Clinic Assists Former Senators in Drafting Impeachment Trial Memorandum


On September 24, 2019, Speaker of the House Nancy Pelosi announced that the House of Representatives would initiate a formal impeachment inquiry against President Donald J. Trump.  On December 18, 2019, the House voted two articles of impeachment against President Trump for high crimes and misdemeanors (H. Res. 755). Shortly after the impeachment inquiry began, the Peter Gruber Rule of Law Clinic at Yale Law School commenced work with former U.S. Senators Russ Feingold (D-WI 1993-2011) and Chuck Hagel (R-NE 1997-2009) to prepare a detailed Memorandum to current U.S. Senators in anticipation of a potential Senate impeachment trial. The Memorandum provides guidance on the Senate’s rules and senators’ roles and obligations during a presidential impeachment trial. After the House of Representatives passed H. Res. 755, the Memorandum was distributed to all sitting U.S. senators.

Former Senators Feingold and Hagel have considerable first-hand experience with Senate presidential impeachment proceedings. During Feingold’s 18 years and Hagel’s 12 years in the Senate, both participated in the impeachment trial of President William J. Clinton in 1999. Both also sat on the impeachment trial of federal judge Walter Nixon, and Senator Hagel served as chief of staff to a Republican Member of the House during the Nixon impeachment proceedings. Given that the pending impeachment trial of President Trump would be only the third in the country’s history, the former Senators offered this memorandum to fill any gaps in public and legislative knowledge.

Part I of the Memorandum thoroughly reviews the Constitution’s language regarding impeachment; the “Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials,” which were last modified in 1986 and govern impeachment proceedings; and the unanimously adopted resolution that formalized the timeline for President Clinton’s impeachment trial. This portion of the Memorandum consolidates formal procedural requirements, precedents from previous impeachment trials—as documented in the Congressional Record—and critical academic commentary into a comprehensive, useable guide that current senators can consult as they prepare for a presidential impeachment trial. Specific topics that are addressed include: key procedural considerations; oaths that should guide senators during an impeachment trial; and the role of the Chief Justice of the Supreme Court as presiding judge.

Part II of the Memorandum builds on Part I and presents a detailed timeline of how a presidential trial is likely to proceed.

Part III of the Memorandum addresses the threshold question of whether the Senate must hold a trial on the articles of impeachment at all. Drawing on the Constitution, Senate precedent, and academic scholarship, the Memorandum concludes that foregoing or dramatically truncating a presidential impeachment trial would contravene senators’ constitutional oaths and constitute a dereliction of constitutional duty.

Finally, Part IV of the Memorandum poses and answers specific questions that are likely to arise during an impeachment trial.

The authors have prepared this Memorandum in a spirit of bipartisanship and fidelity to the Constitution. They hope it will serve as a useful resource to current senators—and indeed to all Americans and observers of the impeachment process—as they seek to understand the unfolding of the Senate’s critical constitutional duty to hold just, impartial and effective presidential impeachment trials.

Yale Law School students and Gruber Rule of Law Clinic members Rosa Hayes ’20, Annie Himes ’21, Dana Khabbaz ’21, Michael Loughlin ’21, Preston Lim ’21, Wajdi Mallat ’20, Mark Stevens ’21, and Brandon Willmore ’21 all contributed to the Memorandum. The Clinic students were led on this matter by the Clinic’s instructors: Sterling Professor of International Law and former Dean Harold Hongju Koh, William O. Douglas Clinical Professor of Law and former Deputy Dean for Experiential Education Michael J. Wishnie ’93, Lecturer in Law Hope Metcalf, and Visiting Clinical Lecturer of Law Phil Spector ’00. Finally, we are grateful to constitutional law expert St. Louis University Vincent C. Immel Professor of Law Emeritus Joel K. Goldstein for his kind and able assistance in reviewing this Memorandum.

What the experts say:

“Russ Feingold and Chuck Hagel served in the Senate with distinction and integrity. In this memo, they lay out in systematic fashion what the Constitution, laws and precedents tell us about how a Senate trial might be conducted and how it should be conducted. Every concerned Citizen should read it and use it to hold senators and the chief justice to the standards our Constitution and political system demand.” —Norman J. Ornstein, American Enterprise Institute


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