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Senators aren’t even allowed to talk during the impeachment trial

The strange rule that threatens lawmakers with “imprisonment.”

Senators can’t talk during the impeachment trial, but they can speak to the press during breaks.
Caroline Brehman/CQ-Roll Call, Inc via Getty Images
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

At the start of each day of the impeachment trial, the Senate sergeant-at-arms issues a rather stern warning: “Hear ye! Hear ye! Hear ye! All persons are commanded to keep silence, on pain of imprisonment.”

Because of rules that have governed the upper chamber since the 1800s, senators are required to stay silent throughout the trial while they serve out their role as jurors. Unlike Senate hearings, which have long offered opportunities to spin up viral moments, the impeachment trial won’t exactly provide this platform.

This particular precedent was first established during Andrew Johnson’s impeachment trial in 1868, and is one of several procedural quirks lawmakers must adhere to while proceedings are underway. In addition to abiding by the ban on chatter, senators must also leave their cellphones — and coffee — outside the chamber. These rules, some of which are odder than others, are broadly intended to keep lawmakers’ focus on the trial, so they can devote their full energy to serving as jurors.

Due to these constraints, senators will spend hours seated at individual wooden desks listening to the House impeachment managers and the president’s defense present their cases, with pen and paper as their sole distraction.

Of course, certain Senate leaders will still be able to speak while making motions during the trial. Others can also step outside the chamber and offer as many comments to the press as they’d like. (Both Republicans and Democrats have seized on this latter outlet, holding press conferences regularly as the trial progresses.)

The rules about gabbing during the trial, while serious, are also somewhat of an empty threat. As Roll Call’s Katherine Tully-McManus writes, no senator has ever been imprisoned for disruptive behavior, though some have been rebuked. At most, a senator would likely be admonished by the chief justice if they were behaving in a way that violated decorum (much like Justice John Roberts did to the prosecutorial and defense teams early Wednesday morning). And though witnesses and reporters have been “jailed” in the past by the sergeant-at-arms, the penalties are not as dire as they sound:

Despite persistent rumors, there is no Senate jail. In contempt of Congress cases, the Senate has occasionally used the sergeant-at-arms’ office, committee space or even a local hotel room for short-term “imprisonment.”

This aspect of the Senate trial is bad news for 2020 candidates

While all senators are limited by these longstanding rules, they pose a specific challenge to several 2020 Democratic candidates who are stuck in Washington while the trial is taking place.

For Sens. Bernie Sanders, Elizabeth Warren, Amy Klobuchar, and Michael Bennet, not only does the timing of the trial mean they’re missing out on crucial campaign time, it also doesn’t provide a huge opportunity for them to generate notable moments. As Ella Nilsen and I reported, these lawmakers plan to make up for this limitation by having surrogates hit the trail in their stead, holding remote events and leveraging social media.

All four have signaled that they’re committed to their constitutional responsibility, but it’s obvious that the trial schedule proves less than ideal with the Iowa caucuses less than two weeks away.

“I would rather be in Iowa today. There’s a caucus there in two and a half weeks. I’d rather be in New Hampshire, and Nevada, and so forth,” Sanders told reporters last week. “But I swore a constitutional oath as a United States senator to do my job, and I’m here to do my job.”

The only catch? He won’t be able to talk much while doing it.

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