Here’s an argument: An impeachment trial that starts in the 19th Congress makes complete legal sense only if it is concluded during the 19th Congress.
If the trial extends beyond June 30, when 12 newly elected or reelected senators take their oath of office, then the Senate would be changing judges in the middle of the trial. Assume that the Senate of the 20th Congress includes five to seven first-term senators. How can they be expected to render justice in their role as senator-judges if they were not involved in the first stages of the trial?
If evidence has already been presented, would these be presented again? Would witnesses be recalled to repeat their testimony, to benefit the new senator-judges AND to safeguard the rights and interests of the impeached? A trial that spans two Congresses does not only raise worrying legal questions; it creates troubling political implications too.
Is it possible for the trial to start, proceed, and end in the next four months? Yes, but only barely, through two extremely narrow pathways.
First option: The President calls for a special session. Assuming the special session survives the inevitable legal challenge based on the argument that special sessions can only be called to conduct legislative business, not to conduct an impeachment trial, the senators can then convene as a court during the remainder of the campaign period. This option would allow the Senate to use as much of the four months it would need to conclude the trial before June 30.
Second option: The senators convene as an impeachment court in early June, at the start of the last session of the 19th Congress. But that means they only have three weeks or so to conduct an entire trial.
We can be certain that many senators would object to the first option. It won’t only be the seven reelectionists; those senators helping other candidates in the midterms will also likely reject this option. The work of the Senate is not limited to its role in the impeachment process; to promote and protect their legislative agendas, senators need more allies to join them. They will need to be on the campaign trail, or pay close attention to it.
The second option, in turn, runs all the risks of a quickie trial: It will be seen as a rush to judgment, or as trivializing the impeachment process, or as lacking public support and thus the necessary political legitimacy, or, in case of conviction, as precipitating a more intense backlash. There is also the risk — and this is what concerns me the most — of falling short in the calibrated investments in time and public support necessary for the Senate to muster the political will to convict a vice president, even in the face of compelling evidence.
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Political sense
To let the Senate of the 20th Congress conduct the trial — that makes political sense. The senator-judges can have as much time as they need to reach a verdict that will be seen by many as fair. At the same time, they can limit the number of hours the trial will run on session days, allowing them to conduct legislative business at certain hours or on certain days. This approach minimizes or removes many of the risks I mentioned. But it also avoids many of the legal questions that will be provoked by a trial that spans two Congresses.
We understand, an impeachment trial is also a political exercise. But, for that very reason, the Senate must work to create the conditions that will help the public accept even a politically motivated decision.
The impeachment trial must be seen to be fair.
It must not be rushed. Senators must attend to the trial with utmost seriousness. The Senate must allow greater transparency in the process; during the trial, it must communicate to the public constantly and comprehensively, on as many platforms as possible. In case of a conviction, the leadership must anticipate a backlash from Duterte supporters and must work to contain and deflect the outrage. Most important: The Senate must work, if there is in fact compelling evidence of guilt, to prepare the public and generate support for a conviction.
To be sure, this approach raises legal questions of its own too. Does a four-month delay violate the constitutional directive that provides that “trial by the Senate shall forthwith proceed” once the House of Representatives conveys the articles of impeachment to the Senate? More to the point, will the Supreme Court rule that the Senate committed a grave abuse of discretion when it decided on the delayed schedule — even if the decision was supported by a majority consensus, and even if the delay was dictated in part by the circumstances in which the Senate received the articles of impeachment?
And what happens if Duterte, sensing that there may be enough votes for a conviction, decides to resign instead? Will the Senate continue the trial and convict her?
Fair play
Both those who want Duterte convicted and who want her acquitted may like to take their chances in the 19th Congress.
In a 23-person Senate (without senator Sonny Angara, who resigned to run the education department), the Vice President needs only eight senators voting for her to be acquitted. She can rely on a core of four: senators Bato de la Rosa, Bong Go, Imee Marcos, and Robin Padilla. The compressed timetable of the trial may not give other senators enough room to be persuaded that convicting the Vice President, and thus disqualifying her from any political office, would be worth the political risk going forward. I share the view that eight votes for acquittal are very much within the realm of possibility in the Senate of the 19th Congress.
I do not understand the political arithmetic of those impeachment advocates who insist on an immediate trial. Maybe, for some, it is momentum that will carry the day; maybe, for others, the real target of the impeachment includes reelectionist senators Go and De la Rosa. (In this scenario, the live coverage of the presentation of evidence and the questioning of witnesses, if done during the campaign period, would take a toll on the prospects of these two allies.)
A trial under the 20th Congress, however, presents real advantages for both sides.
Duterte would need nine votes in a full Senate to win an acquittal, yes, but she would have the advantage of securing these votes after the midterm elections, when the political class starts looking toward the next presidential election. I do not hold the view that the President becomes a lame duck immediately after the midterms (or, you know, forthwith), but political calculations about who might be the next president would be a factor in any decision to disqualify a potential presidential candidate.
The senatorial candidates backed by the Duterte family are certainly not hiding their objective, or their subjectivity. They are running in part to “protect Sara.” Go seems much better positioned for reelection; impeachment as an election issue may not affect him. But it will likely impact on De la Rosa’s chances. He’s one of about a dozen high-profile candidates fighting for one of the last six seats; his campaign and eventual reelection may well hinge on public support for, or against, impeachment.
But impeachment advocates would also enjoy the same advantage. They would have the opportunity to use the elections as a means to mobilize public support and as a way to measure the relative strength of other potential presidential candidates. Depending on how well the two Tulfo brothers running in 2025 will do, for instance, the political class might consider either of them, or their brother already in the Senate, as a viable alternative to Duterte. Depending on how De la Rosa (or other Duterte-backed candidates aside from Go) perform, impeachment advocates might seize on a common messaging: There’s little political risk in convicting the Vice President. I share the view that mustering the 16 votes needed to convict is very much within the realm of possibility in the Senate of the 20th Congress.
The issues are joined; the field is even. It’s not perfect, but starting the trial in late July is fair to both sides, and puts accountability front and center in an election. It seems to me to be the least worst option. – Rappler.com
Veteran journalist John Nery is a Rappler columnist, editorial consultant, and program host. In the Public Square with John Nery airs on Rappler platforms every Wednesday at 8 pm.