
justices of the supreme court of the District of
Columbia; two tickets to the chief justice and each
judge of the Court of Claims; two tickets to each
cabinet officer, two tickets to the General commanding
the army; twenty tickets to the private Secretary of
the President of the United States, for the use of the
President; and sixty tickets shall be issued by the
President pro tempore of the Senate to the reporters of
the press. The residue of the tickets to be issued
shall be distributed among the members of the Senate in
proportion to the representation of their respective
States in the House of Representatives, and the seats
now occupied by the senators shall be reserved for
them.\132\
---------------------------------------------------------------------------
\132\ March 10, 1868, 40-2, Journal, pp. 808-09.
---------------------------------------------------------------------------
House of Representatives
Attendance of Members at Trial:
On March 20, 1868, the House of Representatives agreed to
the following resolution:
Resolved, That on the days when the Senate shall sit
for the trial of the President upon the articles of
impeachment exhibited by the House of Representatives,
the House, in Committee of the Whole, will attend with
the managers at the bar of the Senate at the hour named
for the commencement of the proceedings.\133\
---------------------------------------------------------------------------
\133\ March 20, 1868, 40-2, House Journal, pp. 549-50.
---------------------------------------------------------------------------
This prompted the following message from the Senate:
. . . the Senate is in its Chamber and ready to
proceed on the trial of Andrew Johnson, President of
the United States, and that seats are provided for the
accommodation of the Members.\134\
---------------------------------------------------------------------------
\134\ March 23, 1868, 40-2, House Journal, p. 561.
---------------------------------------------------------------------------
In the Belknap case, however, the House was represented by its
managers only.\135\
---------------------------------------------------------------------------
\135\ April 17, 1876, 44-1, House Journal, p. 814.
---------------------------------------------------------------------------
Notification of Each Day's Sitting by the Senate:
The Senate sitting as a court of impeachment has on
occasion issued orders that each day the House of
Representatives benotified that it is proceeding with the
impeachment trial. For example, see the following order adopted during
the trial of Judge Peck:
Ordered, That the Secretary notify the House of
Representatives, from day to day, that the Senate is
sitting as a high court of impeachment for the trial of
James H. Peck, judge of the district court of the
United States for the district of Missouri.\136\
---------------------------------------------------------------------------
\136\ March 24, 1830, 21-2, Senate Journal, p. 329.
---------------------------------------------------------------------------
Journal
Rule IV, paragraph 1, of the Legislative Rules of the
Senate, provides for a separate Journal in impeachment trials
as follows:
The legislative, the executive, the confidential
legislative proceedings, and the proceedings when
sitting as a Court of Impeachment, shall each be
recorded in a separate book.
Leave To Print Opinions Granted
Senators, by order to the Senate, were granted permission
in the Louderback trial to file opinions in writing ``within 2
days after the final vote,'' for publication in the printed
proceedings of the case.\137\
---------------------------------------------------------------------------
\137\ May 24, 1933, 73-1, Journal, p. 339, Record, p. 4083.
---------------------------------------------------------------------------
Legislative Business Permitted To Interrupt Trial
On April 8, 1936, during the trial of Halsted L. Ritter,
the Majority Leader, Senator Joseph Robinson, of Arkansas,
asked unanimous consent to interrupt the impeachment
proceedings in order that a message might be received from the
House of Representatives and ``that the Senate proceed with the
consideration of legislative business.'' There was no
objection.\138\
---------------------------------------------------------------------------
\138\ April 8, 1936, 74-2, Record, p. 5129.
---------------------------------------------------------------------------
Likewise, on April 15, 1936, Senator Robinson, of Arkansas,
obtained unanimous consent to temporarily suspend the
impeachment proceedings to allow the Senate to receive a
message from the House of Representatives.\139\
---------------------------------------------------------------------------
\139\ April 15, 1936, 74-2, Record, p. 5505.
---------------------------------------------------------------------------
During the trial of Secretary of War William Belknap, the
Senate interrupted its impeachment proceedings to receive a
message from the House of Representatives.\140\
---------------------------------------------------------------------------
\140\ July 10, 1876, vol. 4, part 7, 44-1, Record, p. 230.
---------------------------------------------------------------------------
During the same trial, a Senator asked that the impeachment
proceedings might be suspended in order to make a report from a
committee of conference and unanimous consent was granted for
that purpose.\141\
---------------------------------------------------------------------------
\141\ July 19, 1976, vol. 4, part 7, Record, p. 282.
---------------------------------------------------------------------------
A Senator may not of right, however, call up legislative
business during impeachment proceedings. During the trial of
Andrew Johnson in 1868, Senator Henry Anthony of Rhode Island
proposed to call up for consideration a matter of legislative
business, whereupon the Chief Justice said:
It is not in order to call up any business transacted
in legislative session.\142\
---------------------------------------------------------------------------
\142\ April 3, 1868, 40-2, Congressional Globe Supplement, p. 99.
---------------------------------------------------------------------------
Lie Over One Day, Orders
During the trial of Andrew Johnson, early in the trial, the
Chief Justice ruled that a proposed order must lie over one day
for consideration pursuant to the then existing Senate
legislative rules.\143\
---------------------------------------------------------------------------
\143\ April 11, 1868, 40-2, Senate Journal, p. 887.
---------------------------------------------------------------------------
At the close of the trial, however, when a motion was made
to rescind the order of the Senate concerning the method of
voting on the articles of impeachment, the Chief Justice again
ruled that a single objection would force the resolution to lie
over one day, and his ruling was overturned by a vote of 29 to
25.\144\
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\144\ May 26, 1868, 40-2, Senate Journal, p. 946.
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Managers and Counsel
Appearance of:
After trial of an impeachment had proceeded for several
days, the formality of announcement by the Doorkeeper of
appearance in the Chamber of the managers and the respondent
was by consent dispensed with.
On July 29, 1912, at the opening of the trial of the
impeachment of Robert W. Archbald, the Doorkeeper of the Senate
announced formally the appearance of the respondent and the
managers on the part of the House of Representatives.\145\
---------------------------------------------------------------------------
\145\ July 29, 1912, 62-2, Record, p. 9795.
---------------------------------------------------------------------------
This ceremony continued to be observed each day until
December 3, 1912, when Mr. Henry D. Clayton, of the managers on
the part of the House of Representatives, suggested:
Mr. President, if it is agreeable to the Senate
sitting as a Court of Impeachment, hereafter the
managers on the part of the House of Representatives
will appear without the formality of an announcement.
To which Mr. Worthington, of counsel, on behalf of the
respondent, added:
I presume that might apply. Mr. President, to the
counsel for the respondent and to the respondent
himself.
The President pro tempore said:
The Chair will give proper direction in that regard.
Proper order will be given in the premises.
The appearance of the managers and the respondent was not
thereafter announced.\146\
---------------------------------------------------------------------------
\146\ December 3, 1912, 62-3, Record, p. 20.
---------------------------------------------------------------------------
Position in Senate Chamber During Examination of Witnesses:
The Senate prefers that managers and counsel, in examining
witnesses in an impeachment trial, shall stand in the center
aisle. But generally their posture and position have been left
to their own judgment and preference.
On February 15, 1905, in the trial of Judge Charles Swayne,
the Chair suggested that the managers in examining witnesses
should stand in the center aisle of the Senate Chamber, near
the rear row of seats, so that the answers of witnesses might
be heard readily by the Senators.
Later in the trial, however, Mr. Anthony Higgins, a counsel
for the respondent, insisted that he must stand by the table in
examining witnesses, as he needed to consult certain
documents.\147\
---------------------------------------------------------------------------
\147\ February 15, 1905, 58-3, Record, pp. 2615, 2620.
---------------------------------------------------------------------------
Generally speaking, however, the managers and counsel stood
in the center aisle while conducting the examination of
witnesses during that trial.
On December 4, 1912, in the trial of Judge Archbald, Mr.
Worthington, a counsel for the respondent, inquired:
Mr. President, may I ask a question? The practice
differs. In some courts it is required that counsel
examining a witness shall stand: but it is not
customary where I have been; and I presume it is a
matter about which the examining counsel or manager may
use his judgment.
The President Pro Tempore. Absolutely, on both sides.
The managers and counsel may assume such posture as
they prefer.\148\
---------------------------------------------------------------------------
\148\ December 4, 1912, 62-3, Record, p. 98.
---------------------------------------------------------------------------
On the following day, in concluding the examination of a
witness, Mr. Edwin Yates Webb, a manager on the part of the
House of Representatives, said:
It has been suggested that the few remaining
questions which I am to ask this witness may be heard
more distinctly by standing at this point in the
Chamber.
Mr. Webb then concluded the examination standing in the
center aisle.\149\
---------------------------------------------------------------------------
\149\ December 5, 1912, 62-3, Record, p. 152.
---------------------------------------------------------------------------
Proposals of, Denied:
The Senate on various occasions had declined the managers
and counsel for the respondent their proposals. Only two
examples are cited below:
In the Belknap trial, after a motion had been submitted by
Mr. Manager Lor, Mr. Matt. H. Carpenter, a counsel for the
respondent offered this motion:
That the further hearing and trial of this
impeachment of William W. Belknap be continued to the
first Monday of December next.
In argument supporting the motion the counsel for the
respondent urged that in the existing political excitement a
fair trial was not likely to result. The precedents of the
Blount and Peck impeachments were cited to justify the
postponement.
The Senate having retired in closed session for
consultation (which debates were not public nor reported),
Senator Edmunds moved that the motion for postponement be
denied.
Senator Sherman, of Ohio, moved to amend by substituting
the following:
That the President pro tempore ask the managers if
they desire to be heard on the pending motion of Mr.
Carpenter, of counsel for respondent.
This motion was rejected by 28 yeas to 31 nays.
Senator Edmunds' motion, that the request for a
postponement be not granted, was agreed to, 59 yeas to 0 nays.
Thereupon the Senate returned to their Chamber and the
President pro tempore said:
The Presiding Officer is directed to state to the
counsel for the respondent that their motion is denied.
On another occasion during the same trial, the Senate
overruled the motion of the managers that the evidence on the
question of the jurisdiction of the Senate in the Belknap case
be given before the arguments relating thereto.\150\
---------------------------------------------------------------------------
\150\ April 27, 1976, 44-1, Senate Journal, pp. 920-23; Record of
trial, pp. 10-15.
---------------------------------------------------------------------------
Managers on the Part of the House
See also under ``Managers and Counsel.''
Assistants Allowed Floor Privileges:
During the trial of Halsted L. Ritter, the managers on the
part of the House asked unanimous consent to have an assistant
sit with the managers. There was no objection.\151\
---------------------------------------------------------------------------
\151\ April 8, 1936, 74-2, Senate Journal, p. 497.
---------------------------------------------------------------------------
During the trial of Judge Louderback in 1933, the managers
on the part of the House were granted permission by a vote of
the Senate to have the Clerk of the House Committee on the
Judiciary and a private member of the Bar to sit with them on
the Senate floor.\152\
---------------------------------------------------------------------------
\152\ May 15, 1933, 73-1, Record, p. 3394; May 15, 1933, 73-1,
Senate Journal, p. 326.
---------------------------------------------------------------------------
Decline to Answer Senator's Question:
During the trial of Andrew Johnson, in response to a broad
question as to what was going to be proved and when, one of the
House managers said it was not his duty to answer so general a
question,\153\ and the question went unanswered.
---------------------------------------------------------------------------
\153\ April 1, 1886, 40-2, Congressional Globe Supplement, pp. 70-
71.
---------------------------------------------------------------------------
Objections to Senators' Questions:
During the trial of Andrew Johnson, the Chief Justice
upheld the right of the managers to object to a question
propounded by a Senator with the following statement:
When a member of the court propounds a question, it
seems to the Chief Justice that it is clearly within
the competency of the managers to object to the
question being put and state the grounds for that
objection, as a legal question. It is not competent for
the managers to object to a member of the court asking
a question; but after the question is asked, it seems
to the Chief Justice that it is clearly competent for
the managers to state their objections to the questions
being answered.\154\
---------------------------------------------------------------------------
\154\ April 13, 1868, 40-2, Congressional Globe Supplement, pp.
169-70.
---------------------------------------------------------------------------
On another occasion the Senate decided that it might allow
questions from a Senator to a witness even though both the
managers and the counsel for the respondent objected.\155\
---------------------------------------------------------------------------
\155\ July 11, 1876, 44-1, Senate Journal, p. 973.
---------------------------------------------------------------------------
Selection of by House:
The form for the selection of managers on the part of the
House of Representatives in an impeachment trial has varied.
For example,in the trial of West Humphreys the managers were
appointed by the Speaker of the House and in his appointments all but
one selected belonged to the majority party.\156\
---------------------------------------------------------------------------
\156\ May 20, 1862, 37-2, House Journal, pp. 717-718.
---------------------------------------------------------------------------
In the trial of Charles Swayne, the Speaker of the House
was authorized to appoint seven managers, four of whom belonged
to the majority party, and three to the minority. Five of seven
were members of the Judiciary Committee.\157\
---------------------------------------------------------------------------
\157\ January 21, 1905, 58-3, House Journal, p. 1202.
---------------------------------------------------------------------------
In other cases, the managers have been chosen by ballot.
This was done in the Belknap case,\158\ the Blount case,\159\
the Pickering case,\160\ the Chase case,\161\ the Peck
case,\162\ and the Johnson case.\163\ The most recent practice
has been to adopt a resolution in the House of Representatives
naming the managers on the part of the House. For example, the
following resolution was adopted in 1933 in the trial of Judge
Louderback:
---------------------------------------------------------------------------
\158\ 30, 1876, 44-1, House Journal, pp. 696-703.
\159\ January 30, 1798, 5-2, House Journal, p. 154.
\160\ December 30, 1803, 7-2, House Journal, p. 507.
\161\ December 5, 1804, 8-2, House Journal, pp. 44.
\162\ May 1, 1830, 21-1, House Journal, pp. 591-96.
\163\ March 2, 1868, 40-2, House Journal, pp. 450-51.
---------------------------------------------------------------------------
Resolved, That Hatton W. Sumners, Gordon Browning,
Malcolm C. Tarver, Fiorello H. LaGuardia, and Charles
I. Sparks, Members of this House, be, and they are
hereby, appointed managers to conduct the impeachment
against Harold Louderback, United States district judge
for the northe district of California; and said
managers are hereby instructed to appear before the
Senate of the United States and at the bar thereof in
the name of the House of Representatives and of all the
people of the United States to impeach the said Harold
Louderback of misdemeanors in office and to exhibit to
the Senate of the United States the articles of
impeachment against said judge which have been agreed
upon by the House; and that the said managers do demand
the Senate take order for the appearance of said Harold
Louderback to answer said impeachment, and demand his
impeachment, conviction, and removal from Office.\164\
---------------------------------------------------------------------------
\164\ February 27, 1933, 72-2, Record, p. 5177.
---------------------------------------------------------------------------
In the trial of Judge Ritter in 1936, the form of the
resolution was as follows:
Resolved, That Hatton W. Sumners, Randolph Perkins,
and Sam Hobbs, Members of this House, be, and they are
hereby, appointed managers to conduct the impeachment
against Halsted L. Ritter, United States district judge
for the southern district of Florida; that said
managers are hereby instructed to appear before the
Senate of the United States and at the bar thereof in
the name of the House of Representatives and of all the
people of the United States to impeach the said nlcted
L. Ritter of high crimes and misdemeanors in office and
to exhih it to the Senate of the United States the
articles of impeachment against said judge which have
been agreed upon by this House; and that the said
managers do demand that the Senate take order for the
appearance of said Halsted L. Ritter to answer said
impeachment, and demand his impeachment, conviction,
and removal from office.\165\
---------------------------------------------------------------------------
\165\ House Resolution 439, 74-2, March 6, 1936.
---------------------------------------------------------------------------
Stand at Desk in Front of Chair to Read Articles of Impeachment:
On March 10, 1936, following the first appearance of the
managers in the trial of Halsted L. Ritter, the Vice President,
John Nance Garner, made the following statement:
The Vice President. Mr. Manager Hobbs will proceed,
and the Chair will take the liberty of suggesting that
he stand at the desk in front of the Chair, as from
that position the Senate will probably be able to hear
him better.
The manager took the place suggested by the Vice
President.\166\
---------------------------------------------------------------------------
\166\ March 10, 1936, 74-2, Record, pp. 34886.
---------------------------------------------------------------------------
Motions and Orders
Lie Over One Day:
See ``Lie Over One Day, Orders.''
Reduced to Writing:
Rule XIX of the Senate Rules of Impeachment provides that
all motions and orders proposed by a Senator except to adjourn
shall be reduced to writing.
Oaths to Senators
Form of, Given Each Senator:
The form of oath administered to each Senator, as set forth
under Rule XXV, is as follows:
I solemnly swear (or affirm, as the case may be) that
in all things appertaining to the trial of the
impeachment of ------ ------, now pending, I will do
impartial justice according to the Constitution and
laws: So help me God.
Records Kept of Senators Taking Oaths After Trial Begins:
On March 12, 1936, during the trial of Halsted Ritter, it
was announced that it was the duty of the Journal Clerk to keep
the names of Senators who had taken the oath since Senators
took the oath en bloc and there would be no other record.\167\
---------------------------------------------------------------------------
\167\ March 12, 1936, 74-2, Record, p. 3646.
---------------------------------------------------------------------------
Senators Appearing Late, Take Oath
In the trial of Secretary of War Belknap in 1876, Senator
James Alcorn of Mississippi appeared for the first time on May
15th; the trial had begun on April 5th. Nevertheless, the
Presiding Officer adminitered the oath to Senator Alcorn and he
took his place in the Senate.\168\
---------------------------------------------------------------------------
\168\ May 15, 1876, 44-1, Senate Journal, p. 933.
---------------------------------------------------------------------------
Rule III of the impeachment rules provides in part as
follows:
. . . the Presiding Officer shall administer the oath
hereinafter provided to the members of the Senate then
present and to the other members of the Senate as they
appear, whose duty it shall be to take the same.
Senators Taking Oath After Trial Begins Do Not Take It in Legislative
Session:
On March 12, 1936, during the conduct of regular
legislative business and prior to the hour of 1 o'clock, at
which time the Senate would resolve itself into a court of
impeachment, the following occurred:
Mr. McNary. Mr. President, I am advised that the
junior Senator from Vermont (Mr. Gibson) desires to
take the oath as a juror in the impeachment
proceedings.
The Vice President. After a thorough survey of the
situation, the best judgment of the Chair is that
Senators who have not heretofore taken the oath as
jurors of the court should take it after the Senate
resolves itself into a court; all Senators who have not
as yet taken the oath as jurors will take the oath at
that time.169
---------------------------------------------------------------------------
\169\ March 12, 1936, 74-2, Record, p. 3641.
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Opening Statements
Adoption of the Usual Order:
On December 3, 1912, during the trial of Robert Archbald,
the Senate adopted an order on opening statements, which form
has been used in other trials, namely:
Ordered, That the opening statement on behalf of the
managers shall be made by one person, to be immediately
followed by one person who shall make the opening
statement on behalf of the respondent.170
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\170\ December 3, l912, 62-3, Record, p. 20.
---------------------------------------------------------------------------
An identical order with regard to opening statements was
adopted during the trial of Halsted L. Ritter in
1936.171
---------------------------------------------------------------------------
\171\ April 6, 1936, 74-2, Senate Journal, p. 494.
---------------------------------------------------------------------------
Mr. Loan. I send to the desk an order and ask for its
adoption.
The Vice President. The clerk will read the proposed
order.
The legislative clerk read as follows:
Ordered, That the opening statement on the part of
the managers shall be made by one person, to be
immediately followed by one person who shall make the
opening statement on behalf of the respondent.
The Vice President. Is there objection to the order?
The Chair hears none, and the order is
entered.172
---------------------------------------------------------------------------
\172\ April 6, 1936, 74-2, Record, p. 4971.
---------------------------------------------------------------------------
During the trial of Judge Louderback in 1933, an order was
adopted providing that the opening statement on behalf of the
managers and on behalf of the respondent shall each be made by
one person.173
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\173\ May 15, 1933, 73-1, Senate Journal, p. 326.
---------------------------------------------------------------------------
Limitations On:
The opening address of an impeachment trial is for the
purpose of outlining what is expected to be proved. It is not
for the purpose of introducing evidence to substantiate the
charges.
During the trial of Judge Swayne in 1905, the managers on
the part of the House twice had to be cautioned by the
Presiding Officer upon objection of the counsel for the
respondent to refrain from introducing evidence in their
opening statements.174
---------------------------------------------------------------------------
\174\ February 10, 1905, 58-3, Record, pp. 2232-33.
---------------------------------------------------------------------------
During the same trial, while the counsel for the respondent
was making his opening statement, he asked the Secretary to
read extracts from a number of decisions of the Supreme Court
of the United States. During the reading of these extracts, the
Presiding Officer interrupted to make the point that the
opening address should be confined to a statement of the issues
raised in the case and what the parties propose to prove. It
should not include an extended argument on the whole case and
should be concluded quickly.175
---------------------------------------------------------------------------
\175\ February 21, 1905, 58-3, Record, p. 2977.
---------------------------------------------------------------------------
The trial of Robert Archbald in 1912 initiated a new
procedure on opening statements in which the opening statement
for the respondent was made at the beginning of the case
instead of at the close of testimony on behalf of the managers.
On December 3, 1912, Mr. Worthington, counsel for the
respondent in the impeachment trial of Robert Archbald, made
the following statement:
Mr. President and Senators, for the first time in an
impeachment trail in this tribunal the opening
statement for the respondent is to be made at the
beginning of the case instead of at the close of the
testimony on behalf of the managers. We have desired to
do the testimony on behalf of the managers. We have
desired to do this and are doing it with the
acquiescence of the honorable managers for two reasons.
One is that the Members of the Senate may know when the
introduction of testimony is going on what are the
questions of fact in dispute. The other is that
Senators may know from the beginning what we rely upon
as the law of the case.176
---------------------------------------------------------------------------
\176\ December 3, 1912, 62-3, Record, p. 26.
---------------------------------------------------------------------------
Orders and Decisions
Rule XXIV, which deals with voting on orders and decisions
and the procedure for going behind closed doors in order to
deliberate these and other matters, was amended to incorporate
the unanimous-consent procedure added to Rule XX by the
adoption of Senate Resolution 479 (99th Congress, 2d Session)
on August 16, 1986. The committee Report states: ``Since many
orders and decisions are believed to involve noncontroversial
matters, it is the Committee's belief that they may be
dispensed with without objections. However, in the event of
objection, the yeas and nays may be had.'' Under the present
rule ``All orders and decision shall be made and had by yeas
and nays.'' In place of this language the Committee substitutes
``All orders and decisions may be acted upon without objection,
or if objection is heard, the orders and decisions shall be
voted on without debate `by yeas and nays' ''. (Senate Report
99-401).
See also: ``Motions and Orders,'' ``Reduced to Writing,''
and ``Lie Over One Day, Orders.''
Papers Filed as Euidence Returned to District Court
In the Louderback trial, the Senate, by order, directed
certain original papers filed as evidence returned to the
United States District Court for the Northern District of
California.177
---------------------------------------------------------------------------
\177\ May 25, 1933, 73-1, Journal, p. 200, Record, p. 4142.
---------------------------------------------------------------------------
Points of Order
When one point of order is pending during an impeachment
trial, a second point of order cannot be made until the first
is disposed of.178
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\178\ March 6, 1868, 42, Senate Journal, pp. 810-11.
---------------------------------------------------------------------------
Presiding Officer
Decisions Made by, During Trial:
During an impeachment trial the Presiding Officer decides
on all forms not otherwise specifically provided for in Rule
VII of the Rules of Procedure and Practices in an Impeachment:
VII. The Presiding Officer of the Senate shall direct
all necessary preparations in the Senate Chamber, and
the Presiding Officer on the trial shall direct all the
forms of proceedings while the Senate is sitting for
the purpose of trying an impeachment, and all forms
during the trial not otherwise specially provided for.
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. Upon all such
questions the vote shall be taken in accordance with
the Standing Rules of the Senate.
This rule is in substance similar to the original rule adopted
in 1805 during the trial of Judge Samuel Chase. The principal
change was in the elimination of the word ``court'' during the
1868 trial of Andrew Johnson.
Rule VII was amended in three parts by the adoption of
Senate Resolution 479, 99th Congress, 2d Session, on August 16,
1986. The first of these amendments enumerates and emphasizes
the kinds of rulings the Presiding Officer is expected to make
by adding to the words ``questions of evidence'' ``including,
but not limited to, questions of relevance, materiality, and
redundancy.''
The second change was the insertion of the phrase ``without
debate'' in the second sentence. The intent of this change is
to make it clear that a decision by the Senate to overrule or
sustain a ruling of the Presiding Officer is not to be
deliberated in open session. This change conforms Rule VII with
the other impeachment rules, e.g. Rule XXIV, which provide that
decisions on these and other matters shall be ``without debate,
except when the doors shall be closed for deliberation.''
The third change to Rule VII is the deletion of the last
sentence which effectively required the Senate to arrive at its
decisions by voice vote unless the yeas and nays were demanded.
The new language allows the Senate to vote its decisions ``in
accordance with the Standing Rules of the Senate,'' that is, by
voice vote or by a division, or, when requested by one-fifth of
the members present, by the yeas and nays. (Senate Report 99-
401: 99th Congress, 2d Session.)
Duty to Expedite Trial:
On one occasion the Presiding Officer felt it his duty to
admonish the managers and counsel not to waste time. See the
following:
While the Presiding Officer makes no criticism on the
course of the examination and cross-examination, he
desires to say that the time of the Senate is very
precious, and he hopes that there will be as little
time taken by immaterial questions, either by the
managers or by counsel, as possible, and that we may
get along with this case.179
---------------------------------------------------------------------------
\179\ February 11, 1905, 58-3, Record, p. 2625.
---------------------------------------------------------------------------
Forms of Addressing, by Managers and Counsel:
Both the managers and the counsel use the form of address
``Mr. President and Senators,'' 180 or simply ``Mr.
President.''181
---------------------------------------------------------------------------
\180\ This was the form used in the Belknap trial.
\181\ This form was used in the trial of Willian Blount.
---------------------------------------------------------------------------
When the Chief Justice is the Presiding Officer, he can be
addressed either as Mr. President or Mr. Chief
Justice.182
---------------------------------------------------------------------------
\182\ These terms were used interchangeably in the trial of Andrew
Johnson.
---------------------------------------------------------------------------
Both the managers on the part of the House and the counsel
for the respondent are required to rise and address the Chair
before speaking.183
---------------------------------------------------------------------------
\183\ July 7, 1876, 44-1, Vol. 4, Part 7, Record, pp. 190-91.
---------------------------------------------------------------------------
Naming of Presiding Officer:
During the trial of Judge Louderback in 1933, the following
order was adopted to provide for a Presiding Officer in the
absence of the Vice President or the President pro tempore:
Ordered, That during the trial of the impeachment of
Harold Louderback, United States district judge for the
northern district of California, the Vice President, in
the absence of the President pro tempore, shall have
the right to name in open Senate, sitting for said
trial, a Senator to perform the duties of the Chair.
The President pro tempore shall likewise have the
right to name in open Senate, sitting for said trial,
or, if absent, in writing, a Senator to perform the
duties of the Chair; but such substitution in the case
of either the Vice President or the President pro
tempore shall not extend beyond an adjournment or
recess, except by unanimous consent.184
---------------------------------------------------------------------------
\184\ May 15, 1933, 73-1, Senate Journal, p. 328.
---------------------------------------------------------------------------
Putting the Question to Witnesses, to Managers and Counsel, and in
Writing:
Orders and motions, except to adjourn, are reduced to
writing when offered by Senators in impeachment trials, and the
Presiding Officer in an impeachment trial is the medium for
putting the questions to witnesses and motions and orders to
the Senate, but questions asked by Senators in impeachment
trials, whether of managers, counsel, or witnesses, must be in
writing.
The present form and history of Rule XIX of the Senate sitting for
impeachments:
Rule XIX of the ``Rules of procedure and practice for the
Senate when sitting in impeachment trials'' is as follows:
If a Senator wishes a question to be put to a
witness, or to a manager, or to counsel of the person
impeached, or to offer a motion or order (except a
motion to adjourn), it shall be reduced to writing, and
put by the Presiding Officer. The parties or their
counsel may interpose objections to witnesses answering
questions propounded at the request of any Senator and
the merits of any such objection may be argued by the
parties or their counsel. Ruling on any such objection
shall be made as provided in Rule VII. It shall not be
in order for any Senator to engage in colloquy.
This rule dates from the Chase trial in 1805.\185\ In the
revision of 1868,\186\ preparatory to the trial of President
Johnson, the form was modified by the insertion of the
parenthetical clause and the use of the words ``Presiding
Officer'' for ``President.'' In 1986, the Rule was clarified
and brought into conformance with the precedents by the
adoption of S. Res. 479, 99th Congress, 2d Session.
---------------------------------------------------------------------------
\185\ Eighth Congress, second session, Senate Journal, pp. 511-13,
Annals, pp. 89-92.
\186\ Fortieth Congress, second session, Senate Report No. 59,
Senate Journal, pp. 813, 814; Globe, p. 1568.
---------------------------------------------------------------------------
Contrary to old Rule XIX, for impeachment trials, the
Senate had allowed Senators to interrogate the managers and
counsel for the respondent.
While the Senate was sitting for the Belknap trial,
arguments, continuing from May 4 to May 8, 1876, were offered
by the managers on the part of the House of Representatives and
the counsel for the respondent on the question of the
junsdiction of the Senate to try a citizen not in civil office
at the time of the presentation of articles of impeachment. In
the course of these arguments, members of the Senate frequently
interrupted the managers and counsel for respondent with
questions,\187\ relating to various points touched in the
argument. These questions were generally presented in writing.
---------------------------------------------------------------------------
\187\ May 4-8, 1876, 44-1, Record of trial, pp. 33, 42, 43, 47, 60.
---------------------------------------------------------------------------
On July 20, 1876,\188\ in the same trial, Mr. Manager
William P. Lynde was submitting an argument in the final
summing up of the case, when Mr. Eaton, a Senator from
Connecticut, interrupted by saying:
---------------------------------------------------------------------------
\188\ July 20, 1876, 44-1, Record of trial, p. 296.
---------------------------------------------------------------------------
Mr. President, is it proper that I should ask the
manager a question?
The President pro tempore (T. W. Ferry, of Michigan) said:
It has been so ruled by the Senate.
Thereafter, both the managers and counsel for respondent were
interrupted by questions.\189\
---------------------------------------------------------------------------
\189\ Ibid., pp. 296, 297, 315.
---------------------------------------------------------------------------
On July 12, 1876, in the trial of Belknap, Senator Edmunds,
of Vermont, following the practice during that trial, proposed
a question to counsel for the respondent.
Senator Conkling, of New York, raised a question of order
as to the right of a Senator to interrogate counsel.
The President pro tempore (T. W. Ferry, of Michigan) said:
The Senator from New York calls the attention of the
Chair to the fact that the rule does not authorize the
questioning of counsel, but of witnesses. * * * The
rule will be read.
XIX. If a Senator wishes a question to be put to a
witness or to offer a motion or order (except a motion
to adjourn), it shall be reduced to writing and put by
the Presiding Officer.
* * * The Chair will state that in administering the
rule he would not feel authorized to permit a question
to be put to the counsel or the managers, for the rule
provides only for Senators to question witnesses, and
not counsel or managers to be questioned by them. * * *
The Senator from New York has stated the point of
order, and the Chair simply holds that under the rule
No. 18, and which is the only one bearing upon the
subject and upon which he rules, the Chair sustains the
point of order.
Mr. Edmunds appealed, and on the question, ``Shall the
decision of the Chair stand as the judgment of the Senate?''
there appeared 18 yeas, 21 nays. So the Chair was overruled,
and the question proposed by Mr. Edmunds was put to
counsel.\190\
---------------------------------------------------------------------------
\190\ July 12, 1876, 44-1, Senate Journal, pp. 976, 977; Record of
trial, pp. 258, 259.
---------------------------------------------------------------------------
On July 11, 1876, in that trial, several Senators had
addressed verbal questions to the managers and to counsel for
the respondent, Mr. Roscoe Conkling, a Senator from New York,
having called attention to the rule, which he condemned as
absurd, the President pro tempore (T. W. Ferry, of Michigan)
said:
As the Senator from New York has alluded to the fact
that the question was not put in writing, the Chair
will say that it has not been done in order to
facilitate business, and a moment ago one of the
Senators was about to reduce a question to writing and
the Senator from New York stated that the practice had
been otherwise. * * *
The Chair to facilitate business has allowed
questions to be put without being reduced to writing by
the propounders.
Later, colloquies and objection having arisen, the
President pro tempore ruled:
The Chair will enforce the rule. Colloquies must
cease. Objection has been made, and the Chair must
enforce the rule. He will state that on the part of
Senators, to guard against any breach of the rules and
unpleasantness, he will require all questions to be
reduced to writing; and then certainly there can be no
debate. The counsel will proceed.
Mr. Richard J. Oglesby, a Senator from Illinois, asked:
Does the decision of the Chair, that no questions can
be put hereafter without being reduced to writing,
cover questions put by the court to one of the counsel?
The President pro tempore said:
It covers all questions put by members of the Senate.
The rule does not require the questions on the part of
the parties to be reduced to writing unless so
requested by the Chair or a Senator; but all questions
put by members of the Senate the rule requires shall be
put in writing.\191\
---------------------------------------------------------------------------
\191\ July 11, 1876, 44-1, Record of Trial, pp. 248, 249.
---------------------------------------------------------------------------
Again, on July 19, 1876, John S. Evans, a witness on behalf
of the respondent, was on the stand, when Mr. Randolph, a
Senator from New Jersey, proposed to ask orally a question. The
suggestion being made that the question should be reduced to
writing, Mr. Randolph urged that such had not been the
practice.
The President pro tempore (T. W. Ferry, of Michigan) said:
The Chair will observe at this time that so far as
questions have been put to witnesses by Senators the
rule in the recollection of the Chair has been observed
until this time, and the Chair called the attention of
the Senator from California, who put a question just
now without reducing it to writing, to the fact that
the rule required it to be done. The question having
been put and it having been reduced to writing, by
calling the attention of the Senator to the rule the
Chair did his duty. Heretofore no questions have been
put to witnesses, as the Chair recollects, without
having been first reduced to writing.\192\
---------------------------------------------------------------------------
\192\ July 19, 1876, 44-1, Record of Trial, p. 275.
---------------------------------------------------------------------------
Quorum
Calls of, in Order During Trial:
During the trial of Andrew Johnson,
Mr. Sherman moved that there be a call of the Senate;
and
The roll being called,
It appeared that 44 senators were present and
answered to their names.\193\
---------------------------------------------------------------------------
\193\ April 22, 1868, 40-2, Senate Journal, p. 921.
---------------------------------------------------------------------------
During the trial of Secretary of War Belknap:
. . . a question was raised by Mr. Edmunds whether a
quorum of the Senate was present, and
The Presiding Officer directed the Secretary to count
the Senate; and upon counting the Senate it appeared
that a quorum was not present.
Whereupon,
On motion by Mr. Edmunds,
The Senate sitting for the trial of the impeachment
adjourned.\194\
---------------------------------------------------------------------------
\194\ June 16, 1876, 44-1, Senate Journal, p. 952.
---------------------------------------------------------------------------
Under recent practices, quorums are regularly called during
a trial, but the Chair does not count to ascertain a quorum.
Quorum for an Impeachment Trial Consists of a Quorum of the Senate, and
not merely the Members Sworn for the Trial:
On December 3, 1912, during the trial of Robert Archbald,
following a quorum call, the President pro tempore made the
following statement:
On the call of the roll 65 Senators are present. A
quorum of the Senate is present.\195\
---------------------------------------------------------------------------
\195\ December 3, 1912, 62-3, Record, p. 21.
---------------------------------------------------------------------------
Respondent
Answer to Articles of Impeachment Received by Senate:
In the trial of Andrew Johnson in 1868, following the
answer of the President, presented by his counsel, to the
articles of impeachment, the Chief Justice submitted the
following question to the Senate:
Shall the answer of the respondent as read by his
counsel be received and filed? and
It was determined in the affirmative.\196\
---------------------------------------------------------------------------
\196\ March 23, 1868, 40-2, Senate Journal, p. 860.
---------------------------------------------------------------------------
In the trial of Halsted Ritter in 1936, the following
orders were considered and agreed to regarding the answer to
the articles of impeachment:
Ordered, That the answer of the respondent, Halsted
L. Ritter, to the articles of impeachment, as amended,
exhibited against him by the House of Representatives,
be printed for the use of the Senate sitting in the
trial of said impeachment.
Ordered, That the Secretary of the Senate communicate
to the House of Representatives an attested copy of the
answer of Halsted L. Ritter, United States district
judge for the southern district of Florida, to the
articles of impeachment, and also a copy of the order
entered on the 12th ultimo prescribing supplemental
rules for the said impeachment trial.\197\
---------------------------------------------------------------------------
\197\ April 3, 1936, 74-2, Senate Journal, p. 494.
---------------------------------------------------------------------------
Appearance of and Request of Time to Answer Articles:
In an impeachment case, the writ of summons having been
returned, the accused is called to appear to answer the
articles.
On March 12, 1936, Judge Halsted Ritter appeared personally
with his counsel and filed a formal entry of appearance as
follows:
In the Senate of the United States of America Sitting as a Court of
Impeachment
March 12, 1936.
The United States of America v. Halsted L. Ritter
The respondent, Halsted L. Ritter, having this day
been served with a summons requiring him to appear
before the Senate of the United States of America in
the city of Washington, D.C., on March 12, 1936, at 1
o'clock in the afternoon to answer certain articles of
impeachment presented against him by the House of
Representatives of the United States of America, now
appears in his proper person and also by his counsel,
who are instructed by this respondent to inform the
Senate that respondent stands ready to file his
pleadings to such articles of impeachment within such
reasonable period of time as may be fixed.
Dated March 12, 1936.
Halsted L. Ritter, Respondent.
Carl T. Hoffman,
Frank P. Walsh,
Counsel for Respondent.\198\
---------------------------------------------------------------------------
\198\ March 12 1936, 74-2, Record, pp. 3646-47.
---------------------------------------------------------------------------
In the trial of Judge Archbald in 1912, on the motion of
the counsel for the respondent, and over the protest of the
managers for the House of Representatives, the Senate granted
the respondent at his first appearance ten days in which to
answer the articles of impeachment, based on the following
request:
In the Senate of the United States, Sitting as a Court of Impeachment
United States v. Robert W. Archbold
The respondent, Robert W. Archbald, having been
served with a summons requiring him to appear before
the Senate of the United States at their Chamber in the
city of Washington, on Friday, July 19, 1912, at 12:20
o'clock in the afternoon, to answer certain articles of
impeachment presented against him by the House of
Representatives of the United States, now appears in
his proper person and also by his counsel, Robert W.
Archbald, Jr., and Augustus S. Worthington, who are
instructed by this respondent to apply to this court
for a reasonable time for the preparation of his answer
to said articles of impeachment.
R. W. Archbaid.\199\
---------------------------------------------------------------------------
\199\ July 19, 1912, 62-2, Senate Journal, p. 630.
---------------------------------------------------------------------------
After the above was read and placed on file, the counsel
for the respondent then made the following motion:
In the Senate of the United States, Sitting as a Court of Impeachment
United States v. Robert W. Archbald
The respondent by his counsel, now comes and moves
the court to grant him the period of ------ days in
which to prepare and present his answer to the articles
of impeachment presented against him herein.
R. W. Archbald, Jr.
A. S. Worthington. \200\
---------------------------------------------------------------------------
\200\ Ibid., p. 630.
---------------------------------------------------------------------------
The motion was amended as follows and agreed to:
Ordered, That the respondent present the answer to
the articles of impeachment at 12 o'clock and 30
minutes post meridian, on the 29th day of July,
1912.\201\
---------------------------------------------------------------------------
\201\ July 19, 1912, 62-2, Senate Journal, p. 630.
---------------------------------------------------------------------------
There has been some variation in the appearance by
respondents. Judge Ritter appeared in person, attended by
counsel, to answer to the articles,\202\ as did Judge
Louderback,\203\ Judge Archbald,\204\ and Mr. Justice
Chase.\205\ Judge Humphreys, however, did not appear either in
person or by attorney to answer the articles,\206\ and
President Johnson did not appear, but was represented by
counsel.\207\
---------------------------------------------------------------------------
\202\ March 12, 1936, 74-2, Senate Journal, p. 478.
\203\ April 11 1933, 73-1, Senate Journal, p. 309.
\204\ July 19, 1912, 62-2, Senate Journal, p. 629.
\205\ January 2, 1805, 8-2, Senate Journal, p. 514.
\206\ Judge Humphreys, not appearing, the case was continued on
motion of the managers to enable the production of testimony and the
Senate directed publication of a proclamation for him to appear as
follows:
``Ordered. That this high court of ``impeachment stand adjourned
till the 26th day of June instant, at 12 o'clock, meridian, and as the
said West H. Humphreys has failed to make his appearance to answer the
said articles of impeachment, though duly summoned, it is further
ordered that proclamation for his appearance on that day be made by
publishing this order in the National Intelligencer, National
Republican and Evening Star newspapers, printed in the city of
Washington, for at least ten days successively before said 26th day of
June, instant; and also in the Nashville Union, a newspaper printed in
the city of Nashville, in the State of Tennessee, at least several days
before said 26th day of June, instant, June 9, 1862, 37-2, Journal, p.
894.
\207\ March 13, 1868, 40-2, Senate Journal, p. 824.
---------------------------------------------------------------------------
Whether or not the respondent appears in person or by
attorney ``on the day so fixed therefor as aforesaid, or,
appearing, shall fail to file his answer to such articles of
impeachment, that trial shall proceed, nevertheless, as upon a
plea of not guilty. If a plea of guilty shall be entered,
judgment may be entered thereon without further proceedings.''
\208\
---------------------------------------------------------------------------
\208\ Rule VIII, Senate Impeachment Rules.
---------------------------------------------------------------------------
Posted Bond, as Required:
In one trial, namely that of William Blount, the respondent
was required to post bond and enter into recognizance for his
appearance to answer said impeachment. He personally appeared
before the President pro tempore and the Senate of the United
States, along with his sureties, two members of the House of
Representatives, to post bond for his appearance.\209\
---------------------------------------------------------------------------
\209\ July 7, 1797, 5.1, Senate Journal, p. 389.
---------------------------------------------------------------------------
Resignation Does not Render Moot the Impeachment of the Respondent:
In the trail of William Belknap in 1876, Mr. Belknap
resigned his office of Secretary of War and the question was
raised
. . . whether W. W. Belknap, the respondent, is
amenable to trial by impeachment for acts done as
Secretary of War, notwithstanding his resignation of
said office; . . .\210\
---------------------------------------------------------------------------
\210\ May 4 1876, 44-1, Senate Journal, p. 928.
---------------------------------------------------------------------------
The Senate resolved the issue by agreeing to the following
resolution:
Resolved, That, in the opinion of the Senate, William
W. Belknap, the respondent, is amenable to trial by
impeachment for acts done as Secretary of War
notwithstanding his resignation of said office before
he was impeached.\211\
---------------------------------------------------------------------------
\211\ May 29, 1876, 44-1, Senate Journal, p. 944.
---------------------------------------------------------------------------
In the case of Judge English, the respondent having retired
from office, the managers, while maintaining their right to
prosecute the charges, recommended that impeachment proceedings
be discontinued. As a result, the Senate dismissed the charges
against Judge English on December 13, 1926.\212\
---------------------------------------------------------------------------
\212\ December 13, 1926, 60-2, Record, p. 344; December 13, 1926,
69-2, Senate Journal, p. 287.
---------------------------------------------------------------------------
Witness at own Trial, Examined and Cross-examined:
During the trial of Halsted L. Ritter, the respondent,
Judge Ritter, was directly examined and then read a statement
in his own defense. Following the statement, he was subject to
cross-examination on the part of Senators, submitting their
questions in writing, and on the part of the managers of the
House of Representatives.\213\
---------------------------------------------------------------------------
\213\ April 11, 1936, 74-2, Record, pp. 5370-84.
---------------------------------------------------------------------------
Also, in the trial of Judge Louderback in 1933, the
respondent appeared and testified at length in his own behalf,
and following his testimony, questions were propounded in
writing and answered by the respondent.\214\
---------------------------------------------------------------------------
\214\ May 23, 1933, 73-1, Record, pp. 3971-3991.
---------------------------------------------------------------------------
The first instance of a respondent taking the stand on his
own behalf was Jude Robert Archbald in 1913.\215\
---------------------------------------------------------------------------
\215\ January 6, 1913, 62-3, Senate Journal, p. 324.
---------------------------------------------------------------------------
Witnesses Questioned by:
The respondent, James Peck, acted in his own defense,
giving evidence and questioning witnesses.\216\
---------------------------------------------------------------------------
\216\ January 11, 1831, 21-2, Senate Journal, p. 333.
---------------------------------------------------------------------------
Secretary of the Senate
Informing the House:
Rule I of the impeachment rules provides that the Secretary
of the Senate inform the House of Representatives of the
Senate's readiness to receive the managers on the part of the
House as follows:
Whensoever the Senate shall receive notice from the
House of Representatives that managers are appointed on
their part to conduct an impeachment against any person
and are directed to carry articles of impeachment to
the Senate, the Secretary of the Senate shall
immediately inform the House of Representatives that
the Senate is ready to receive the managers for the
purpose of exhibiting such articles of impeachment,
agreeably to such notice.
On the day appointed for the trial, the Secretary also
notifies the House of Representatives as follows:
At 12:30 o'clock afternoon, or at such other hour as
the Senate may order, of the day appointed for the
trial of an impeachment, the legislative and executive
business of the Senate shall be suspended, and the
Secretary shall give notice to the House of
Representatives that the Senate is ready to proceed
upon the impeachment of ------ ------, in the Senate
Chamber.\217\
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\217\ Rule XII, Senate Rules of Impeachment.
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Issues Orders, Mandates, etc.:
When the Presiding Officer, who has the power to make and
issue orders, mandates, writs, and precepts, makes use of this
power, he has the option of utilizing the Secretary of the
Senate as follows:
The Presiding Officer shall have power to make and
issue, by himself or by the Secretary of the Senate,
all orders, mandates, writs, and precepts authorized by
these rules or by the Senate, and to make and enforce
such other regulations and orders in the premises as
the Senate may authorize or provide.\218\
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\218\ Rule V, Senate Rules of Impeachment.
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Oaths, Administration of:
When a summons is returned against the person impeached,
the Secretary of the Senate administers an oath to the
returning officer:
I, ------ ------, do solemnly swear that the return
made by me upon the process issued on the ------ day of
------, by the Senate of the United States, against --
---- ------, is truly made, and that I have performed
such service as therein described: So help me God.\219\
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\219\ Rule IX, Senate Rules of Impeachment.
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When witnesses are called, they are administered the
following oath by the Secretary or any other duly authorized
person as follows:
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.\220\
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\220\ Rule XXV, Senate Rules of Impeachment.
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Reading of Motions:
Rule XVI provides for the reading of motions at the
Secretary's table as follows:
All motions, objections, requests, or applications
whether relating to the procedure of the Senate or
relating immediately to the trial (including questions
with respect to admission of evidence or other
questions arising during the trial) made by the parties
or their counsel shall be addressed to the Presiding
Officer only, and if he, or any Senator, shall require
it, they shall be committed to writing, and read at the
Secretary's table.
Record of Proceedings:
The Secretary is charged with keeping the record of
proceedings as follows:
The Secretary of the Senate shall record the
proceedings in cases of impeachment as in the case of
legislative proceedings, and the same shall be reported
in the same manner as the legislative proceedings of
the Senate.\221\
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\221\ Rule XIV, Senate Rules of Impeachment.
---------------------------------------------------------------------------
Subpenas, Ordering and Serving:
Rule XXV provides for the following form of direction for
the serving of a subpena to be filed by the Secretary of the
Senate as follows:
The Senate of the United States to ------ ------,
greeting:
You are hereby commanded to serve and return the
within subpena according to law.
Dated at Washington, this ------ day of ------, in
the year of our Lord ------, and of the Independence of
the United States the ------.
------ ------,
Secretary of the Senate.
Senate Rules
Senate Legislative Rules Applicable When Impeachment Rules Are Silent:
On April 11, 1868, during the trial of President Johnson,
objection was heard to a motion from the floor by a Senator and
the Chief Justice ruled that objection forced a motion to lie
over one day. At this point the following colloquy occurred:
Mr. Trumbull. An objection does not carry it over,
does it?
The Chief Justice. The Chair think it does.
Mr. Trumbull. It does not change the rule. The rule
provides for this very thing being done, if the Senate
choose to allow it.
Mr. Conkling. Mr. President, may I inquire under what
rule of the Senate thus organized it is that this
motion lies over upon the objection of a single
Senator?
The Chief Justice. The Chief Justice in conducting
the business of the court adopts for his general
guidance the rules of the Senate sitting in legislative
session as far as they are applicable. That is the
ground of his decision.\222\
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\222\ April 11, 1868, 40-2, Congressional Globe Supplement, p. 147.
---------------------------------------------------------------------------
Likewise, a few days later, an order was sent to the Chair and
objection was heard to its immediate consideration. The Chief
Justice stated:
Objection is made. The order will lie over for one
day.
Mr. Sumner. I beg leave most respectfully to inquire
under what rule such an objection can be made.
The Chief Justice. The Chief Justice stated on
Saturday that in conducting the business of the court
he applied, as far as they were applicable, the general
rules of the Senate. This has been done upon several
occasions, and when objection has been made orders have
been laid over to the next day for consideration.\223\
---------------------------------------------------------------------------
\223\ April 14, 1868, 40-2, Congressional Globe Supplement, p. 147.
---------------------------------------------------------------------------
Supplementary Rules:
In the trial of Halsted L. Ritter in 1936, the Senate
adopted certain supplementary rules on impeachment only
applicable during said trial which were as follows:
1. In all matters relating to the procedure of the
Senate, whether as to form or otherwise, the managers
on the part of the House or the counsel representing
the respondent may submit a request or application
orally to the Presiding Officer, or, if required by him
or requested by any Senator, shall submit the same in
writing.
2. In all matters relating immediately to the trial,
such as the admission, rejection, or striking out of
evidence, or other questions usually arising in the
trial of causes in courts of justice, if the managers
on the part of the House or counsel representing the
respondent desire to make any application, request, or
objection, the same shall be addressed directly to the
Presiding Officer and not otherwise.
3. It shall not be in order for any Senator, except
as provided in the rules of procedure and practice in
the Senate when sitting on impeachment trials, to
engage in colloquy or to address questions either to
the managers on the part of the House or to counsel for
the respondent, nor shall it be in order for Senators
to address each other; but they shall address their
remarks directly to the Presiding Officer and not
otherwise.
4. The parties may, by stipulation in writing filed
with the Secretary of the Senate and by him laid before
the Senate or presented at the trial, agree upon any
facts involved in the trial; and such stipulation shall
be received by the Senate for all intents and purposes
as though the facts therein agreed upon had been
established by legal evidence adduced at the trial.
5. The parties or their counsel may interpose
objection to witnesses answering questions propounded
at the request of any Senator, and the merits of any
such objection may be argued by the parties or their
counsel; and the Presiding Officer may rule on any such
objection, 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; or he
may, at his option, in the first instance submit any
such question to a vote of the Members of the Senate.
Upon all such questions the vote shall be without
debate and without a division, unless the ayes and nays
be demanded by one-fifth of the Members present, when
the same shall be taken.\224\
---------------------------------------------------------------------------
\224\ March 12, 1936, 74-2, Senate Journal, p. 479.
---------------------------------------------------------------------------
During the trial of Judge Swayne in 1905, the Senate
adopted the following supplementary rule applicable only during
that trial:
Ordered, That in all matters relating to the
procedure of the Senate sitting in the trial of the
impeachment of Charles Swayne, judge of the district
court of the United States in and for the northern
district of [lorida, whether as to form or otherwise
the managers on the part of the House or the counsel
representing the respondent may submit a request or
application orally to the Presiding Officer, or, if
required by him or requested by any Senator, shall
submit the same in writing.
In all matters relating innmediately to the trial,
such as the admission, rejection or striking out of
evidence, or other questions usually arising in the
trial of causes in courts of justice, if the managers
or counsel for the respondent desire to make any
application, request, or objection, the same shall be
addressed directly to the Presiding Officer and not
otherwise.
It shall not be in order for any Senator to engage in
colloquy, or to address questions either to the
managers on the part of the House or the counsel for
the respondent, nor shall it be in order for Senators
to address each other, but they shall address their
remarks directly to the Presiding Officer.\225\
---------------------------------------------------------------------------
\225\ February 3, 1905, 58-3, Record, p. 1819.
---------------------------------------------------------------------------
During the trial of Harold Louderback in 1933, the
following supplementary rules were reported and adopted:
Ordered, That in addition to the rules of procedure
and practice in the Senate when sitting on impeachment
trials, heretofore adopted, and supplementary to such
rules, the following rules will be applicable in the
trial of the impeachment of Harold Louderback, United
States judge for the northern district of California
First. In all matters relating to the procedure of
the Senate, whether as to form or otherwise, the
managers on the part of the House or the counsel
representing the respondent may submit a request or
application orally to the Presiding Officer, or, if
required by him or requested by any Senator, shall
submit the same in writing.
Second. In all matters relating immediately to the
trial, such as the admission, rejection, or striking
out of evidence, or other questions usually arising in
the trial of causes in courts of justice, if the
managers on the part of the House or counsel
representing the respondent desire to make any
application, request, or objection, the same shall be
addressed directly to the Presiding Officer and not
otherwise.
Third. It shall not be in order for any Senator,
except as provided in the rules of procedure and
practice in the Senate when sitting on impeachment
trials, to engage in colloquy or to address questions
either to the managers on the part of the House or to
counsel for the respondent, nor shall it be in order
for Senators to address each other; but they shall
address their remarks directly to the Presiding Officer
and not otherwise.
Fourth. The parties may, by stipulation in writing
filed with the Secretary of the Senate and by him laid
before the Senate or presented at the trial, agree upon
any facts involved in the trial; and such stipulation
shall be received by the Senate for all intents and
purposes as though the facts therein agreed upon had
been established by legal evidence adduced at the
trial.
Fifth. The parties or their counsel may interpose
objection to witnesses answering questions propounded
at the request of any Senator, and the merits of any
such objection may be argued by the parties or their
counsel; and the Presiding Officer may rule on any such
objection, which ruling shall stand asthe 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; or he may, at his option, in the first instance
submit any such question to a vote of the Members of the Senate. Upon
all such questions the vote shall be without debate and without a
division, unless the yeas and nays be demanded by one-fifth of the
Members present, when the same shall be taken.\226\
---------------------------------------------------------------------------
\226\ April 11, 1933, 73-1, Senate Journal, p. 318.
---------------------------------------------------------------------------
In the trial of Judge Archbald in 1912, no new rules were
adopted; the rules framed in former trials were considered as
being operative. This was the same procedure as had been
followed in the trials of Secretary of War Belknap and Judge
Swayne.\227\
---------------------------------------------------------------------------
\227\ July 15, 1912, 62-2, Senate Journal, p. 454.
---------------------------------------------------------------------------
Senators
Disqualification of, in Trials Failed:
There have been two trials in which attempts were made to
disqualify certain Senators, and in both instances the Senators
involved were permitted to vote.
In the trial of Judge Pickering, three Senators, Samual
Smith, Israel Smith, and John Smith, who had been Members of
the House of Representatives, and who had voted on the question
of impeaching Judge Pickering, were members of the Senate
during the trial. A resolution was introduced to provide that
any Senator of the United States, having previously acted and
voted, as a Member of the House on the question of impeachment,
be disqualified, but this resolution was simply ordered to lie
over for consideration, and all three Senators voted during the
trial of Judge Pickering.\228\
---------------------------------------------------------------------------
\228\ January 4, 1804, S-1, Senate Journal, pp. 382-83.
---------------------------------------------------------------------------
During the trial of President Andrew Johnson, the issue of
dis qualification arose prior to the administration of the oath
to Senator Benjamin Wade of Ohio. The arugment was raised by
Senator Thomas Hendricks of Indiana that since Senator Wade had
an interest in the outcome of the trial, inasmuch as he would
succeed to the office of President if conviction had been
obtained, that he was not competent to sit as a member of the
court, Senator Oliver Morton of Indiana pointed out that under
the Constitution the Senate has the sole power to try all
impeachments and that Senator Wade, as a member of the Senate,
had a constitutional right to sit there. After thorough
discussion of the issue, Senator Hendricks withdrew his
objection, stating that he thought that the question might more
properly be raised when the Senate would be fully organized for
a trial and when the accused party was present; the oath was
administered to Senator Wade.\229\
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\229\ March 5, 6, 1868, 40-2, Senate Journal, pp. 809-11.
---------------------------------------------------------------------------
Excused from Participation in Trial or from Voting:
Senators from time to time have asked to be excused from
participation in an impeachment trial. During the trial of
Halsted L. Ritter, the Senator from Colorado (Mr. Costigan)
asked unanimous consent to stand aside from participation in
the trial, with a statement of his reasons therefor entered in
the Record, it was granted.\230\
---------------------------------------------------------------------------
\230\ March 12, 1936 74-2, Record, p. 3646.
---------------------------------------------------------------------------
Also in the trial of Judge Louderback in 1933, Senator John
Overton of Louisiana and Senator Augustine Lonergan of
Connecticut, who had been Members of the House of
Representatives at the time of the impeachment of Judge
Louderback, were excused from participation in the trial.\231\
In the trial of Secretar of War Belknap in 1876, Senator James
Alcorn from Mississippi took the oath and was sworn for the
impeachment trial, but because he had been absent from the
sessions of the Senate prior to an incidental question being
voted on, was excused from voting at his request.\232\
---------------------------------------------------------------------------
\231\ March 9, 1933, 73-1, Senate Journal, p. 307.
\232\ March 15, 1876, 44-1, Senate Journal, p. 933.
---------------------------------------------------------------------------
In the trial of Judge Charles Swayne in 1905, just before
the vote was to be taken on the first article of impeachment,
Senator P. C. Knox of Pennsylvania asked to be excused from
voting as a result of his absence on account of illness. The
Presiding Officer put the question and the Senator was
excused.\233\
---------------------------------------------------------------------------
\233\ February 27, 1905, 58-3, Record, p. 3468.
---------------------------------------------------------------------------
During the trial of Halsted Ritter in 1936, Senator Millard
Tydings of Maryland, for reasons assigned by him and by
unanimous consent, was excused from participation in the
trial.\234\
---------------------------------------------------------------------------
\234\ March 31, 1936, 74-2, Senate Journal, p. 480.
---------------------------------------------------------------------------
Just prior to voting on the articles of impeachment in the
trial of Judge Louderback in 1933, a number of Senators were
excused from voting. Senator Carter Glass of Virginia asked
that he be excused because of repeated absences, which request
was granted by unanimous consent.\235\
---------------------------------------------------------------------------
\235\ May 24, 1933, 73-1, Record, p. 4082.
---------------------------------------------------------------------------
A total of twenty-one requests by Senators to be excused
from voting were granted during votes on the articles involving
Judge Louderback.\236\ Two Senators had their positions
announced as to whether they would vote ``guilty'' or ``not
guilty'' in spite of their absence,\237\ but no pairs were
allowed on these final votes.\238\
---------------------------------------------------------------------------
\236\ May 24, 1933, 73-1, Record, pp. 4082-87.
\237\ May 24, 1933, 73-1, Record, p. 4082.
\238\ May 24, 1933, 73-1, Record, p. 4083.
---------------------------------------------------------------------------
During the trial of Judge Peck, Senator Thomas Hart Benton
of Missouri was twice excused from voting, once at the
beginning of the trial,\239\ and again at the end of the trial
subsequent to his being a witness in that trial.\240\ In the
same trial Senator John Robinson of Illinois was excused just
prior to the final vote on the article of impeachment.\241\
---------------------------------------------------------------------------
\239\ April 26, 1830, 21-2, Senate Journal, p. 238.
\240\ January 31, 1831, 21-2, Senate Journal, p. 341.
\241\ January 31, 1831, 21-2, Senate Journal, p. 341.
---------------------------------------------------------------------------
Witnesses at Trial:
When a Senator is called as a witness, he is sworn and
testifies standing in his place.\242\
---------------------------------------------------------------------------
\242\ Rule XVIII, Senate Rules of Impeachment.
---------------------------------------------------------------------------
Witnesses, Questioned by Senators:
See also ``Putting the question . . .'' under Presiding
officer, p. 66.
Objecting may be raised to questioning by Senators, but in
the trial of Andrew Johnson in 1868, the Chief Justice ruled
that any objection to the putting of a question by a member of
the Senate must come from another Senator.\243\
---------------------------------------------------------------------------
\243\ April 13, 1968, 40-2, Congressional Globe Supplement, p. 166.
---------------------------------------------------------------------------
In the trial of Judge Swayne in 1905, this ruling of the
Chief Justice was effectively circumvented when the Presiding
Officer agreed that Senators' questions could not be objected
to by either managers or counsel, but the answer by the witness
to such questions could be objected to.\244\
---------------------------------------------------------------------------
\244\ February 11, 1905, 58-3, Record, pp. 2393, 2397, 2399.
---------------------------------------------------------------------------
Rule XIX governing the question put by Senators reads as
follows:
``If a Senator wishes a question to be put to a
witness, or to a manager, or to counsel of the person
impeached, or to offer a motion or order (except a
motion to adjourn), it shall be reduced to writing, and
put by the Presiding Officer. The parties or their
counsel may interpose objections to witnesses answering
questions propounded at the request of any Senator and
the merits of any such objection may be argued by the
parties or their counsel. Ruling on any such objection
shall be made as provided in Rule VII. It shall not be
in order for any Senator to engage in colloquy.'' \245\
---------------------------------------------------------------------------
\245\ August 16, 1986, Congressional Record (for August 15, 1986)
pp. S11902-S11903.
---------------------------------------------------------------------------
Subpenas
Enforcement of:
In the trial of Secretary of War Belknap in 1876, a witness
attempted to withhold certain evidence which he claimed was
``privileged communications.'' The President pro tempore
submitted the question to the Senate as to whether the witness
should produce the evidence and it was decided in the
affirmative.\246\
---------------------------------------------------------------------------
\246\ July 8, 1876. 44-1, vol. 4, part 7, Record, p. 216.
---------------------------------------------------------------------------
The Senate discussed on an earlier occasion how the
Sergeant at Arms might enforce its subpena. In 1868 during the
trial of Andrew Johnson, there was a discussion of the power of
the Sergeant at Arms to summon a posse comitatus \247\ and
finally the following wording was adopted regarding the powers
of the Sergeant at Arms:
---------------------------------------------------------------------------
\247\ March 2, 1868, 40-2, Congressional Globe, pp. 1526-33.
---------------------------------------------------------------------------
. . . And the Sergeant at Arms, under the direction
of the Senate, may employ such aid and assistance as
may be necessary to enforce, execute, and carry into
effect the lawful orders, mandates, writs, and precepts
of the Senate.\248\
---------------------------------------------------------------------------
\248\ Rule VI, Senate Rules of Impeachment.
---------------------------------------------------------------------------
Form of:
For the form of subpenas see Rule XXV for Impeachment
Trials.
Signed by Presiding Officer:
Under a rule of the Senate subpenas or other writs are
signed by the Presiding Officer, be he the Vice President or
President pro tempore, during session of the Senate for the
trial or while on vacation.
On August 3, 1912, during the trial of Judge Robert W.
Archbald, Senator Stone, of Missouri, Propounded the following
inquiry:
Mr. President, I should like to propound an inquiry.
The Presiding Officer, on other words, the Senator who
shall preside, I presume is to attach his signature to
the subpenas for witnesses. Is that correct?
On response, the President pro tempore directed the
Secretary to read the following rule of the Senate:
V. The Presiding Officer shall have power to make and
issue, by himself or by the Secretary of the Senate,
all orders, mandates, writs, and precepts authorized by
these rules, or by the Senate and to make and enforce
such other regulations and orders in the premises as
the Senate may authorize or provide.
Mr. Stone then inquired:
Then under the rule the Vice President will be the
Presiding Officer who would sign all writs?
Would the present occupant of the chair be clothed
with that power during the vacation? Application for
the issue of subpenas for witnesses will be made during
the vacation of the Senate, in all probability
probability in November. It puzzles me a little bit to
know who would sign those writs.
The President pro tempore said:
The Chair does not think there is any trouble at all
about it. Whoever is the presiding officer at the time
the writ is requires would, in the opinion of the
present occupant of the chair, be clothed with that
power. The Vice President, of course, will be during
the vacation the presiding officer of the Senate, and
if the Senate should indicate anyone else to be
President pro tempore during that time, the power would
be exercised in the first instance by the Vice
President, or, if he should be under disability, by the
President pro tempore, whoever he might be.\249\
---------------------------------------------------------------------------
\249\ August 3, 1912, 66-2, Record, p. 10140.
---------------------------------------------------------------------------
Summons
For form of, see pages 28-30.
Table, Motion to
On April 13, 1868, during the impeachment trial of
President Andrew Johnson, while an order relating to the final
argument in the trial was under consideration, the Chief
Justice admitted a motion to lay a pending proposition on the
table.
Note the following:
Senator Williams of Oregon, moved that the resolution lie
on the table.
Senator Drake, of Missouri, said:
I raise a question of order, Mr. President, that in
this Senate sitting for the trial of an impeachment
there is no authority for moving to lay any proposition
on the table. We must come to a direct vote, I think,
one way or the other.
The Chief Justice (Salmon P. Chase) said:
The Chief Justice cannot undertake to limit the
Senate in respect to its mode of disposing of a
question; and as the Senator from Oregon (Mr. Williams)
announced his purpose to test the sense of the Senate
in regard to whether they will alter the rule at all
the Chief Justice conceives his motion to be in
order.\250\
---------------------------------------------------------------------------
\250\ April 13, 1868, 40-2. Globe Supplement, p. 162.
---------------------------------------------------------------------------
Testimony Not Limited to a Single Article
On February 11, 1805, during the trial of Mr. Justice
Samuel Chase, an associate justice of the Supreme Court, a
challenge was raised against a witness based on the testimony
which applied to articles to be considered subsequently. It was
the sense of the Senate that witnesses should be allowed to
support more than one article with their testimony.\251\
---------------------------------------------------------------------------
\251\ February 11, 1805, 8-2, Annals of the Congress of the United
States, p. 193.
---------------------------------------------------------------------------
Vote
Reconsider Not in Order:
With the adoption by the Senate of S. Res. 479, 99th Cong.,
2d. Sess., on August 16, 1986, a new sentence was added at the
end of Rule XXIII providing that ``A motion to reconsider the
vote by which any article of impeachment is sustained or
rejected shall not be in order.'' The report accompanying S.
Res. 479 (Senate Report 99-401) states: ``The purpose of this
restriction is to obviate the confusion that would invariably
attend a reversal of a vote to convict when, according to most
authorities, such a vote operates automatically and
instantaneously to separate the person impeached from the
office. Under ordinary circumstances the Senate has two days
for reconsideration. Since the trial rules are silent with
respect to a motion to reconsider, the rules of Senate
applicable to legislative matters would apply. Consequently,
the effect of this change is to preclude the operation of the
normal rule in the context of a vote on the final question,
whether such vote is to convict or to acquit.''
Two-Thirds to Convict:
Rule XXIII in part provides that ``if the impeachment shall
not, upon any of the articles presented, be sustained by the
votes of two-thirds of the members present, a judgment of
acquittal shall be entered;'' . . .
Vote Required: Majority Only, Except for Conviction:
During the trial of William Belknap in 1876, a question
arose concerning the admission of evidence and Senator Allen
Thurman of Ohio suggested that the two-thirds requirement for
conviction should apply to objections to testimony. The
proposal was not sustained.\252\
---------------------------------------------------------------------------
\252\ July 21, 1876, 44-1, Record, Vol. 4, Part 7, p. 315.
---------------------------------------------------------------------------
Use of Standing Rules:
Senate Resolution 479, 99th Congress, 2d Session, adopted
August 16, 1986, changed Rule VII by deletion of the last
sentence which effectively required the Senate to arrive at its
decisions by voice vote unless the yeas and nays were demanded.
The new language allows the Senate to vote its decisions ``in
accordance with the Standing Rules of the Senate,'' that is, by
voice vote or by a division, or, when requested by one-fifth of
the members present, by the yeas and nays.
Yeas and Nays: Rule XX:
Rule XX, which requires the doors of the Senate to be open
upon trial of an impeachment unless ordered to be closed for
purposes of deliberating any order or decision as provided in
Impeachment Rule XXIV, was amended by S. Res. 479, 99th Cong.,
2d Session by adding the following new sentence:
A motion to close the doors may be acted upon without
objection, or, if objection is heard, the motion shall
be voted on without debate by the yeas and nays, which
shall be entered on the record.
Yeas and Nays: Rule XXIII:
Rule XXIII provides, in part, ``on the final question
whether the impeachment is sustained, the yeas and nays shall
be taken on each article separately;'' . . .
Yeas and Nays: Rule XXIV:
Rule XXIV, which deals with voting on orders and decisions
and the procedure for going behind closed doors in order to
deliberate these and other matters, was amended by S. Res. 479,
99th Cong. 2d Session, to incorporate the unanimous-consent
procedure added to Rule XX. Since many orders and decisions are
believed to involve noncontroversial matters, it was the
Committee's and the Senate's belief that they may be dispensed
with without objections. However, in the event of objection,
the yeas and nays may be had. Under the previous rule ``All
orders and decision shall be made and had by yeas and nays.''
In place of this language the Senate substitute ``All orders
and decisions may be acted upon without objection, or if
objection is heard, the orders and decisions shall be voted on
without debate `by yeas and nays' ''.
Yeas and Nays: (Cross References)
See also ``Debate,'' pages 47-49.
See also under ``Orders and Decisions.''
Witnesses
Attendance:
The Senate has adjourned on occasion to await the
attendance of witnesses.\253\ The Senate compels the attendance
of witnesses\254\ and forces obedience to its orders.\255\ It
can order witnesses to produce papers.\256\
---------------------------------------------------------------------------
\253\ July 13, 1876, 44-1, Senate Journal, pp. 978-80.
\254\ Rule VI in part states: ``The Senate shall have the power to
compel the attendance of witnesses, . . .''.
\255\ Rule Vl in part states: ``The Senate shall have power to . .
. enforce obedience to its orders, . . .''.
\256\ July 8, 1876, 44-1, Senate Journal, p. 966.
---------------------------------------------------------------------------
Examination of:
When witnesses are summoned, they are examined first by one
person on behalf of the party producing them and then by one
person from the other side.\257\
---------------------------------------------------------------------------
\257\ Rule XVII, Senate Rules of Impeachment.
---------------------------------------------------------------------------
The order in which witnesses are examined can be waived
with the consent of both parties.\258\
---------------------------------------------------------------------------
\258\ February 16, 1905, 58-3, Record, pp. 2719-20.
---------------------------------------------------------------------------
Limitation on Number:
During the trial of Judge Archbald, the Senate adopted the
following order
Ordered, That the number of character witnesses shll
be limited to 15.\259\
---------------------------------------------------------------------------
\259\ December 17, 1912, 62-3, Senate Journal, p. 322.
---------------------------------------------------------------------------
On December 4, 1912,\260\ following the reading and
approval of the Journal, the names of witnesses on behalf of
the managers were read to ascertain their presence, and the
introduction of testimony on behalf of the managers began.
---------------------------------------------------------------------------
\260\ December 4, 1912, 62-3 Record, p. 98.
---------------------------------------------------------------------------
This presentation of testimony continued on December 5, 6,
7, 9, 10, 11, 12, and was concluded on December 14, when Mr.
Manager Clayton announced that the examination in the main part
had been concluded.
The introduction of testimony on behalf of the respondent
was begun on December 16 and continued until December 19, when
adjournment was taken until January 3, 1913.
On December 17, 1912, following the introduction of a
number of witnesses called by counsel on behalf of the
respondent to testify as to respondent's chracter, Mr. Manager
Clayton said:
Mr. President, the managers have offered no character
witnesses anywhere in these proceedings; it is not
their purpose to offer any character witnesises. Ten
character witnesses have been examined. The rule
adopted, or the practice I may say, to be more
accurate, in all the courts of justice so far as I know
is that the court has the discretionary power to limit
the number of witnesses as to character. I take it that
that power is an inseparable incident of the court to
regulate its proceedings and for the purpose, among
others, of bringing the trial to an end.
In so far as I know, all courts permit a reasonable
number of witnesses to be examined on character; but
where the testimony of the character of the party is
not controverted, the court has always, after a
reasonable number of witnesses have been examined, held
that no more should be examined on that particular
matter. Some of the courts of the Union hold that four
character witnesses are sufficient where the testimony
of those witnesses is not controverted.
So, Mr. President, I respectfully submit to you and
to the Senate that after these gentlemen have examined
10 witnesses on character and when the testimony of
those character witnesses is not disputed--is not
controverted--and when the managers tell the Senate it
will not be controverted, it seems to me that the
further examination of character witnesses might well
be dispensed with.
The Presiding Officer said:
The Chair recognizes, of course, that the practice is
such as the manager has indicated, and the necessity of
it is apparent. Otherwise the time of a court might be
indefinitely taken up through the introduction of
innumerable witnesses. At the same time the Chair
recognized that in this case the character of the
respondent is necessarily in issue, and on account of
the gravity of the case and the peculiar position which
the Presiding Officer holds, simply as the mouthpiece
of the Senate, the Chair does not feel authorized to
take the responsibility of shutting off the respondent
in the proof which he seeks to make upon this line. The
Senate has full control over the matter whenever it
sees proper to exercise it.
Thereupon, on motion of Senator Reed, of Missouri, it was--
Ordered, That the number of character witnesses shall
be limited to 15.\261\
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\261\ December 17, 1912, 62-3, Record, p. 774, Senate Journal, p.
322.
---------------------------------------------------------------------------
Limited Examination of:
On December 18, 1912,\262\ on cross-examination, Mr.
Manager Webb proposed to interrogate Miss Mary F. Boland, a
witness called in behalf of the respondent, about certain
matters relative to a conversation which has not been referred
to in the main examination. Objection by counsel for the
respondent was sustained by the presiding officer.
---------------------------------------------------------------------------
\262\ December 18, 1912, 62-3, Record, p. 841, Senate Journal, p.
322.
---------------------------------------------------------------------------
The Presiding Officer. The rule is plain that the
counsel can only cross-examine the witness about
matters upon which the witness has been interrogated on
direct examination.
Whereupon, on motion of Mr. James R. Reed, of Missouri, it
was--
Ordered, That the witness now on the stand, Miss Mary
F. Boland, be at this time interrogated by the managers
relative to that part of the conversation sought to be
elicited.
List to be Called:
During the trial of William W. Belknap in 1876, the counsel
for the respondent moved that the managers on the part of the
House furnish a list of the witnesses that they intend to call.
Whereupon the Senate agreed to the following order:
Resolved, That the managers furnish to the defendant,
or his counsel, within four days, a list of witnesses,
as far as at present known to them, that they intend to
call in this case; and that, within four days
thereafter, the respondent furnish to the managers a
list of witnesses as far as known, that he intends to
summon.\263\
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\263\ June 6, 1876, 44-1, Senate Journal, p. 951.
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Place Occupied While Testifying:
The Senate assigns the place to be occupied by witnesses
while testifying in an impeachment trial.
On July 6, 1876,\264\ during the impeachment trial of
William W. Belknap, the testimony was about to begin when the
President pro tempore (T. W. Ferry, of Michigan) suggested that
witnesses take a place at the right of the Chair, on a level
with the Secretary's desk; but at the suggestion of the
managers and several Senators a place on the floor in front of
the Secretary desk was assigned to the witnesses.
---------------------------------------------------------------------------
\264\ July 6, 1876, 44-1, Record of trial, p. 179.
---------------------------------------------------------------------------
Later in the trial Senator Randolph, of New Jersey, said:
Mr. President, is there any objection on the part of
the Senate and counsel to have the witness stand at
your right or left? So far as I am concerned, it is
utterly impossible for me to hear one word out of three
that is spoken. It has been so during the whole time.
If I take the seat of another Senator, it is at his
inconvenience. This is my seat. I have no right to
another, but I have a right to hear what is said.
The President pro tempore said:
The Chair will state to the Senator that he
designated a little higher place for the witnesses, but
the managers and counsel thought it would be preferable
to have the witness in front of the desk, and the Chair
submitted that to the Senate, and, as there was no
objection, the witnesses were placed there.\265\
---------------------------------------------------------------------------
\265\ July 6, 1876, 44-1, Record of trial, p. 182.
---------------------------------------------------------------------------
The President pro tempore then put the request to the
Senate and it was ordered that the witnesses stand on the right
of the Chair on a level with the Secretary's desk.
Stand While Testifying:
On Monday, April 6, 1936 Legislative day of Monday,
February 24, 1936), the following occurred:
Mr. King. Pursuant to the practice heretofore
observed in impeachment cases, I send to the desk an
order, and ask for its adoption.
The Vice President. The order will be stated.
The legislative clerk read as follows:
Ordered, That the witnesses shall stand while giving
their testimony.
The Vice President. Is there objection to the
adoption of the order? The Chair hears none, and the
order is entered.\266\
---------------------------------------------------------------------------
\266\ April 6, 1936, 74-2, Record, of trial, p. 4971.
---------------------------------------------------------------------------
Subpena Disregarded, Witness Admonished:
A witness in the trial of Judge Robert Archbald in 1912 was
subpenaed by the Senate but did note appear. Not the following:
Ordered, That an attachment do issue in accordance
with the rules of the Senate of the United States for
one J. H. Rittenhouse, witness heretofore duly
subpenaed in this proceeding on behalf of the managers
of the House of Representatives.
Later on the same day Mr. Manager Clayton stated that the
witness, James H. Rittenhouse, had appeared and was now in the
corridor and asked that he be admonished to be present until
discharged.
The President pro tempore. The witness will be
brought into the presence of the Senate.
James H. Rittenhouse appeared in the Chamber.
The President pro tempore. Mr. Witness, you are
brought before the Senate to be admonished that you
must scrupulously obey the orders you have received in
the summons to appear here and not be absent yourself
without leave of the Senate. You may now retire.\267\
---------------------------------------------------------------------------
\267\ December 5, 1912, 62-3, Senate Journal, p. 318, Record, p.
152.
---------------------------------------------------------------------------
Subpenas, Summoned at Public Expense:
In the trial of Secretary of War Belknap, the following
order was adopted:
Ordered, That the Secretary issue subpenas that may
be applied for by the respondent for such witnesses, to
be summoned at the expense of the United States, as
shall be allowed by a committee, to consist of Senators
Frelinghuysen, Thurman, and Christiancy; and that
subpenas for all other witnesses for the respondent
shall contain the statement that the witness therein
named are to attend upon the tender on behalf of the
respondent of their lawful fees.\268\
---------------------------------------------------------------------------
\268\ June 17, 1876, 44-1, Senate Journal, p. 959.
---------------------------------------------------------------------------
Vl. SEQUENCE OF EVENTS AT THE CLOSE OF A TRIAL
1. Following the Completion of the Presentation of Witnesses and
Documents, Orders Were Adopted by the Senate Setting the Time for the
Final Arguments
This procedure has varied but the general outline can be
seen below from the trials of Judge Halsted L. Ritter, Judge
Harold Louderback, and President Andrew Johnson.
In the Johnson case, as many managers or counsel for the
President as desired to do so were permitted to present final
arguments, the only limitation being that the conclusion should
be by one manager.
Ordered, That as many of the managers and of the
counsel for the President as desired to do so be
permitted to file arguments or to address the Senate
orally, but the conclusion of the oral argument shall
be by one manager, as provided in the 21st rule. (Now
Rule XXII.)
Mr. Manager Logan, under the authority of the
foregoing order, filed a printed argument.\269\
---------------------------------------------------------------------------
\269\ April 22, 1868, 40-2, Senate Journal, p. 921
---------------------------------------------------------------------------
In both the Louderback and Ritter cases, the final
arguments were limited to 4 hours, equally divided between the
managers and counsel with the time allocated as each side saw
fit.
Ordered, That the time for final argument of the case
of Harold Louderback shall be limited to 4 hours, which
said time shall he divided equally between the managers
on the part of the House of Representatives and the
counsel for the respondent, and the time thus assigned
to each side shall be divided as each side for itself
may determine.\270\
---------------------------------------------------------------------------
\270\ May 23, 1933, 73-1, Senate Journal, p. 338.
---------------------------------------------------------------------------
An order, identical in form, was adopted in the Ritter
trial.\271\
---------------------------------------------------------------------------
\271\ April 13, 1936, 74-2, Senate Journal, p. 505.
---------------------------------------------------------------------------
2. After the Completion of Final Arguments, the Senate Went into
Closed Session for Deliberation of the Question
In the Johnson and Louderback trials, the Senate went into
closed session almost immediately after the conclusion of the
final arguments, and in the Ritter case the Senate adjourned
until the next day following the final arguments, and upon
reconvening went into closed session. Note the following
excerpt from the Journal in the Johnson trial:
The Chief Justice stated that the argument in behalf
of the House of Representatives and in behalf of the
President having been closed, the business now in order
was the motion submitted by Mr. Edmunds, on the 24th of
April, that when the arguments shall have been
concluded and the doors closed for deliberation upon
the final question, the official reporters of the
Senate shall take down the debate upon the final
question, to be published in the proceedings.
The Senate resumed the consideration of the said
motion; and
On the question to agree to the amendment proposed by
Mr. Williams on the 27th of April,
On motion by Mr. Anthony to amend the amendment by
inserting at the end thereof the words except by leave
of the Senate, to be had without debate,
Pending the consideration of the motion,
On motion by Mr. Trumbull,
Ordered, That the doors of the galleries be reopened.
On motion by Mr. Wilson, at 3 o'clock p.m., the
Senate took a recess for 15 minutes; at the expiration
of which,
On motion by Mr. Edmunds that the doors of the Senate
be closed for deliberation,
It was determined in the affirmative; and
The doors having been closed,
The Chief Justice stated the question before the
Senate.\272\
---------------------------------------------------------------------------
\272\ May 6, 1868, 40-2, Senate Journal, p. 933.
---------------------------------------------------------------------------
In the case of the Louderback trial the Journal exhibits:
Mr. Sumners, on behalf of the managers on the part of
the House of Representatives, delivered the closing
argument in support of the articles of impeachment.
On motion by Mr. Ashurst, at 3 o'clock and 7 minutes
p.m., that the doors be closed for deliberation.
It was determined in the affirmative.
The Vice President thereupon ordered the Sergeant at
Arms to clear the galleries and close the doors; and
the order having been executed, and the managers on the
part of the House of Representatives, and the
respondent and his counsel, having retired from the
Chamber.\273\
---------------------------------------------------------------------------
\273\ May 24, 1833, 73-1, Senate Journal, p. 338.
---------------------------------------------------------------------------
An excerpt from the Journal of the Ritter trial is set
forth below:
Mr. Sumners having subsequently concluded his
argument,
On motion by Mr. Robinson, at 1 o'clock and 56
minutes p.m.,
The Senate, sitting for the impeachment trial
aforesaid, took a recess, under its order of yesterday,
until 12 o'clock m. tomorrow.
Wednesday, April 15, 1936
impeachment of halsted l. ritter
The Senate, sitting for the trial of the impeachment of
Halsted L. Ritter, United States district judge for the
southern district of Florida, resumed its session.
The respondent, Halsted L. Ritter, together with his
counsel, appeared and they took the seats assigned to them.
The Sergeant at Arms made the usual proclamation.
On motion by Mr. Ashurst, and by unanimous consent, the
Journal of the proceedings of yesterday was approved.
message from the house
On motion by Mr. Robinson,
The impeachment proceedings were temporarily
suspended to permit the Senate, in its legislative
capacity, to receive a message from the House of
Representatives; after which
* * * * * * *
The Senate, sitting for the impeachment trial
aforesaid, resumed its session.
Mr. Robinson raised a question as to the presence of
a quorum;
Whereupon
The Vice President directed the roll to be called;
* * * * * * *
A quorum being present,
On motion by Mr. Ashurst, at 12 o'clock and 10
minutes p.m.,
Ordered, That the doors of the Senate be closed for
deliberation.
The respondent and his counsel withdrew from the
Chamber, and the doors having been closed,
The Senate, sitting for the said trial, proceeded
with its deliberations.\274\
---------------------------------------------------------------------------
\274\ April 14, 1936, 74-2, Senate Journal, p. 505; April 15, 1936,
74-2, Senate Journal, p. 506.
---------------------------------------------------------------------------
3. Either During or After Deliberation Behind Closed Doors in the
Trials Cited Below, the Senate Adopted Orders Setting a Date and Time,
and the Method, for Voting on the Articles of Impeachment
In the Johnson trial several days were spent deliberating
behind closed doors and eventually the Senate allowed the Chief
Justice to determine the method of voting. Once in closed
session a letter was read from the Speaker of the House asking
that the House be notified when the doors of the Senate should
be open. The Senate adopted the following order:
Ordered, That the Secretary inform the House of
Representatives that the Senate sitting for the trial
of the President upon articles of impeachment will
notify the House when it is ready to receive them again
at its bar.\275\
---------------------------------------------------------------------------
\275\ May 6, 1868, 40-2, Senate Journal, p. 933.
---------------------------------------------------------------------------
The Senate then adjourned in closed session and upon
reconvening the Chief Justice stated that the doors would again
be closed unless there was some order to the contrary.\276\
---------------------------------------------------------------------------
\276\ May 7, 1868, 40-2, Congressional Globe Supplement, p. 408.
---------------------------------------------------------------------------
During that day's closed session, and order was agreed to
``that on Tuesday next following, at twelve o'clock m., the
Senate shall proceed to vote without debate on the several
articles of impeachment.''
After several attempts had been made without success to
prescribe the method of putting the question, the whole subject
was ordered to lie upon the table.\277\
---------------------------------------------------------------------------
\277\ May 7, 1868, 40-2, Congressional Globe Supplement, p. 409.
---------------------------------------------------------------------------
The Senate adjourned in closed session again without taking
further action and as a result the Chief Justice sought to
resolve the situation with the following statement:
Senators: In conformity with what seemed to be the
general wish of the Senate when it adjourned last
Thursday, the Chief Justice in taking the vote on the
articles of impeachment, will adopt the mode sanctioned
by the practice in the cases of Chase, Peck, and
Humphreys.
He will direct the Secretary to read the several
articles successively, and after the reading of each
article will put the question of guilty or not guilty
to each senator, rising in his, place, in the form used
in the case of Judge Chase:
Mr. Senator ------, how say you? Is the respondent,
Andrew Johnson, President of the United States, guilty
or not guilty of a high misdemeanor, as charged in this
article?
In putting the question on articles 4 and 6, each of
which charges a crime, the word ``crime'' will be
substituted for the word ``misdemeanor.''
The Chief Justice has carefully considered the
suggestion of the senator from Indiana (Mr. Hendricks),
which appeared to meet the approval of the Senate, that
in taking the vote on the 11th article, the question
should be put on each clause, and has found himself
unable to divide the article as suggested. The article
charges several facts, but they are so connected that
they make but one allegation, and they are charged as
constituting one misdemeanor.
The first fact charged is, in substance, that the
President publicly declared in August, 1866, that the
39th Congress was a Congress of only part of the States
and not a constitutional Congress, intending thereby to
deny its constitutional competency to enact laws or
propose amendments of the Constitution; and this charge
seems to have been made as introductory, and as
qualifying that which follows, namely, that the
President in pursuance of this declaration attempted to
prevent the execution of the tenure-of-office act by
contriving and attempting to contrive means to prevent
Mr. Stanton from resuming the functions of Secretary of
War after the refusal of the Senate to concur in his
suspension, and also by contriving and attempting to
contrive means to prevent the execution of the
appropriation act of March 2, 1867, and also to prevent
the execution of the rebel States governments act of
the same date.
The gravamen of the article seems to be that the
President attempted to defeat the execution of the
tenure-of-office act, and that he did this in pursuance
of a declaration which was intended to deny the
constitutional competency of Congress to enact laws or
propose constitutional amendments, and by contriving
means to prevent Mr. Stanton from resuming his office
of Secretary, and also to prevent the execution of the
appropriation act and the rebel States governments act.
The single substantive matter charged is the attempt to
prevent the execution of the tenure-of-office act; and the
other facts are alleged either as introductory and exhibiting
this general purpose, or as showing the means contrived in
furtherance of that attempt.
This single matter, connected with the other matters
previously and subsequently alleged, is charged as the high
misdemeanor of which the President is alleged to have been
guility.
The general question, guilty or not guilty of a high
misdemeanor as charged, seems fully to cover the whole charge,
and will be put as to this article as well as to the others,
unless the Senate direct some mode of division.
In the 10th article the division suggested by the senator
from New York (Mr. Conkling) may be more easily made. It
contains a general allegation to the effect that on the 18th of
August, and on other days, the President, with intent to set
aside the rightful authority of Congress and bring it into
contempt, delivered certain scandalous harangues, and therein
uttered loud threats and bitter menaces against Congress and
the laws of the United States, enacted by Congress, thereby
bringing the office of President into disgrace, to the great
scandal of all good citizens, and sets forth, in three distinct
specifications, the harangues, threats, and menaces complained
of.
In respect to this article, if the Senate sees fit so to
direct, the question of guilty or not guilty of the facts
charged may be taken in respect to the several specifications,
and then the question ofguilty or not guilty of a high
misdemeanor as charged in the article can also be taken.
The Chief Justice, however, sees no objection to putting
the general question on this article in the same manner as on
the others, for, whether particular questions be put on the
specifications or not, the answer to the final question must be
determined by the judgment of the Senate, whether or not the
facts alleged in the specifications have been sufficiently
proved, and whether, if sufficiently proved, they amount to a
high misdemeanor within the meaning of the Constitution.
On the whole, therefore, the Chief Justice thinks
that the better practice will be to put the general
question on each article without attempting to make any
subdivision, and will pursue this course if no
objection is made. He will, however, be pleased to
conform to such directions as the Senate may see fit to
give in this respect.
Whereupon
Mr. Sumner submitted the following order; which was
considered by unanimous consent and agreed to:
Ordered, That the questions be put as proposed by the
presiding officer of the Senate, and each senator shall
rise in his place and answer ``guilty,'' or ``not
guilty,'' only.\278\
---------------------------------------------------------------------------
\278\ May 11, 1868, 40-2, Senate Journal, pp. 939-940.
---------------------------------------------------------------------------
Proceeding further in closed session the order quoted below
was adopted notifying the House that the Senate would receive
them the next day
Ordered, That the Secretary be directed to inform the
House of Representatives that the Senate, sitting for
the trial of the President of the United States upon
articles of impeachment, will be ready to receive the
House of Representatives in the Senate chamber on
Tuesday, the 12th of May, at 12 o'clock m.\279\
---------------------------------------------------------------------------
\279\ May 11, 1868, 40-2, Senate Journal, p. 940.
---------------------------------------------------------------------------
No further orders were adopted in closed session. The
Senate convened the next day in open session, and due to the
illness of a Senator, any vote on the articles of impeachment
was postponed for four days. It was in open session that the
following orders regarding the method of voting were adopted:
Ordered, That the Chief Justice, in directing the
Secretary to read the several articles of impeachment,
shall direct him to read the 11th article first, and
the question shall then be taken on that article, and
thereafter on the other ten successively as they stand.
The managers on the part of the House of
Representatives, to wit: Mr. Bingham, Mr. Boutwell, Mr.
James F. Wilson, Mr. Butler, Mr. Thomas Williams, Mr.
Logan, and Mr. Thaddeus Stevens, entered the Senate
chamber and took the seats assigned them.
The Sergeant-at-arms announced the presence, at the
door of the Senate chamber, of the House of
Representatives; and
The House of Representatives, as in Committee of the
Whole House, preceded by its chairman, Mr. Ellihu B.
Washburne, and accompanied by its Speaker and Clerk,
entered the Senate chamber and took the seats provided
for them.
Mr. Stanbery, Mr. Evarts, Mr. Nelson, and Mr.
Groesbeck, of counsel for the President, appeared at
the bar of the Senate and took the seats assigned them.
Mr. Edmunds submitted the following motion; which was
considered, by unanimous consent, and agreed to:
Ordered, That the Senate now proceed to vote upon the
articles according to the rules of the Senate.\280\
---------------------------------------------------------------------------
\280\ May 16, 1868, 40-2, Senate Journal, p. 942
---------------------------------------------------------------------------
In the Louderback trial there is no record of any order
being adopted in closed session, but immediately upon returning
to open session, the following order concerning the method of
voting was adopted:
Ordered, That upon the final vote in the pending
impeachment of Harold Louderback, the Secretary shall
read the articles of impeachment separately and
successively, and when the reading of each article
shall have been concluded the Presiding Officer shall
state the question thereon as follows:
Senators, how say you? Is the respondent, Harold
Louder back, guilty or not guilty as charged in this
article?
Thereupon the roll of the Senate shall be called, and
each Senator, as his name is called, unless excused,
shall arise in his place and answer ``Guilty'' or ``Not
guilty.'' \281\
---------------------------------------------------------------------------
\281\ May 24, 1933, 73-1, Senate Journal, p. 339
---------------------------------------------------------------------------
In the Ritter trial two orders were adopted, the first in
closed session and the second immediately upon resuming open
session:
Ordered, That when the Senate, sitting as a court,
concludes its session on today it take a recess until
12 o'clock m. tomorrow, and that upon the convening of
the court on Friday it proceed to vote upon the various
articles of impeachment.
Ordered, That upon the final vote in the pending
impeachment of Halsted L. Ritter, the Secretary shall
read the articles of impeachment separately and
successively, and when the reading of each article
shall have been concluded the Presiding Officer shall
state the question thereon as follows:
``Senators, how say you? Is the respondent, Halsted
L. Ritter guilty or not guilty?''
Thereupon the roll of the Senate shall be called, and
each Senator as his name is called, unless excused,
shall arise in his place and answer ``guilty'' or ``not
guilty.'' \282\
---------------------------------------------------------------------------
\282\ April 16, 1936, 74-2, Senate Journal, p. 506.
---------------------------------------------------------------------------
In adopting S. Res. 479, 99th Congress, 2d Session,
the Senate added a new paragraph to Rule XXIII whose
heading reads ``Form of putting the question on each
article of impeachment.'' This addition largely
formalizes the fairly simple practice in putting the
final question in the two most recent impeachment
trials, the Louderback and Ritter impeachment trials.
It provides that ``The Presiding Officer shall first
state the question: thereafter each Senator, as his
name is called, shall rise in his place and answer:
guilty or not guilty.'' This contrasts with the more
cumbersome and time consuming procedure used at an
earlier time, such as during the Johnsontrial, when the
Chief Justice directed the Secretary of the Senate to call the names of
the Senators, and as each rose in his place, the question was repeated
anew to him as well as soliciting his position thereon. (Senate Report
99-401: 99th Congress, 2d Session.)
4. Provision Was Also Made for the Filing of Opinions Following the
Votes by Individual Senators
In the Johnson and Louderback cases, the Senators were
given two days to file written opinions to be published with
the Record of proceedings, as follows:
Ordered, That when the Senate adjourns to-day it
adjourn to meet on Monday next, at 11 o'clock a.m., for
the purpose of deliberation under the rules of the
Senate sitting on the trial of impeachment, and that on
Tuesday next following, at 12 o'clock m., the Senate
shall proceed to vote, without debate, on the several
articles of impeachment, and each senator shall be
permitted to file, within two days after the vote shall
have been so taken, his written opinion to be printed
with the proceedings.\283\
---------------------------------------------------------------------------
\283\ May 7, 1868, 42, Senate Journal, pp. 936-37.
* * * * * * *
---------------------------------------------------------------------------
Ordered, That upon the final vote in the pending
impeachment of Harold Louderback, each Senator may,
within 2 days after the final vote, file his opinion in
writing to be published in the printed proceedings in
the case.\284\
---------------------------------------------------------------------------
\284\ May 24, 1933, 73-1, Senate Journal, p. 339.
---------------------------------------------------------------------------
In the Ritter trial, four days were allowed.
Ordered, That upon the final vote in the pending
impeachment of Halsted L. Ritter each Senator may,
within 4 days after the final vote, file his opinion in
writing, to be published in the printed proceedings in
the case.\285\
---------------------------------------------------------------------------
\285\ April 16, 1936, 74-2, Senate Journal, p. 506.
---------------------------------------------------------------------------
5. At the Arrival of the Time Set by Previous Order, the Secretary Read
the First Article of Impeachment To Be Voted On, Followed by the Clerk
Calling the Roll
In the Johnson trial, as each Senator's name was called, he
rose in his place and the Chief Justice propounded the question
whether or not the President was guilty as charged.
The Chief Justice directed the Secretary to call the
names of the senators.
Each senator, as his name was called, rose in his
place and the Chief Justice proposed to him the
following question:
Mr. Senator ------, how say you? Is the
respondent, Andrew Johnson, President of the
United States, guilty, or not guilty, of high
misdemeanor, as charged in this article of
impeachment? \286\
---------------------------------------------------------------------------
\286\ May 16, 1868, 40-2, Senate Journal, p. 943.
---------------------------------------------------------------------------
In the Louderback and Ritter cases, however, the Presiding
Officer simply stated the question before the roll was called,
at which point each Senator rose in his place and answered
``guilty'' or ``not guilty.'' \287\
---------------------------------------------------------------------------
\287\ May 24, 1933, 73-1, Senate Journal, p. 339; April 17, 1936,
74-2, Senate Journal, p. 507.
---------------------------------------------------------------------------
During the trial of Judge Ritter, the Majority Leader,
Senator Joseph T. Robinson, of Arkansas, announced that on
these votes pairs would neither be arranged or recognized, but
the Presiding Officer stated that a Senator could ask to be
excused from voting on any article.
In the trial of Secretary of War Belknap in 1876, an order
was adopted to allow each Senator when his name was called to
vote on each article of impeachment, and to state his reasons
for his vote, with a time limit of one minute on such reasons.
This provision was taken advantage of as numerous Senators not
only voted on the articles of impeachment, but also explained
their votes as they did so.\288\
---------------------------------------------------------------------------
\288\ July 31, 1876, 44-1 Senate Journal, p. 990.
---------------------------------------------------------------------------
Rule XXIII, which deals generally with voting the final
question, was amended in several important ways by the adoption
of S. Res. 479, 99th Congress, 2d Session, on August 16, 1986.
A pair of new restrictions were added at the beginning of the
rule. These read as follows:
An article of impeachment shall not be divisible for
the purpose of voting thereon at any time during the
trial. Once voting has commenced on an article of
impeachment, voting shall be continued until voting has
been completed on all articles of impeachment unless
the Senate adjourns for a period not to exceed one day
or adjourns sine die.
The portion of the amendment effectively enjoining the
division of an individual article into separate specifications
is proposed to permit the most judicious and efficacious
handling of the final question both as a general matter and, in
particular, with respect to the form of the articles that
proposed the impeachment of President Richard M. Nixon.
The provision requiring the Senate to dispose of the final
question once it has commenced voting the articles of
impeachment or, alternatively, either adjourn for 24 hours or
without day, is intended to prevent a recurrence of the
incident during the President Andrew Johnson trial when the
Senate having failed to convict on the first article to be
voted (No. 11) proceeded to adjourn for fourteen days before
considering the other articles. (Senate Report 99-401: 99th
Congress, 2d Session.)
6. Following the Vote on Each Article, the Presiding Officer Pronounces
the Decision. Once the Judgment of the Senate has Been Pronounced on
the Articles of Impeachment, the Trial Might Progress in Two Ways. If
the Respondent Was Found Not Guilty on All Charges, the Verdict of
Acquittal Was Announced and the Senate Sitting as a Court of
Impeachment Adjourned Sine Die. If the Respondent Was Found Guilty of
Any of the Charges, the Judgment of Removal and Possible
Disqualification From Ever Holding an Office of Trust or Profit Under
the United States Was Presented as Illustrated in the Three Cases Cited
Below:
In the Archbald case, votes were taken on thirteen articles
of impeachment. He was convicted on five of the thirteen, and
each time, following the vote on the five articles on which he
was convicted, the Presiding Officer made his announcement, as
illustrated below:
The President pro tempore announced that upon the
thirteenth article of impeachment 42 Senators had voted
``guilty'' and 20 Senators had voted ``not guilty.''
More than two-thirds of the Senators present having
voted ``guilty,'' the respondent, Robert W. Archbald,
stood convicted of the charges in said thirteenth
article.\289\
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\289\ January 13, 1913, 62-3, Senate Journal, p. 332.
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Following the vote on all thirteen articles of impeachment,
Senator James A. O'Gorman of New York introduced the following
resolution:
Ordered, That the respondent, Robert W. Archbald,
circuit judge of the United States from the third
judicial circuit and designated to serve in the
Commerce Court, be removed from office and be forever
disqualified from holding and enjoying any office of
honor, trust, or profit under the United States.\290\
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\290\ January 13, 1913, 62-3, Senate Journal, p. 332.
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A division was demanded and the first part of the resolution,
which simply pronounced the judgment that Judge Archbald be
removed from office, was agreed to by voice vote. A yea and nay
vote was ordered on the second portion providing that he be
forever disqualified from holding office under the United
States, and this was adopted also.
At this point tbe President pro tempore pronounced the
judgment of the Senate as follows:
The Senate therefore do order and decree, and it is
hereby adjudged, that the respondent Robert W.
Archbald, circuit judge of the United States from the
third judicial circuit, and designated to serve in the
Commerce Court, be, and he is hereby, removed from
office; and that he be and is hereby forever
disqualified to hold and enjoy any office of honor,
trust, or profit under the United States.\291\
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\291\ January 13, 1913, 62-3, Senate Journal, p. 332.
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And it was further resolved that
. . . the Secretary be directed to communicate to the
President of the United States and to the House of
Representatives the foregoing order and judgment of the
Senate and transmit a certified copy of the same to
each.\292\
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\292\ Ibid.
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Whereupon the Senate sitting as a court of impeachment adourned
sine die.
In the trial of Andrew Johnson, having voted on three
articles without securing conviction on any, motion was made
that the Senate sitting for the trial of the President adjourn
sine die, and a yea and nay vote was taken. Before announcing
the result, however, the Chief Justice reminded the Senate that
the rule provides that ``if the impeachment shall not, upon any
of the articles presented, be sustained by the votes of two-
thirds of the members present, a judgment of acquittal shall be
entered,'' \293\ and after an interruption by a Senator who
suggested ``that that was done when the President of the Senate
declared the acquittal upon each article,'' the Chief Justice
continued:
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\293\ May 26, 1868, 402, Congressional Globe Supplemental, p. 415.
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That is not the judgment of the Senate; but if there
be no objection, the judgment will be entered by the
Clerk.
The Presiding Officer then stated:
The Clerk will enter, if there be no objection, a
judgment according to the rules--a judgment of
acquittal.\294\
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\294\ Ibid.
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The Journal's description follows:
The Senate having tried Andrew Johnson, President of
the United States, upon articles of impeachment
exhibited against him by the House of Representatives,
and two-thirds of the Senators present not having found
him guilty of the charges contained in the second,
third, and eleventh articles of impeachment, it is
therefore
Ordered and adjudged, That the said Andrew Johnson,
President of the United States, be, and he is,
acquitted of the charges in said articles made and set
forth.
The Chief Justice then announced the vote on the
motion of Mr. Williams to be yeas 34, nays 16; And,
thereupon, declared the Senate, sitting as a court of
impeachment for the trial of Andrew Johnson, President
of the United States, upon articles of impeachment
exhibited against him by the House of Representatives,
adjourned without day.\295\
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\295\ May 26, 1868, 40-2, Senate Journal, p. 951.
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For other cases of pronouncing judgment, see also June 26,
1862, 37-2 Senate Journal, p. 904; July 31, 1876, 44-1, Senate
Journal, p. 1012; January 31, 1831, 21-2, Senate Journal, p.
341; February 27, 1905, 58-3, Senate Journal, p. 369.
In the trial of Halsted L. Ritter in 1936, following the
vote on the seventh and last article of impeachment, the only
article on which he was convicted, the President pro tempore
made the following statement:
The President pro tempore. On the seventh article of
impeachment, 56 Senators have voted ``guilty'' and 28
Senators have voted ``not guilty.'' Two-thirds of the
members present having voted ``guilty,'' the Senate
adjudges the respondent guilty as charged in this
article.\296\
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\296\ April 17, 1936, 74-2, Record, p. 5606.
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At this point, Senator Henry Ashurst, of Arizona, sent to the
desk an order for judgment, providing that:
Ordered, That the respondent, Halsted L. Ritter,
United States district judge for the southern district
of Florida, be removed from office.\297\
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\297\ April 17, 1936, 74-2, Record, p. 5607.
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The following colloquy then occurred:
The President pro tempore. Are the yeas and nays
desired on the question of agreeing to the order?
Mr. Ashurst. The yeas and nays are not necessary.
Mr. Johnson. Mr. President, how, affirmatively, do we
adopt the order, unless it is put before the Senate,
and unless the roll be called upon it or the Senate
otherwise votes?
The President pro tempore. The Chair is of the
opinion that the order would follow the final vote as a
matter of course, and no vote is required.
Mr. Ashurst. Mr. President, the vote of guilty, in
and of itself, is sufficient without the order, under
the Constitution, but to be precisely formal I have
presented the order, in accordance with established
precedent, and I ask for a vote on its adoption.
Mr. Hastings. Mr. President, will the Senator yield?
Mr. Ashurst. I yield.
Mr. Hastings. Just what is the language in the
Constitution as to what necessarily follows conviction
on an article of impeachment?
Mr. McGill. It is found in section 4, article II, of
the Constitution.
Mr. Hastings. What is the language of the
Constitution which makes removal from office necessary,
and to follow as a matter of course?
Mr. McGill. Mr. President----
Mr. Ashurst. If the Senator from Kansas has the
reference, I shall ask him to read it.
Mr. McGill. Section 4 of article II of the
Constitution reads:
The President, Vice President, and all civil
officers of the United States shall be removed
from office on impeachment for, and conviction
of treason, bribery, or other high crimes and
misdemeanors.
Mr. Hastings. I thank the Senator. Then may I suggest
was not the Chair correct in the first instance? Does
not the removal from office follow without any vote of
the Senate?
The President pro tempore. That was the opinion of
the Chair.
Mr. Hastings. I think the President pro tempore was
correct.
The President pro tempore. The Chair will then direct
that the order be entered.
Mr. Norris. Mr. President, upon the action of the
Senate why does not the Chair make the proper
declaration without anything further?
The President pro tempore. The Chair was about to do
so. The Chair directs judgment to be entered in
accordance with the vote of the Senate as follows:
Judgment
The Senate having tried Halsted L. Ritter,
United States district judge for the southern
district of Florida, upon seven separate
articles of impeachment exhibited against him
by the House of Representatives, and two-thirds
of the Senators present having found him guilty
of charges contained therein: It is therefore
Ordered and adjudged, That the said Halsted
L. Ritter be, and he is hereby, removed from
office.\298\
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\298\ April 17, 1936, 74-2, Journal, p. 512.
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On the final question as to whether an impeachment is
sustained, the yeas and nays are taken on each article
separately, and if an impeachment is not sustained by a two-
thirds vote on any article, a judgment of acquittal shall be
entered. If on the other hand, the respondent be convicted by a
two-thirds vote on any article, the Senate shall pronounce
judgment and a certified copy of the judgment is deposited with
the Secretary of State (Rule XXIII).
At the conclusion of the trial of Judge Louderback in 1933,
the Vice President made the following statement:
The Senate having tried Harold Louderback, judge of
the District Court of the United States for the
Northern District of California, upon five articles of
impeachment exhibited against him by the House of
Representatives, and two-thirds of the Senators present
not having found him guilty of the charges contained
therein: It is therefore
Ordered and adjudged, That the said Harold Louderback
be, and he is acquitted of all the charges in said
articles made and set forth.\299\
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\299\ May 24, 1933, 73-1, Senate Journal, p. 344.
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All Articles Need Not Be Voted On:
A previous provision in Rule XXIII reads:
``. . . but if the person accused in such articles of
impeachment shall be convicted upon any of said
articles by the votes of two-thirds of the members
present, the Senate shall proceed to pronounce judgment
and a certified copy of such judgment shall be
deposited in the office of the Secretary of State.''
The Senate substituted the following in adopting S.
Res. 479, 99th Congress, 2d Session, on August 16,
1986.
``. . . but if the person impeached shall be
convicted upon any such article by votes of two-thirds
of the members present the Senate may proceed to the
consideration of such other matters as may be
determined to be appropriate prior to pronouncing
judgment. Upon pronouncing judgment, a certified copy
of such judgment shall be deposited in the office of
the Secretary of State.''
The previous text of Impeachment Rule XXIII virtually
required the Senate to enter judgment if the person
impeached
``. . . be convicted upon . . . articles by the vote of
two-thirds of the members present.'' Under terms of the
new provision the Senate may take up such matters as
the desirability of voting on all of the articles after
conviction on one of them before entering a judgment
conviction. It is expected that flexibility allowed by
the change will expedite the proceedings. Since under
the prevailing view a two-thirds vote to convict on any
article operates as an automatic removal from office,
the Senate may not wish to vote the other articles.
Also, it is contemplated that the Senate, in the
interval allowed by this new version of the rule, may
wish to consider whether or not to vote the additional
consequence provided by the Constitution in the case of
an impeached and convicted civil officer, viz:
permanent disqualification from elected or appointive
office. (Senate Report 99-401: 99th Congress, 2d
Session.)
Motion To Reconsider Not In Order:
Senate adoption of S. Res. 479, 99th Congress, 2d Session,
on August 16, 1986, added a new sentence at the end of Rule
XXXIII providing that ``A motion to reconsider the vote by
which any article of impeachment is sustained or rejected shall
not be in order.'' The purpose of this restriction is to
obviate the confusion that would invariably attend a reversal
of a vote to convict when, according to most authorities, such
a vote operates automatically and instantaneously to separate
the person impeached from the office. Under ordinary
circumstances the Senate has two days for reconsideration.
Since the trial rules are silent with respect to a motion to
reconsider, the rules of the Senate applicable to legislative
matters would apply. Consequently, the effect of this change is
to preclude the operation of the normal rule in the context of
a vote on the final question, whether such vote is to convict
or to acquit. (Senate Report 99-401: 99th Congress, 2d
Session.)
7. Following the Verdict of Guilty or Not Guilty, or the Pronouncement
of Judgment, and the Disposition of the Disqualification From Holding
Office of Trust or Profit, If Presented, the Senate Sitting as a Court
of Impeachment Adjourned Sine Die.
In the Johnson trial, following the vote on three of the
articles of impeachment, and without voting on the other eight,
the Senate adjourned sine die. Note the following extract from
the Journal:
The Chief Justice announced that upon this article
thirty-five senators had voted ``guilty,'' and nineteen
senators had voted ``not guilty,'' and declared that
two-thirds of the senators present not having
pronounced him guilty, Andrew Johnson, President of the
United States, Stood acquitted of the charges contained
in the third article.
Thereupon
Mr. Williams moved that the Senate sitting for the
trial of the President upon articles of impeachment do
not adjourn without day.
On the question to agree to the motion, Mr. Williams
asked that the question be taken by yeas and nays; and
the yeas and nays being desired by one-fifth of the
senators present.
* * * * * * *
The Chief Justice stated that before announcing the
result of the vote just taken, he desired to call the
attention of the Senate to the 22d rule, which provides
that ``if that impeachment shall not, upon any of the
article presented, be sustained by the votes of two-
thirds of the members present,'' a judgement of
acquittal shall be entered; and that if not objected
to, he would direct the Secretary to enter a judgement
of acquittal according to this rule; and
No objection being made, the Secretary, by direction
of the Chief Justice, entered the judgement of the
Senate upon the second, third, and eleventh articles,
as follows:
The Senate having tried Andrew Johnson, President of
the United States, upon articles of impeachment
exhibited against him by the House of Representatives,
and two-thirds of the senators present not having found
him guilty of the charges contained in the second,
third, and eleventh articles of impeachment, it is
therefore
Ordered and adjudged, That the said Andrew Johnson,
President of the United States be, and he is, acquitted
of the charges in said articles made and set forth.
The Chief Justice then announced the vote on the
motion of Mr. Williams to be yeas 34, nays 16;
And, thereupon,
Declared the Senate, sitting as a court of
impeachment for the trial of Andrew Johnson, President
of the United States, upon articles of impeachment
exhibited against him by the House of Representatives,
adjourned without day.\300\
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\300\ May 26, 1868, 40 2, Senate Journal, pp. 950-51.
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In the Louderback and Ritter trials, all of the articles of
impeachment were voted on and the judgement of the Senate
pronounced before a motion was made to adjourn sine die as
follows. In the Louderback trial:
No objection being made, the Vice President entered
the following judgment of acquittal:
The Senate having tried Harold Louderback, judge of
the District Court of the United States for the
Northern District of California, upon five several
articles of impeachment exhibited against him by the
House of Representatives, and two thirds of the
Senators present not having found him guilty of the
charges contained therein: It is therefore
Ordered and adjudged, That the said Harold Louderback
be, and he is, acquitted of all the charges in said
articles made and set forth.
On motion by Mr. Ashurst, at 6 o'clock and 5 minutes
p.m.,
The Senate, sitting for the impeachment trial
aforesaid, adjourned sine die.\301\
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\301\ May 24, 1933, 73-1, Senate Journal, p. 344.
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In the Ritter trial, after agreeing to the seventh article by a
two-thirds vote, the only article on which he was convicted,
the following occurred:
JUDGMENT
The Senate having tried Halsted L. Ritter, United
States district judge for the southern district of
Florida, upon seven separate articles of impeachment
ehihited against him by the House of Representatives,
and two-thirds of the Senators present having found him
guilty of charges contained therein: It is therefore
Ordered and adjudged, That the said Halsted L. Ritter
be, and he is hereby, removed from office.
Mr. Ashurst submitted the following supplemental
order:
Ordered further, That the respondent, Halsted L.
Ritter, United States district judge for the southern
district of Florida, be forever disqualified from
holding and enjoying any office of honor, trust, or
profit under the United States.
The President pro tempore, in response to a
parliamentary inquiry by Mr. Hastings if the question
were not debatable, held that the rules governing
impeachment proceedings required that all orders or
decisions should be determined without debate, but that
the yeas and nays might be ordered.
Mr. Duffy submitted a parliamentary inqury whether a
majority or a two-thirds vote was required to adopt the
order.
Mr. Ashurst thereupon said: ``Mr. President, in reply
to the inquiry, I may say that in the Archbald case
that very question arose. A Senator asked that a
question be divided, and on the second part of the
order, which was identical with the order now proposed,
the yeas and nays were ordered, and the result was yeas
39, nays 35, so the order further disqualifying
respondent from holding any office of honor, trust, or
profit under the United States was entered. It requires
only a majority vote.''
The question then being taken on agreeing to the
proposed order,
It was determined in the negative,
Yeas -------------- 0
Nays -------------- 76
* * * * * * *
So the order was not agreed to.
Mr. Ashurst submitted the following order, which was
considered and agreed to:
Ordered, That the Secretary be directed to
communicate to the President of the United States and
to the House of Representatives the order and judgment
of the Senate in the case of Halsted L. Ritter and
transmit a certified copy of same to each.
On motion by Mr. Ashurst, at 1 o'clock and 50 minutes
p.m.,
The Senate, sitting for the trial of the impeachment
of Halsted L. Ritter, United States district judge for
the southern dis trict of Florida, adjourned sine
die.\302\
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\302\ April 17, 1936, 74-2, Senate Journal, p. 512.