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Opinion
Noah Feldman

A Brief Guide to the Weird Constitutional Rules on Impeachment

The Senate pretty much gets to invent its own procedure.

There’s a lot of ins, a lot of outs

There’s a lot of ins, a lot of outs

Photographer: Andrew Caballero-Reynolds/AFP/Getty Images

The jockeying has already begun over the structure of President Donald Trump’s Senate trial. Senate Majority Leader Mitch McConnell has discussed it with the White House counsel; Senate Minority Leader Charles Schumer has sent McConnell a letter proposing detailed protocols. All this action, even before the House of Representatives has formally impeached Trump, might be making you wonder: Isn’t there some pre-existing trial protocol required by the Constitution? Do we really have to have a debate about how the trial is going to run before it actually happens?

The short answers are no, there isn’t a clear constitutional mandate for what the Senate trial should look like; and yes, there really does have to be a fight about what procedures the Senate will use in trying Trump. This seems like a crazy way to do things, but it reflects the framers’ recognition that impeachment as they knew it from England had always had a political side, and their reticence about putting too much detail in the Constitution.