Mitch McConnell

Can McConnell Refuse to Hold a Senate Trial

|The Volokh Conspiracy |

Over at the Niskanen Center, I have a long post on the question of whether Senate Majority Leader Mitch McConnell could simply refuse to hold a trial if the House of Representatives does manage to adopt articles of impeachment against President Donald Trump. Ultimately, this strikes me as question of constitutional norms, and it would be inappropriate in most circumstances for the Senate to refuse to hold an impeachment trial and just ignore the actions of the House.

Here's a taste:

Should a constitutionally conscientious senator ever agree to table or significantly delay an impeachment trial? The text of the Constitution does create some space for that kind of hardball. The Constitution says that the Senate "shall have the sole Power to try all Impeachments," and provides some directions on what should happen when the Senate is "sitting for that Purpose," but the Senate is empowered to have a trial, not mandated to have a trial. If the Senate wants to take action against an officer, it would need to go through the constitutionally specified process of holding a trial, but if the Senate is content to allow an officer to remain in place it is not clear that the Senate needs to follow any particular procedure. Moreover, the fact that the Senate has the "sole Power" to try impeachments emphasizes that the impeachment process is a cooperative one. There is no way to end-run a Senate that does not want to remove an individual from office.

Read the whole thing here.  Also on this topic is Bob Bauer at Lawfare.

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  1. Presumably they could do something like a Summary Judgement. If a majority agrees, they could consider a motion that assumes the articles are true, and asks if they are high crimes that warrant removal. The motion could pass by a vote of 1/3 of the Senate.

    1. In 1997 Byrd moved to dismiss which was defeated by the GOP majority.

      I assume that is how they handle it summarily if they want. Sworn in, move to dismiss, second, vote, go home to dinner.

      1. That seems right.

        I suspect Prof. Whittington is right too- they could just play hardball a la the Merrick Garland nomination and not take it up at all. Obviously, no federal court is going to order the Senate to hold a trial. But I suspect the politics of this will be different than Garland- Republican Senators facing potential primary challenges will want to be seen as voting down the impeachment. So I suspect it goes to the Senate and then there is floor debate on a motion to dismiss.

        1. The real question is whether the resistance Dems in the House can force Pelosi to hold an impeachment vote, not whether McConnell will hold a trial.

          Pelosi will not hold a vote on impeachment, because she’ll lose her speakership before Trump loses the presidency.

          And really it makes no sense to hold impeachment hearings or an impeachment trial during an election year.

          There will be a trial of Trump in November 2020, with evidence being presented all year long to the voters. Trump will not only be aquitted but completely vindicated.

          1. If you believe that you should head over to some betting sites and put down fat money. Oddshark is paying out +125 on President Trump beating the field. The odds have never been better. Some sites have him at +120 straight up.

            1. Just bet against Trump at Paddy Power. You win either way.

    2. 1/3?

      I assume you mean 2/3rds.

      1. If it takes 2/3 to convict, presumably 1/3 saying that there isn’t grounds for impeachment would be enough.

        1. On a procedural motion? Would a motion to issue subpoenas also be decided on a 1/3 vote? Unless the Senate has rules that specifically say otherwise everything other than the actual vote to convict would be decided by majority vote.

          1. As I said in my comment, a majority would have to allow the motion. If they did, they could allow it to pass with a 1/3 margin, or technically something greater than 1/3.

            1. Actually, both the House and Senate routinely hold votes without even a 1/3 vote. If nobody makes a quorum call, and you hold a voice vote, the Congressional record doesn’t record that there were only a half dozen Members present. And the Enrolled Bill doctrine says the courts will refuse to entertain any complaint about it.

              Why did you suppose CSPAN is prohibited from doing panoramic shots of the chambers, anyway? It’s to avoid documenting that it’s practically empty sometimes when the’re doing business.

              1. Yeah, but it takes a single Senator to defeat unanimous consent.

    3. “Presumably they could do something like a Summary Judgement.”

      Actually, what you are describing is a motion to dismiss, or a demurrer in older terminology.

  2. “inappropriate in most circumstances for the Senate to refuse to hold an impeachment trial and just ignore the actions of the House”

    Snort. The Senate does not have to do anything. Ever.

    A political impeachment by the opposing party deserves ignoring. But don’t worry, I think they will prefer the motion to dismiss route.

  3. Maybe McConnell just schedules for the day after the 2020 election?

  4. The House and the Senate are co-equal houses. The U.S. Congress is not Parliament, and the Senate is not just for show. The balqnce

  5. The House and the Senate are co-equal houses. The U.S. Congress is not Parliament, and the Senate is not just for show. The balance of power is such that the Senate cannot take up sua sponte impeachment proceedings, NOT that the House gets to command the Senate to hold a trial.

    1. The House can’t command the Senate to hold a trial any more than the Senate can command the House to draw up articles of impeachment

  6. In the Scalia matter McConnell wanted to save Republicans from having to vote against an obviously qualified nominee, because this would have cost them votes in the upcoming election. However it would seem that for a Republican to vote against convicting Trump would not be deemed exceptional by the voters. On the contrary, it would be the Democrats in the Senate who would be on the hot seat and would like to avoid having to cast a vote, especially if public opinion remains against impeachment. Furthermore, if the Republicans expect the impeachment process to redound to their political benefit what incentive would they have for unnecessarily shortening the process? (Except for the fact that such a process, doomed to failure as it is, would be a huge distraction and probably not be in the best interests of the country, but who would expect such considerations to prevail when potent political interests are at stake?)

    1. I think you are right. The GOP will see the trial as a way to embarrass the Dems. The evidence is laughable and the public will be disgusted with the Dems wasting so much time and energy on it.

      1. I believe most Americans support investigating, censuring, and neutering Donald Trump.

        There are enough uneducated losers and backwater bigots left in America, however — as of now, and pending the ongoing replacement of clingers — to give Trump the cushion he would need to avoid a two-thirds vote.

        This will and should be settled at the polls next year.

        1. I believe most Americans support investigating, censuring, and neutering Donald Trump.

          Google “impeachment polls”

          1. Google “investigate” and “censure”
            The polls were strongly against impeaching Nixon … until flipped by the facts. And we just got another smoking gun.

            1. But flipping the polls based on the facts required actually having facts. That’s the problem here: All the anti-Trump forces have are ink blots that look like proof of guilt if somebody who already hates Trump’s guts looks at them. But look like a butterfly if anybody else does.

              1. Pointers on evidentiary standards from birthers are always great.

                1. Yes, your evidence is about as good as the birthers, great example Rev!

            2. And we just got another smoking gun.

              The problem is, as Brett Bellmore puts it, that the facts disclosed thus far only appear to be a smoking gun to the hard core Trump haters. Perhaps these correspond to the 37% of the population who are in favor of impeachment. To them it is a given that asking Ukraine officials to investigate corruption in their own country is by definition an improper attempt to influence U.S. elections if Trump is making the request and Biden is a potential wrongdoer, but is by definition legitimate if the potential wrongdoer is Trump, as when Senators Menendez, Durbin and Leahy made the request. At the time of that request the investigation was being conducted by Robert Mueller. Now the investigation is being conducted by U.S. Attorney John Durham. It seems likely that much of the public will fail to see a significant difference between these situations, absent some dramatic new disclosures.

        2. “I believe most Americans support investigating, censuring, and neutering Donald Trump.”

          Well, that’s the feminist view. Is “neutering” further than removal and disqualification, or less far?

        3. Neutering? I didn’t think you were into mutilation there Rev.

          1. Get your minds out of the gutter. Neuter also has a colloquial meaning — to disempower.

            1. “Neuter also has a colloquial meaning…”

              Which do you think Kirkland was using?

            2. So does “hysterical”. Good luck with that, nowadays.

        4. I got a reply from the Rev. Woo hoo.

        5. Could not agree with you more, Reverend. This will be settled at the ballot box next year. The people will need to sort this out, because the politicians cannot.

        6. This will and should be settled at the polls next year.

          The fear of this is what is driving the Trump impeachment. As Rep. Al Green put it, he is “concerned if we don’t impeach this president, he will get re-elected.”

      2. The evidence is laughable, and the majority of the public will only hear of it by way of media outlets hostile to Trump, and so won’t be laughing regardless, because they won’t hear why it is laughable, only that for some reason they personally find a bit obscure it is damning.

        1. and the majority of the public will only hear of it by way of media outlets hostile to Trump

          I assume that people tend to recognize bias and to discount it.

      3. The evidence is laughable

        You’ve seen it all?

      4. The Republicans spent much of the Obama years “investigating” Hillary in a never-ending attempt to find dirt on her. They began at Benghazi and ended up with a “nothingburger” having to do with bureaucratic rules on handling classified emails. After their years-long investigation resulted in no charges and clinched the election for them, they shut it all down.

        I wouldn’t be so confident that impeachment proceedings in the House will turn Americans against the Democrats.

        1. Fox News was the Benghazi channel for years as they dragged it on and on, stetching it to her presidential campaign.

          And Bill was impeached for what they later pooh poohed as a process crime.

          Neither side learned.

          All everybody learned was the wisdom of the founding fathers in forbidding the use of investigation to hurt political enemies, and requiring supermajorities to remove a president i.e. get buy in from the president’s supporters that he is a really bad guy.

          Still, there were cracks large enough to drive a truck through, like violating client privilege, if those in power really, really, really want to hurt their opponent. These protections fail at their most needed, and arguably only truly needed point.

          1. “All everybody learned was the wisdom of the founding fathers in forbidding the use of investigation to hurt political enemies,”

            You might wish to take another crack at the “everybody” part after reading the memorandum of the Zelenskyy call and the associated complaint.

        2. “bureaucratic rules on handling classified emails”
          Ok, whatever else you may think of the investigation, mishandling Top Secret information is not just a “bureaucratic rule” violation.

          Classified information, especially compartmented Top Secret, is stuff that if revealed can have serious consequences. Snowden’s leaking of multi-billion dollars worth of spy programs, which all got rolled up after the leaks, is one recent example. Aldrich Ames, in a more extreme example, revealed the identities of hundreds of people – dozens of whom were killed or ‘disappeared’ by the Soviets or other governments.

          The laws about handling classified information exist because there can be serious, even lethal, consequences. Dismissing these as mere “bureaucratic rules” is absurd.
          There are many grounds to criticize the Republican handling of Benghazi. But that is not one of them.

          1. Wasn’t the charge that she received email about Benghazi on her insecure server, that the FBI determined three years later should have been classified and marked Top Secret?
            That may well amount to mishandling by the originator of that email, but even squinting through the strongest anti-Clinton lens I can find I don’t see how it makes her culpable.

            1. There were a bunch of things she did wrong.

              She directed staff to remove classified markings, in order to get the system to transfer data.

              There were emails that contained classified data that she had requested to be sent to her.

              There were classified emails that she sent to others.

              Additionally, she had the responsibility to report any mishandling of classified information to the appropriate security office (INR, for her) as soon as she knew about it, even if she didn’t do it. She failed to do so.

              And that’s before considering the illegal server’s very existence, or its destruction.

  7. My kneejerk assumption is that if the House impeaches, the Senate would have to constitute itself as a court to hear the impeachment – and if the Pres is impeached, summon the Chief Justice to preside.

    But I can always be proven wrong from Congressional precedent, state precedent, or precedent from the House of Commons and House of Lords in the Old Country. (“From England, where all our ancestors came from”)

    1. I would agree that the senate would need to at least hold a formal trial if for no other reason than to show that they are adhering to formalities.
      Then they can subsequently have motion to dismiss based on lack of any evidence of high crimes or misdomenors.

      1. By then, it would be suicidal, just as it became with Nixon.

    2. Can I prove you wrong with just the words ?

      The House is granted “the sole Power of Impeachment.” Which does not imply any Duty to Impeach anyone. It just says it has the Power and that nobody else has it. The Constitution is thick with other Powers granted to various folk which they obviously don’t have to exercise if they don’t feel like it.

      “The Senate shall have the sole Power to try all Impeachments”

      This is in identical form to the House’s power to Impeach. A Power, not a Duty. And the wording to make it a Duty is obvious. Just delete “have the sole Power to” from the actual Constitutional text. Since the words are there though, we have to give them effect.

      Consequently if you’re a reader of the text rather than a penumbra-snuffler it’s pretty clear that the Senate doesn’t have to do squat about Impeachments.

      If Senate Rules say it does have to take them up, then under its rules it has to take them up. Unless it changes the rules which it has now decided it can do on a simple majority. (Thanks Harry.)

      As to the politics, who knows ? I suspect it would be politically wise for the Senate to take up an Impeachment of the President and try it.

      Though if I were Cocaine Mitch I’d be inclined to insist that the Senate Dems made up the time. So that’d have to be something like a promise of 50 voice vote confirmations from Chuck Schumer. And since it’s Chuck, the voice vote confirmations would have to come first, and the Trial second.

      1. Well, Lee,

        If the case is as weak as you and others think then wouldn’t it make sense for the Senate to conduct an actual trial, rather than just ignoring the matter, or dismissing the charges out of hand?

        A terribly weak case would be a big embarrassment for the Democrats, after all, so why not play it up and let the public see how foolish the whole thing is.

        If you don’t have a trial, or just dismiss the matter, it looks a lot like a coverup.

        1. Well, bernard

          What part of

          I suspect it would be politically wise for the Senate to take up an Impeachment of the President and try it

          did you find particularly difficult to understand ?

      2. I’m more interested in the impeachment process as defined in precedents of actual impeachments.

        With all the variegated experience of impeachment here and in the Mother Country, if there’s power to throw out the charges without a hearing, then that power would have been exercised by now.

        There seem to have been cases in English history where the Commons brought a charge and then lost interest, or got dissolved, so the case never got finished.

        In the Andrew Johnson impeachment, the Senate held a trial but only voted on three of 11 charges – once they saw that there was a one-vote margin to acquit they didn’t go through all the charges.

        In several cases (involving federal judges) they appointed a committee of Senators, not the full Senate, to hear the evidence, but the final vote was by the full Senate.

        In some instances, the accused resigned before trial and (I think with the House’s consent) the proceedings were then dismissed.

        As for the House or impeaching body pressing for a trial of some kind and the Senate (or upper chamber) specifically saying no to such a request, I’d like to see that precedent.

        1. In the Blount case, where Blount was a Senator who had been expelled, the Senate voted to dismiss the charge without voting on guilt or innocence, on the basis that Blount wasn’t impeachable, but a private citizen (and perhaps not accountable in an impeachment trial for Senatorial actions).

          1. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

            When Blount was expelled, he was removed from office, so impeachment became moot. Also, according to Wikipedia, the Senate has concluded that members of Congress (Representatives and Senators) are not “civil officers” for purposes of impeachment. Each house has the power to discipline and expel it’s own members, so impeachment is neither necessary nor available.

            1. To put it another way, “the Senate voted to dismiss the charge without voting on guilt or innocence, on the basis that Blount wasn’t impeachable, but a private citizen (and perhaps not accountable in an impeachment trial for Senatorial actions).”

      3. Lee Moore

        But the constitutional norms! Someone must think of the norms.

        1. I think the norms probably now require a month and a half of sexual assault allegations against the House Managers, FBI investigations, and Committee hearings thereon, before any trial can get started.

          1. That does seem to be the precedent from the Clinton impeachment. Then one of the House managers resigns to be replaced with a very blackmail-able pedophile.

      4. “If Senate Rules say it does have to take them up, then under its rules it has to take them up. Unless it changes the rules which it has now decided it can do on a simple majority. (Thanks Harry.)”

        Actually, the US Supreme court decided that the Senate could change it’s own rules by simple majority even in the face of a Senate rule claiming to require a super majority in a case that was heard before the Civil War.

        1. Matthew, you have made this claim several times now. I don’t believe such a clear precedent exists.
          In 1995 when the House intended to adopt a three-fifths supermajority vote requirement to increase income taxes, some constitutional scholars wrote an Open Letter to Congressman Gingrich arguing that such a rule would be unconstitutional, and referencing INS v. Chadha, 462 US 919 (1983) and US v. Ballin, 144 US 1 (1892).

        2. Those arguments concerning rules for legislating are not too relevant to the question of rules for rulemaking, but that article was countered by another The Constitutionality of Legislative Supermajority Requirements: A Defense that may be the source of your rumor. That paper argues that supermajorities for legislative votes are constitutional, but not for rulemaking, saying

          Unfortunately, the [Constitutional] text does not clearly resolve the issue.The Rules of Proceedings Clause merely provides that each house has the authority to pass the rules of its proceedings. It does not specify whether rules of proceedings may be insulated from repeal by a majority. Similarly, the Presentment Clause is silent on whether Congress may insulate a law from repeal by a future Congress.
          Although the text does not answer the question, the history and structure of the Constitution do. When the Framers drafted the Constitution, they did so against a traditional understanding of the limits of legislative power. The Framers were clearly aware of the traditional understanding, and absent evidence to the contrary, it must be assumed that they followed it. Blackstone states the traditional view in Book I of his Commentaries:
          “Acts of parliament derogatory from the power of subsequent parliaments bind not …. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if it’s [sic] ordinances could bind the present parliament.” Because each legislature is equal, one legislature cannot prevent a successor from taking action.

        3. This is followed by a not greatly persuasive footnote arguing that if a Congress can’t have rules that bind a future Congress (a position the House at least recognizes, since at the beginning of each Congress it goes through the motions of adopting the rules of the preceeding House) then it can’t have rules that bind the same Congress either.
          But whatever the virtues of this argument, it does not cite the pre-Civil War Supreme Court precedent that you claim exists.

      5. Let’s follow along the reasoning here. Because maybe the constitutional lawyers can help out.

        The House impeaches POTUS Trump. The Senate declines to try the POTUS. The election happens, the POTUS is re-elected. The Senate changes hands. Can the new Senate (sworn in 2021) try the re-elected POTUS, or does the ability to conduct the trial get extinguished with the new Senate being sworn in?

  8. Interesting. I just sorta assumed that of course there would be a trial. But I have no doubt that Moscow Mitch will do whatever he sees to be in Republican interests. I agree that there is not anything in the texts that specifically says that the trial *must* be held. There certainly is a ton of legislation that passes the House and goes to die in the Senate.

    There is the argument that impeachment is different. And there is the argument that the Senate can do literally anything and everything that is not specifically forbidden. I think both arguments can be made in good faith.

    We live in interesting times.

    1. I doubt that; McConnell has frequently done things hostile to “Republican” interests; For the first two years of Trump’s term, they had a House majority, remember? Mitch made the Senate into a killing ground for all the conservative legislation they were sending him, refused to hold votes on most of it. Which is arguably why they lost the House, and would have lost the Senate if almost every contested seat up for reelection there hadn’t been a Democratic seat.

      He seemed to prioritize protecting a few RINOs from having to cast difficult roll call votes over Republican interests.

      1. Mitch made the Senate into a killing ground for all the conservative legislation they were sending him, refused to hold votes on most of it.

        Yes. And it was smart politics on his part.

        If you imagine the country wants to be governed by the Freedom Caucus imbeciles you’re nuts. McConnell knows better.

      2. “…over Republican interests.”

        Some naive sorts expect our government to work in the interests of the United States, but Brett knows better. And on some level, I appreciate the fact Brett never hides his distaste for the US and our system of government. It’s a low, low level, but a level nonetheless.

      3. I don’t think MConnell is hostile to Republican interests, he’s just a traditional fairly swampy Republican. Trump is a wrecking ball, and McConnell’s hostile to that.

        The most obvious sign of McConnell’s deliberate obstruction of Trump is that during 2017-2019 when the House had a GOP majority, Ryan and McConnell could have given Trump a recess to staff up his administration, doing an end run around Schumer’s filibustering. McConnell could have agreed with Trump a list of 80 or 90 key appointments in the summer of 2017, and Trump would not still be operating with Obama holdovers or the acting folk from the permanent swamp.

        The fact that McConnell didn’t do that shows that he was quite happy with the D filibuster of Executive Branch posts, if not with judges. Whereas when the Ds get in and have a Senate majority, if the Rs try doing a Schumer, there’ll be a recess before you can say knife.

  9. The workers comp insurance company covering CNN and other liberal news outlets are going to be buy the next few months with all the thrown out backs resulting from having to move the goal posts so many times today. Last night we went from Trump held up military aid to get dirt on Biden to Trump merely requested that Biden’s quid pro quo get investigated. And now all they can come up with is “this isn’t a transcript” and “hey….look over here”. Pretty lame.

    I imagine the Senate will give this as much time as it deserves, about an hour, if it ever gets out of the House. Pelosi is already backpedaling. My best guess is the media will kill this entire thing by Friday afternoon.

    1. Do you understand what “moving the goalposts” looks like?

      Trump is the one moving the goalposts here. In the space of a few days, he’s shifted explanations for why he withheld congressionally-mandated aid to Ukraine, shifted from describing the call as perfectly appropriate to merely excluding any mention of an explicit quid pro quo. Now he’s trying to exploit some kind of arbitrage between the “transcript” his own office prepared and what the independent reporting on the complaint turned up (keep in mind that the investigative reporting has historically been vindicated more often than the WH’s original spin).

      Democrats can point to a clear timeline of objective facts and statements against interest. Trump withheld aid he didn’t have the authority to withhold. He directed his aids to lie about the reasons for the delay. His “attorney” Giuliani bragged on national television about “meddling in an investigation” in Ukraine. Trump suggested that Zelensky “do him a favor” by investigating the Bidens shortly after withholding military aid that Ukraine needs to defend against an existential threat. Zelensky complained to congressional representatives that he was getting pressured to dig up dirt.

      You can pretend it’s a “nothingburger,” but doing so just betrays your partisan blindness to facts and reality. Everyone knows what Trump did, and so do you.

  10. I have two favorite forms of constitutional hardball, waiting in my head, for when I write my novel:
    1) A Senate in a lame duck session after the wrong side won a Presidential election confirms a nominee to the Supreme Court the the President has withdrawn, on the theory that this guy is the best we are going to get, and his confirmation will block the new President from choosing someone worse. There is nothing in the constitution about withdrawing a nomination.
    2) A Supreme Court Chief justice in a Presidential impeachment trial walks, after his rulings are repeatedly overruled by the Senate, relying on the fact the the trial must be presided over by the Chief Justice.

    Is there any flaw in these ideas for my novel?

    1. Quite good. As fiction.

    2. If the Chief Justice is unavailable the Senate can presumably appoint another presiding officer as pro temp. I believe during Clinton’s trial there were a few mornings when the Chief Justice was unavailable and a Senator presided in his absence. Granted the presiding officer didn’t hear any motions or rule on objections, but still it happened.

      1. I don’t think that conviction would have been legal. The constitution clearly says “the Chief Justice shall preside” I don’t see any ifs ands or buts.

        “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

        1. You want a really hairy scenario; All the Democrats plus a handful of renegade Republicans show up late at night, along with a very unhappy Chief Justice, (Where ARE his kids, anyway? He’d like to see them again.) and your 2/3 vote is 2/3 of only 51 Senators, 34 of them. (The rest of the Senators present vote to acquit in protest of the irregularity of it.)

          1. Call it the North Carolina Plan.

    3. 2a) A very old Chief Justice is of doubtful competency but refuses to resign. His rulings are incoherent and he keeps falling asleep during the trial. The pro-President faction challenges the proceedings on the ground that the Chief Justice is not presiding.

      1. Ginsburg is not the cheif justice

        1. The giraffe has hiccups.

    4. At least for #1 there is still the issue of the person receiving the commission. It is actually a three step process: nomination-confirmation-commissioning. If the President really wanted to withdraw it they just wouldn’t give the person the commission. No constitutional issue

      For #2 the Chief Justice is a position so the Senate overruling things doesn’t change that. If you mean he walks as a way to prevent the trial I’d guess the Senate could subpoena him and hold him in contempt, also the House which obviously wants impeachment could impeach him and the Senate could basically say sit or we’ll find you guilty and remove you.

      1. Yes, but after they removed him, the President would presumably prevent the trial by declining to nominate a successor, and I don’t think there is anything that requires him to do so or appoints a Chief Justice by some other mechanism.

  11. They “could” not have a trial. But it likely would be a poor idea. With control over the trial process, it would be easier to just have the facts out and not convict.

    I especially look forward to the Democrats supporting their letter from May 2018 to Ukraine where they “suggested” Ukraine look into reopening investigations into their political opponent, President Trump.

  12. Are you saying that a President can prevent a Nominated and Confirmed person from assuming office by refusing to commission? You appear to have discovered a new form of hardball. It might be fun to invent scenarios where this power comes into play. Where is this power mentioned in the constitution?

    1. I’m pretty sure Marbury didn’t become a judge.

      You know what else can stop a nominated and confirmed person from becoming a judge? The person.

  13. I’m sure the DNC leadership would be able to find a sympathetic judge somewhere willing to issue a national injunction requiring the Senate to hold an impeachment hearing.

    The same would also likely issue an injunction prohibiting the Senate from refusing to convict.

  14. Do articles of impeachment expire if not acted upon?

    Clinton was impeached by the House in the 105th Congress and tried by the Senate in the 106th, so clearly articles of impeachment CAN carry over from one Congress to the next (and presumably from one session to the next).

    But do they automatically carry over, or does the Senate need to invoke a rule to prevent lapse of the articles at the end of a session?

  15. I hope McConnell plays as much hardball as possible.

    Mostly because it inclines the prospect of an enlarged Supreme Court in a couple of years.

    1. Hopefully the court packing the Democrats attempt leads to the civil war (and resulting Pinochet type) we so desperately need.

      1. You, and any other fringe-dwelling clingers, are welcome to go “the full LaVoy” any time you wish.

        Or just keep whimpering, and complying with the preferences of your betters.

  16. Conviction in the Senate requires a super-majority. But can a simple majority force a full Senate trial, whether McConnell wants it or not? Based on today’s news, there may be a few Republican Senators who will be loathe to vote against giving a bill of impeachment a Senate trial.

    If it is apparent that Democrats in the Senate, plus a few Republicans defying their majority, constitute a bloc numerous enough to force a trial, are there procedural shenanigans available to McConnell to frustrate that? What would be the consequences for the nation if that happened?

    1. A simple majority could remove the Majority Leader and appoint one who’ll calendar the trial. But short of that, I doubt there’s a way to force a trial. (Is there a Senate equivalent to a discharge petition?)

  17. Is there any law that says a judge must conduct a trial if there is an indictment? As I understand it, the judge can toss it.

    1. Judges can generally only dismiss a case under particular circumstances. They don’t have the freedom to just throw out a case because they feel like it.

  18. Impeachment and removal proceedings seem roughly analogous to criminal proceedings: The House’s decision whether to impeach is like a grand jury’s decision whether to indict, and the Senate’s decision whether to remove from office is like a petit jury’s decision whether to convict. Assuming the framers of the Constitution created the process with that analogy in mind, did they believe that the equivalent of the petit jury — the trier of fact — could decide that there would not be a trial? Come on all you originalists — give us the answer!

    1. This originalist sympathiser sees no mention of “roughly analagous to criminal proceedings”, “grand jury”, or “petit jury” in the text.

      I see :

      “The Senate shall have the sole Power to try all Impeachments”

      I do not see :

      “The Senate shall try all Impeachments”

      though that’s how CNN may be quoting it.

      So to my 2019 eye, I see a Power but no mention of a Duty. Of course it’s possible that a couple of hundred years ago, these words meant something different and “Power” encompassed a Duty also.

      Which would come as a horrible shock to the House since the Contitution says :

      “The House of Representatives ………shall have the sole Power of Impeachment.”

      Which is identical in form to the Senate’s Power to try Impeachments. So if in the late 18th Century a Power encompassed a Duty, the House has no choice but to get on and Impeach not only Trump, but anyone else against whom there is a smidgeon of suspicion. There’ll be no time for ephemera like laying and collecting taxes with that Impeachment backlog on their plate.

      But fortunately I’m guessing that those words meant pretty much the same 250 years ago as they do now. But Mr Lathrop wil be along shortly to explain why this is a wild and foolish assumption.

      1. Lee, I agree that the sole power clause means the Senate can do what it wants, including not hold a trial. But there is a question about how you determine, for this purpose, what the Senate wants.

        If it were apparent that there were, among Democrats and a few Republicans, a simple majority in favor of a trial, could McConnell’s usual power to say which votes were to be held, and which not, be applied against this constitutionally vital prerogative of his majority? How about if it were not apparent, one way or the other? Must McConnell hold a vote to find out?

        If McConnell did decide against a trial, over the wishes of an apparent Senate majority, what consequences should the nation expect for its ability to govern itself?

        By the way, I also think that the sole power clauses in both Houses decree extraordinary powers during impeachments. I interpret “sole power” to mean no other division of government gets a say, including the courts. That would mean, among other things, that the President has zero power to go to court against a subpoena from the House. His only constitutional option is to comply promptly with all demands from the House, including demands for otherwise confidential, classified, or privileged materials. I would be interested to hear anyone who thinks otherwise explain what “sole power” could mean under a more limited interpretation.

        Given that, House Democrats would be foolish to invite the Supreme Court, stacked as it is, to intervene on their behalf. They should simply punish contempt on their own initiative. I suggest ruinous daily fines, to encourage prompt compliance. If Trump tries to take the House to court, the House should laugh, point to the sole power clause, double the fines, and slap liens on homes to make the point. Later on, the whole issue could be worked out in a years-long lawsuit over enforcement of the liens.

        1. Now, wait a minute: By that reasoning, the House could violate the 5th amendment, which having been adopted subsequent to the impeachment clause, would normally be held to override it to the extent they conflict.

          I think the best reading of this is that the House having the sole power to impeach is not the same thing as the House having the power to do anything they damn well please while going about impeaching. It just means the decision to impeach is entirely up to them. Aside from that, their actions are as constrained as normally would be the case.

          So, if they subpoena’d the President to testify under oath, he’d be free to refuse, and they’d be free to add that to the bill of charges.

          1. 5th Amendment?

            Impeachment is not a criminal trial so 5A doesn’t apply.

            1. No, apedad: You can’t compel incriminating testimony, even if the context of the compulsion isn’t criminal. it’s the incriminating part that stops you, not the context. Or at least so the courts have held.

              1. In regular courts the way to get around that is offering immunity from criminal prosecution. Does the House have that power?

                1. Duck,
                  We know the Senate has that power (see convicted felon and serial liar Oliver North), so I have to assume that the House has something similar.

                  1. “convicted felon ”

                    Redundant [all felons are convicted] and inaccurate. His illegally obtained conviction was vacated because his immunity was violated.

            2. “Impeachment is not a criminal trial so 5A doesn’t apply.”

              As Brett Bellmore already answered, the 5A can apply in other contexts if your are being called upon to give incriminating testimony. The 5A has been asserted many times in civil litigation (although if you are a party to the case, you better think hard about it, because it can have severe consequences.)

          2. Brett, the sovereign People have the power to do anything they damn well please. That is inherent in being sovereign. One of the things it has pleased the sovereign People to do, is to decree limits on their governments, by a system of divisions between government branches, separation of powers, and checks and balances.

            It has also pleased the sovereign People, in narrowly defined circumstances, to suspend those limits, and instead decree the exercise of sovereign-like unlimited powers by specific divisions of government, when those divisions are engaged in specific exercises of sovereign will which demand that kind of power. You can recognize those kinds of situations because they are one ones where “sole power” is decreed.

            Make it a point to notice. In each such instance, the limitation from competing branches is expressly discarded. As are the other two kinds of government limitations mentioned above—separation of powers and checks and balances. None of those is logically compatible with “sole power.” What is compatible with “sole power,” is the exercise of inherently unlimited sovereign power. And, lo and behold, when you look at the purposes for which the constitution decrees sole powers, they all turn out to be in furtherance of inherently sovereign functions, such as exercise of the constitutive power, or the ultimate power over criminal punishment.

            I suggest you can interpret that to mean that among the founders there were special areas of sovereign concern, where they undertook to delegate their full powers for an otherwise limited government to exercise within defined boundaries. The impeachment powers, and the power to pardon criminals, are among those. Likewise the power in congress to declare war. I am certain you would not argue that anyone, the courts or anyone else, could check or balance those other sole powers. Why is the power to impeach any different?

            1. Umm, the Bill of Rights are mostly formulated as “Congress shall make no law . . .” And they were passed AFTER the impeachment provisions were enacted. And by the same sovereign people who enacted the Constitution. Who, apparently, thought that Congress’s powers need to be checked and limited.

              So the notion that Congress (or the House, which is part of Congress) can simply ignored the Bill of Rights, is bizarre.

              1. So the notion that Congress (or the House, which is part of Congress) can simply ignored the Bill of Rights, is bizarre.

                That is not the notion. The notion is that the House must be constrained by the Bill of Rights in almost every instance. But in one explicitly decreed instance (impeachment), when the House acts to adjust the constitutive power—which is the bedrock, defining power that proves sovereignty—those limits do not apply.

                Consider, for instance, that the limits on Congress set forth in the Bill of Rights have no power to constrain the sovereign People. The People can limit their government, because the People are sovereign. The government cannot limit the People, because the government is not sovereign. The government is the People’s creation. The People, when acting with their collective sovereignty, and not individually as subjects, remain free at all times to ignore the government, to change it at pleasure, by any means the People find convenient, or to abolish the government completely, and replace it with something else. No power of government can legitimately regulate any of that.

                An election which puts a president in office is an exercise of the People’s sovereign power. It is appropriate—it would be bizarre if it were otherwise—that the power to undo that sovereign result were anything less than a countervailing exercise of sovereignty. No power of mere government could legitimately overturn a decision by the government’s creator and superior, the sovereign. Hence the sovereign act of impeachment requires use of the sovereign’s explicit decree that in the act of overturning an election, the government acts not with ordinary government powers, but with the full, unconstrained weight of the sovereign’s power.

        2. I interpret “sole power” to mean no other division of government gets a say, including the courts. That would mean, among other things, that the President has zero power to go to court against a subpoena from the House.

          It would also mean, among other things, that the House has zero power to go to court to enforce such a subpoena.

          1. Right, jubulent. That is what I said, actually, although not in so many words. My point, sharpened a bit, is that the power to inflict necessary and proper punishments to accomplish an impeachment investigation is inherent in the sole power to impeach. So the House itself can enforce its subpoenas. For instance, by going to a bank and telling the banker to freeze the account of someone who has been held in contempt, on pain of the banker himself being held in contempt.

            1. At which point the executive goes to the same bank and tells the banker that if he freezes such an account then he will be prosecuted by the executive.

              But if the banker refuses to freeze the account and is indeed held in contempt of Congress then the executive will not prosecute for such contempt.

              Which side would the banker take, particularly if the court refuses to pick sides?

              When you write out the Court you create a battle between the Executive and the Legislature. The worst Congress can do is hold someone in contempt and order the Sergeant at Arms to arrest the person. The Executive can arrest you, put you on trial, seize assets, and generally use all the power of the state (i.e. men with guns) to punish you.

              1. jubulent, your comment above is a nice example to show how consideration of issues related to sovereignty can clarify discussions about how politics works. Almost all the comments on this thread are a bit too simple, because they ignore completely one enormous super-impending issue common to every discussion of impeachment. That is that an impeachment will always risk arousing a would-be despot to more energetic despotism. That cannot be got rid of. It is better to have it front and center in the conversation.

                For myself, I prefer to rely on the inherent power of the House, which actually has some. The inherent power of the Court is all but non-existent. Worse, to enforce a court judgment against the executive paradoxically requires the executive’s participation.

                The favor that consideration of issues related to sovereignty does for discussions such as this one, is that it clarifies somewhat just how fragile are the structures which support the nation’s political edifice. For instance, nobody should be talking about impeachment without staying mindful just how close the question leads to a trial of pure force.

        3. “By the way, I also think that the sole power clauses in both Houses decree extraordinary powers during impeachments. I interpret “sole power” to mean no other division of government gets a say, including the courts.”

          To expand on Brett Bellmore’s question, how far do these powers go, and are they at all constrained by the BIll of Right? Can the House vote to torture someone to get his testimony? Can they do a warrantless search of someone’s office to get documents or records they deem relevant?

          1. Bored, I interpret the sole power clauses to be delegations of full sovereign power by the People to its otherwise limited government, to be exercised within only those constraints specified explicitly by the language used in each such delegation. The answers to your questions, then, would be found by a two-fold determination:

            1. Is the power being used for the prescribed narrowly defined purpose.

            2. Is the extent of its use consistently within the legitimate sovereign powers exercised by the People themselves.

            On the basis of No. 2, I think nothing within the text of the Constitution can be a constraint, because the Constitution does not constrain the People. They are free to alter it, ignore it, or make another one. That is the nature of sovereign power.

            But perhaps you are the among the many who think the Bill of Rights does nothing except take cognizance of rights already held by people, entirely without regard to government. For you anyway, that would imply that ignoring those rights would not be an exercise of legitimate sovereign power. That would leave you with the always-tricky question of what to do to vindicate your rights. When you contend against a sovereign, the only test is pure force.

            1. See my above reply. The Bill of Rights — which was also enacted by the People — constrain Congress, and exercise of powers granted to Congress. Congress has the power to regulate interstate commerce, but if a law like that runs afoul of the Bill of Rights, it is unconstitutional.

              Why should the impeachment power be any different?

          2. Is there a serious argument that the Bill of Rights would not apply?
            My take: Yes it applies, but it is the Senate assembled as a court of impeachment that would apply it. And if it did so correctly, it would find that a defendant in its proceeding can claim 5th Amendment protection, but since the proceeding is not a criminal trial his refusal can be interpreted against him.

            Maybe the question that was intended was, if constitutional questions come up during the trial and the Senate rules on them, can those rulings be appealed to any other body? This I think is not settled.

          3. The more interesting question is whether non-Constitutional privileges apply. Say the attorney-client privilege. Can the House compel an attorney to reveal privileged communications from his client as part of an impeachment investigation?

            1. I was the one who asked the original question that led to this long, impressive, and thought-provoking chain of responses. Thanks to all of you, particularly Mr. Moore and Mr. Lathrop. All of this is speculative and hypothetical at the moment, but maybe not for long. I don’t see either side backing down any time soon, and questions about the scope of the House’s subpoena power seem likely to arise. The one thing I DON’T see happening is McConnell refusing to hold a trial if the House impeaches and a majority of the Senate believes a trial should be held. Whether or not he has the power to do it, I think it would be political suicide, and McConnell’s too smart to do it. It’s more possible that a majority of Senators would conclude that a trial shouldn’t be held, but that seems unlikely as well. We live in interesting times.

  19. It just means the decision to impeach is entirely up to them. Aside from that, their actions are as constrained as normally would be the case.

  20. In short, the Commons can call for an officer’s removal, and the Lords can ignore them.

  21. One of Socrates’ sources of fake was his refusal to call a vote at a trial. His vote prevented a conviction. The trial (of generals charged with rescuing the wounded rather than pursuing the enemy in a crucial moment, thereby letting them escape) was later considered to be politically motivated and unfair to be treated criminally.

    I think this precedent, as well as the text of the constitution and the sole power of the senate both to try impeachments and set its rules, would prevent courts from intervening if the senate did this.

    But I suspect it would have a political cost. Democrats would likely try to draw a negative inference from the senate’s failure to act, saying they did this because they knew Trump was guilty and acted to silence things because they didn’t want the truth to come out.

    1. Sources of fame

    2. Yes, and it would be a pretty good inference.

  22. Remember a few weeks ago when the Democrats wanted to impeach Justice Kavanaugh over sex abuse allegations, before they turned out to be as baseless (if not more so) as the original ones during his confirmation hearing?

    I wouldn’t be surprised if this try at impeachment goes the same way.

  23. Some of the comments here raise an interesting issue. In both civil and criminal litigation, there is a recognized distinction between questions of law, which are for the judge, and questions of fact, which are for the jury.
    You can challenge a complaint on the grounds that, even assuming everything is true, the law does not recognize the claim. (I think you can do that in a criminal case too, although I have never heard of it.) Relatedly, you can challenge a statute as unconstitutional, also a question of law. All that the judge decides, and a jury may never hear your claim if the judge finds it legally defective. (That has happened occasionally — someone is charged with violating a federal statute which the Court dismisses because the statute is held unconstitutional.)
    How does that play out in trying a federal officer by the Senate after impeachment? Suppose the officer says, even if the impeachment is true on the facts, that does not rise to an impeachable offense (“high crimes and misdemeanors”).
    Or, suppose the statute the officer is accused of violating is asserted to be unconstitutional. The latter is not hypothetical – Andrew Johnson was impeached for violating a federal law that barred the president from firing cabinet members. Such a law is Constitutionally suspect, and in fact the Supreme Court so held several decades later.
    Or, to use a more contemporaneous example, some claimed that Trump’s firing Comey constituted obstruction of justice. Others argued said that such a charge is unconstitutional, because the president has absolute authority under the Constitution to fire anyone in the Executive branch.
    So, in a Senate trial after impeachment, who decides these questions of law and how? The presiding Chief Justice? The Senate as a whole? The Majority leader?
    How are these arguments raised? A motion to dismiss? Or are such legal arguments part of the “trial” the Senate is supposed to conduct.

    1. The Constitution says the Senate tries the charges, and the Senators vote on conviction, so they are the trier of fact. The Chief Justice presides, but since it is a session of the Senate and they make their own rules his powers would be determined by those rules.
      What rules, you say? They vary. Impeachments of judges have been delegated to committees who reported their recommendations to the Senate, a process that was upheld by the Supreme Court (Nixon v. US, 506 US 224 (1983)) as a valid exercise of the Senate’s latitude in specifying trial procedures.

    2. There are no questions of “law” as such, one can be impeached for anything the House decides to do so.

      The Senate has rules on impeachment, they are reprinted at the Senate website.

      I am looking at the rules in place in 1997 and Article VII says the presiding officer {CJ for a President} makes all evidence rulings but subject to the right of any single senator to ask for a Senate vote. Or the CJ could just refer it to the Senate for a vote without making a ruling. {My hazy memory from 1997 says Rehinquist did this several times.]

      The Senate decides how on any issue how it wants to proceed.

    3. Chief Justice Rehnquist addressed this issue when presiding over the Clinton trial. He said that unlike ordinary court cases, the Senate acts as a court of impeachment, and is the decider both of fact and of law.

  24. Even more


    from the Volokh Conspirators today.

    Movement conservatives are very bad at auditioning for more positions on strong law school faculties. Which is strange, because they plainly want the validation and opportunity very badly, so it would be natural to expect them to at least try to get better at this.

  25. Why bother debating the topic? Ask Lawfare. They run the country now, domestically and now it appears they plan to run foreign policy as well.
    It appears they like the position of President to be little more than a obliging figurehead

  26. I may have misunderstood the post.

    I agree the Senate doesn’t have to hold a trial.

    But if 99 senators want to hold a trial, and the Senate majority leader alone doesn’t, I don’t think the Senate majority leader alone can prevent it. Some majority or super-majority of senators acting together would be sufficient to override him.

  27. The Constitution does spell out that if a President is on trial, the Chief Justice presides. Presumably this is to prevent self-interested actions from the chair by the Vice President, who will get a promotion if the President is convicted.

    But how far can that be generalized? Can the VP or Chairman Pro Tem simply refuse to allow a trial to be placed on the Senate agenda? Likely yes, unless some Senator appeals the decision of the chair and is upheld by the whole Senate. Certainly the question will be non-justiciable.

  28. From the San Francisco Chronicle: “long-standing Senate rules say that, after receiving articles of impeachment from the House, the Senate ‘shall’ consider them by 1 p.m. the next day and remain in session ‘from day to day (Sundays excepted) after the trial shall commence’ until it ends. That apparently means a trial of the president is required. . . . McConnell acknowledged the point Friday. ‘If the House were to act, the Senate immediately goes into a trial,’ he told National Public Radio.”

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