On the opening day of the impeachment trial, the Senate, in a party-line vote of 53–47, approved an organizing resolution establishing the ground rules for the trial and rejecting efforts by Democrats to compel the testimony of witnesses and the production of documents not included by the House in its impeachment inquiry. However, the resolution allows Democrats to renew their motions to subpoena witnesses and documents after House managers and the president’s defense lawyers have completed their opening statements. The fateful battle over witnesses will thus begin in earnest next week.
In December, Donald Trump became only the third U.S. president to be impeached. If Senate Majority Leader Mitch McConnell succeeds in his intention to prevent any witnesses from testifying, Trump will become the first president to be acquitted by an unconstitutional impeachment process.
McConnell has created the mistaken impression that the Constitution does not provide any guidance about the impeachment process, and that the procedures for the trial—including motions to call witnesses—can be determined by a majority vote. Although the Senate has broad discretion to set the rules for the trial, Supreme Court Justice Byron White, in a concurring opinion in Nixon v. United States (1993), a case involving the impeachment of federal Judge Walter Nixon, found in the impeachment-trial clause of Article I, Section 3 of the Constitution a limitation on the method by which the Senate can conduct an impeachment proceeding. The text of the clause states, “The Senate shall have the sole Power to try all Impeachments.” Justice White interpreted the word try to mean that the impeachment proceeding must be in the nature of a judicial trial, and concluded that “a procedure that could not be deemed a trial by reasonable judges” would be unconstitutional.