Do chatty senators really face jail time during impeachment?

Former Oregon Sen. Bob Packwood was arrested in 1988 after barricading himself inside his office, locking one door and blocking another with a chair in an attempt to prevent a quorum so that Republicans could stall debate on campaign finance legislation. The sergeant-at-arms escorted Packwood to the Senate chamber, and he was physically carried onto the floor. (Bill Clark/CQ Roll Call file photo)

Despite a dramatic daily warning, if senators fail to stay silent during President Donald Trump’s impeachment trial, it’s unlikely that they’ll end up arrested. And no, there is not a Senate jail.

At the beginning of each trial day, Sergeant-at-Arms Michael Stenger will declare, “Hear ye! Hear ye! Hear ye! All persons are commanded to keep silent, on pain of imprisonment.”

But that warning might be overblown. Any rowdy conduct won’t send any senators straight to the clinker. Raucous behavior would first be met by a gaveling down by the presiding officer, Chief Justice John G. Roberts Jr. Roberts would then ask the senator to take a seat, and if the senator objected, the presiding officer could make a ruling that the sergeant-at-arms would carry out if necessary.

[Just where is this secret House jail located?]

Decorum guidelines are outlined in Rule 19 of the Senate rules and allow the senator to make an appeal of the ruling. On paper, the rules appear straightforward. But no Senate has ever been forced to actually imprison one of its members.

In the past, the Senate has preferred to expel the senator from office, rather than send him or her to jail, so as not to deprive a state of its full representation. Such confrontations have occurred so infrequently in the Senate’s history that ambiguity is more readily available than specifics.

No senator has ever been imprisoned by Senate officials, but in the past, the threat of arrest and jail has silenced even the most agitated senators.

In 1863, Delaware Sen. Willard Saulsbury Sr., a Democrat, called President Abraham Lincoln “a weak and imbecile man” on the Senate floor and was ordered to take his seat by the presiding officer, Vice President Hannibal Hamlin. Saulsbury resisted, and Hamlin instructed the sergeant-at-arms to arrest Saulsbury.

“Let him do it at his own expense,” Saulsbury said, drawing a pistol and threatening to shoot the sergeant-at-arms. Days later, a more sober Saulsbury, facing a resolution of expulsion, apologized and the Senate dropped the matter, according to the Senate Historical Office.

In the coming days and weeks, senators are expected to sit through hours of presentations by House managers in the Senate chamber without even a whisper between them. In more recent times, but still predating even the Clinton impeachment, senators have acted improperly and forced the sergeant-at-arms to make an arrest.

In 1988, Oregon Republican Sen. Bob Packwood barricaded himself inside his office, locking one door and blocking another with a chair. He was attempting to prevent a quorum so that Republicans could stall debate on campaign finance legislation. But the sergeant-at-arms arrested Packwood and escorted him to the Senate chamber. He was physically carried onto the floor.

But such arrests, like a similar one of Tennessee Democratic Sen. Kenneth McKellar in 1942 when he was needed for a quorum, did not occur during impeachment trials.

Historically, senators have recognized their solemn duty in past impeachment trials of federal judges and presidents. The only known arrest and jailing during a Senate impeachment trial occurred during the trial of Judge Walter Nixon, when an uncooperative witness was tried in U.S. District Court.

During the impeachment of President Andrew Johnson, the sergeant-at-arms ordered the galleries cleared as the crowd erupted in shouting and applause when Johnson was acquitted by one vote.

Reporters have also been jailed. In 1848, someone leaked the contents of the Treaty of Guadalupe Hidalgo to the New York Herald’s John Nugent. The reporter was confined to a committee room for nearly a month and filed his stories with the dateline “Custody of the Sergeant-at-Arms,” according to the Senate Historical Office. After a month of confinement, during which Nugent dined with the sergeant-at-arms every night, he was released.

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.”

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