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H.Res. 744 (116th): Expressing the sense of the House of Representatives that the Senate should amend its rules to require a sitting United States Senator actively seeking election to the Presidency of the United States to recuse himself or herself from the impeachment trial of an incumbent President of the United States who is serving his or her first term in office.


Should Democratic presidential candidates have to withdraw from President Trump’s imminent Senate trial?

Context

After the House impeached President Trump on December 18, the Senate will begin his impeachment trial in January, which could potentially remove him from office. The idea as laid out in the Constitution is that the 100 senators would act impartially as unbiased jurors. (In theory.)

The Constitution anticipated potential conflicts of interest occurring during a Senate trial. The document specifies that the vice president — who is usually supposed to preside over the Senate — is replaced with the Supreme Court’s chief justice during an impeachment trial instead.

Currently, five U.S. senators are active Democratic presidential candidates: Sens. Michael Bennet (D-CO)Cory Booker (D-NJ)Amy Klobuchar (D-MN)Bernie Sanders (I-VT), and Elizabeth Warren (D-MA). Can they truly remain unbiased as jurors in a Trump trial, while simultaneously campaigning to oust him from office?

What the resolution does

House Resolution 744 would express “the sense of the House of Representatives” that any senator officially seeking the presidency against the incumbent should recuse themselves from an impeachment trial.

The House and Senate each set their own internal rules for their respective chambers. So this House resolution would essentially request the Senate amend its own internal rules, rather than officially doing so upon hypothetical passage by the House.

It was introduced in the House on December 5 by Rep. Jason Smith (R-MO8). (The resolution does not appear to have an official title, as most pieces of congressional legislation usually do.)

What supporters say

Supporters argue that recusal by active presidential candidates would prevent maltreatment by supposedly-impartial jury members.

“Just how the Founding Fathers understood the clear conflict of interests that the vice president would have in an impeachment proceeding, there too exists a conflict of interest for a number of Senators who are trying to become their party’s nominee and face Trump at the ballot box,” Rep. Smith said in a press release.

“This resolution is all about fairness,” Rep. Smith continued. “No senator should participate in this trial when they are able to abuse their power in the United States Senate by attempting to remove their political opponent and help their own political ambitions.”

What opponents say

Opponents counter that the senators who should really recuse themselves aren’t any Democratic presidential candidates, but Republicans such as Senate Majority Leader Mitch McConnell (R-KY).

Opponents may also note that the 95 senators who aren’t active presidential candidates haven’t been called upon to recuse themselves, despite their own biases. Most prominently, Sen. McConnell is coordinating with the White House and has publicly predicted a Trump acquittal.

“Senator McConnell has promised to sabotage that trial and he must recuse himself,” Rep. Val Demings (D-FL10) said in a press release. “No court in the country would allow a member of the jury to also serve as the accused’s defense attorney.”

“The moment Senator McConnell takes the oath of impartiality required by the Constitution, he will be in violation of that oath,” Rep. Demings continued. :He has effectively promised to let President Trump manage his own impeachment trial. The Senator must withdraw.”

Odds of passage

Odds of House passage are slim to none in the Democratic-controlled chamber — and even if it did pass there, it wouldn’t directly have an effect on the Senate except as a pressuring mechanism.

What this resolution could do is inspire the Republican-controlled Senate to pass a similar measure, governing its own internal process for the impeachment trial. Odds of that are possible, though still low.

The resolution has attracted 31 Republican cosponsors and awaits a potential vote in the House Rules Committee.

Last updated Jan 10, 2020. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Dec 5, 2019.


This resolution urges the Senate to amend its rules to require a sitting Senator actively seeking election to the presidency of the United States to recuse himself or herself from the impeachment trial of an incumbent President who is serving his or her first term in office.