Impeaching Slow, not Fast

The House may not transmit the articles of impeachment until the Senate trial's procedures are established

|The Volokh Conspiracy |

Tonight, the House approved two articles of impeachment. But Speaker Nancy Pelosi suggested the articles would not be transmitted right away:

The California Democrat said she cannot name impeachment managers to present the House case to the Senate until she knows what that process will look like. The impeachment managers, once named, are the ones who will transmit the articles to the Senate.

"It's difficult to determine who the managers will be until we see the arena in which they'll be playing in," she said.

Pelosi seemed to leave open the possibility the House may never send the articles to the Senate if the two parties there don't agree to a fair process for a trial. But she pushed back on reporters' suggesting she raised the notion of an indefinite hold.

"We're not having that discussion," Pelosi said when asked if the House may never send the articles.

Pushed on whether she can guarantee the articles will be transmitted to the Senate at some point, the speaker said, "That would've been our intention but we'll see what happens over there."

I flagged this possibility in a post earlier this week:

My colleague Seth Barrett Tillman suggested another option. The House could approve the articles of impeachment, but not transmit them to the Senate. As far as I can tell, there is no requirement that the House take any action after approving articles of impeachment. For certain, the Senate cannot take any action until the House managers show up. In this fashion, the articles of impeachment would operate as a censure that could stand indefinitely. The House, in theory, could vote for impeachment again in the next Congress.

Consider another possibility. The House could determine that the Senate, with its current leadership and majority, would not afford the House managers a fair trial. (Tribe hints at this option.) Therefore, the House plans to wait until after the election to transmit the articles of impeachment. Of course, that option would be premised on President Trump winning re-election. What better way to start Trump's second term than by holding an impeachment trial? Indeed, if the Senate flips to Democratic, the Senate trial could serve as a lengthy post-mortem of the Trump administration. However, even if Trump loses, I agree with co-blogger Keith Whittington that a former President could be impeached.

Does the House have an obligation to transmit the Articles? No, for the same reason that the Senate had no obligation to give Merrick Garland a hearing. Both chambers can set the rules of their proceedings. There is no constitutional duty to take any action.

Update: I flagged on Twitter the possibility that the Senate could change its rules and allow an impeachment trial absent managers or articles. I find this option very unlikely.

Update 2: The press has caught onto the Merrick Garland analogies:

You heard it here first.

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  1. “Does the House have an obligation to transmit the Articles? No, for the same reason that the Senate had no obligation to give Merrick Garland a hearing. Both chambers can set the rules of their proceedings. There is no constitutional duty to take any action.”

    The House doesn’t have to exhibit its charges to the Senate – but it doesn’t (or delays for months), then what are the results? President Trump will be denied the right to a speedy trial. And the Senate could say so, decreeing that if the articles aren’t exhibited by a given deadline, the case will be dismissed.

    1. There’s no speedy trial right, but there’s also nothing stopping McConnell from simply setting a trial date and, if the House managers do not show up that date, holding a vote and acqutting the President.

      The House can surely set its own rules; it cannot, however, bind the Senate.

      1. “There’s no speedy trial right”

        As I mentioned below, assuming the 6th Amendment doesn’t apply, there’s the Ninth Amendment, and we know that the right not to have justice delayed was a recognized right among Anglo-Americans at the time of the Bill of Rights, because of the Magna Carta: “To no one will we…delay, right or justice.”

        https://avalon.law.yale.edu/medieval/magframe.asp

        1. Nice try, but impeachment is purely political and all bets are off. If common law precedents included the right to a speedy trial, they would have included many other things which the House skipped.

          1. Voting in Congress is a political process, yet it’s governed by the Constitution – for example, one-fifth of those present can demand the ayes and nays on any question (Art. I, Sec. 5).

            What could be more political than that? Yet it’s governed by the Constitution.

            Is impeachment political? Is it governed by the norms of a fair trial?

            Yes and yes.

      2. I agree with Dilan about the inapplicability of House rules, but how the Senate can proceed is actually a question of Senate rules, and I’m not sure those permit McConnell to do that. (To be sure, Senate rules can be changed, but that requires a vote, not a unilateral decision by McConnell.)

        1. Right. And McConnell must anticipate losing any rules votes, unless the changes are unfavorable to Trump. While it is political suicide for almost any Republican Senator to vote to convict Trump, a rules vote hostile to him is likely to be seen as much more survivable, and Trump has many enemies among the Republican caucus.

          Thus he appears to plan on just going ahead with the rules adopted for the Clinton impeachment, which he can argue are still in effect. And those rules require transmittal to kick things off.

          1. “And McConnell must anticipate losing any rules votes, unless the changes are unfavorable to Trump. ”

            He will not lose any such votes. Collins and Romney are already on record as backing him in whatever he does rules wise.

            They just impeached yesterday, its Christmas recess time. Its going to be late January/early February whether he acts now or in January about the rules.

          2. I don’t doubt that there are at least a few Republican Senators that would love to stick it to Trump at no cost to themselves, but I can’t see just rolling over to the House. Collins at least will want to get this resolved by the time her reelection campaign comes around. But it has to be seen as fair. The current Senate rules, which were unanimously approved by the Senate prior to the Clinton trial allow for a dismissal without witnesses, would have to be seen as fair.

            Adding a rule that gives the House let’s say 3 months from the impeachment vote to submit it to the Senate would be more than fair. If they don’t transmit it a vote on dismissal would definitely be in order.

            1. There is almost zero chance of a Team R Senator voting against POTUS Trump – either in a rules vote, or a trial vote. No Senator will commit political suicide. Not for this bullshit.

        2. IIUC the Senate can also ignore the impeachment proceedings in the House (i.e. no rules to be discussed, etc.) until such time as the House transmits the Articles of Impeachment to the Senate.

  2. What is “transmit the articles of impeachment”? My copy of the Constitution doesn’t mention that phrase…

    I don’t see why the Senate could not decide to start the trial tomorrow, if they wanted – the last used rules state they will wait for the House managers, but there is no need for that. In fact, they are currently negotiating about what rules to use right now. It looks like a simple majority of the Senate can remove that clause, no matter what the House wants, and proceed on their own.

    1. Of course. The Senate, to use a phrase popular among Democrats lately, has the SOLE POWER to try impeachments. And if there is uncertainty over Senate Rules, they can be changed with a simple majority. It could, for example, pass a rule giving House managers a certain amount of time to show up, or else it will proceed to trial without them.

      1. What if Roberts refused to show up for that farce?

        1. The Republicans showed up for the farce in the House, I’m sure Roberts would show up for the farce in the Senate.

          1. “When it’s the pres, the chief justice shall preside.”

            Could they send the sergeant at arms?

        2. It would be a legitimate trial, not any more if a farce than Pelosi purporting to prevent a trial, and Roberts would show up.

          1. “Roberts would show up”

            Of course he would.

            The Resistance fan flic which passes for comment these days.

            1. I am not sure I like the term “resistance fan fic”, but the concept that you are expressing is very accurate.

              Again, the fundamental problem here is that Democrats favor impeachment-and-conviction, and Republicans oppose both. So the inevitable result is impeachment-and-acquittal.

              And way too many Democrats are thinking “if we just wave our magic wand 3 times, state the right incantation, drink the right potion, and come up with the right procedural mechanism, we can somehow prevent the inevitable from taking place and win this”. And you are right, that’s complete fiction.

          2. I would think he’d show up.

            Not showing up sounds like an impeachable offense to me. There aren’t too many more clearly defined, and solemn, constitutional responsibilities than the chief justice showing up for the Senate Trial of the President.

  3. Just more proof that the lunatic fringe has taken over the House Democrats.

    I don’t think Mitch McConnell is going to roll over to meet the demands of Nancy Pelosi, and if she wants a showdown with him, she will lose.

  4. I hope the Dems double down on their Stink of Impeachment strategy and drag this out as long as possible. The more and the longer they wallow in this the more it’ll hurt them.

  5. At the same time, the Senate could observe that the House has indeed spoken via a recorded vote and hold the trial immediately, potentially without the participation of The House. The only recourse would be a claim that no such impeachment had occurred, and it seems the only one with standing for that is the President.

    But that cuts both ways too, as the House could simply continuously hold impeachment votes until the Senate acts the way the House wants them to, or until either changes hands.

    The real key to all of this is that shenanigans are readily available to all parties (except the President, but even there I’m not sure there isn’t something tricky he could do that I just haven thought of yet). If you think the other guy is acting in bad faith and you’re trying to maneuver around it, you can bet they’re thinking and doing the same.

    1. The central problem is that politicians are looking for procedural solutions to the fundamental problem that other politicians disagree with them.

      The House Democrats’ problem is that the Senate Republicans have the votes to acquit the President. The Senate Republicans’ problem is that the House Democrats want to prevent them from acquitting him.

      And so we get a silly stand-off when everyone knows what the final result is going to be (impeached in the House, acquitted in the Senate).

      1. I’d wonder if the House Democrats think that if they can hold on to the impeachment until 2021, they will have the majority in the Senate.

        Of course they’d need a 2/3rds majority for any real chance at a conviction, which seems unlikely. And that strategy could be read a conceding the 2020 presidential election before it even starts.

        1. Why not MatthewSlyfield? And we can do better than that to really undermine our institutions. Why not start another impeachment inquiry? Double down on stupid.

      2. Dilan, House Democrats do not want to prevent Senate Republicans from acquitting Trump. They want a procedure fair enough to make shame process evident, and if it happens, to stoke public outrage. That is a reasonable thing to want, given that impeachment accountability depends on political process.

        1. “sham process evident”

          1. In other words, they want the right to be able to spin it.

            The right of political parties to win the spin war is not in the Constitution and is also not an important governmental interest.

            1. And I would add, arguing that the Constitution should allow the Dems to get their spin out puts the lie to all your pious claims about the Constitution around here.

              1. Mitch already promised to follow the current rules. If good enough for Clinton…

        2. The sham already occured

          This is more house democrats engaged in a political Hail Mary with a losing hand

          They have spent the past year making certain their presidential candidates can not get elected
          And then moved to damage their chance at holding the house

          There is zero chance McConnell is going to continue this sham in the senate

          If the house wishes to actually investigate their charges now that they have convicted
          They have their own chamber to do so
          It is highly unlikely that the courts will fully side with either the. House or trump regarding witnesses and documents

          In the senate McConnell holds all the cards
          Republicans could move immediately to dssmiss
          Just as House democrats get to decide what constitutes an impeachable offense so do senate republicans

          Alternately but less likely McConnell could “give democrats what the want” and allow trump to call schiff the wb the Biden’s …

          1. jbsay, I think it would be best for the nation to have a full Senate trial, with sworn witnesses, process for obtaining evidence, counsel for both sides, direct examination, and cross examination. After that, whatever happened with regard to removal would at least be judged by everyone to have been done in light of the evidence, even if not on the basis of the evidence. That is probably the best that can be hoped for, and the course of action most likely to minimize long-lasting damage to the nation’s political process.

            Because I think that, I am fine with letting Republicans call whomever they want. Bring on the whistle blower, bring on the Bidens, cross examine Adam Schiff. I don’t care. Just so long as Barry Berke gets to cross examine Giuliani, Parnas, Bolton, Sondland, Mulvaney and Trump, I will be relaxed about whatever happens. After that, whether or not Trump is removed, I will be confident that political accountability will have what it needs to work its magic, mend the nation’s politics, and restore calm.

            How about you. You good with all that?

            1. The fricking evidence is already out there Stephen. Nobody needs a trial to see the evidence!

              1. No live testimony in the Clinton trial.

                1. Yeah. And I would even argue the depositions they allowed were pretty superfluous. Same thing there- we all knew the evidence, right?

                  I mean, I get that the Constitution uses the word “trial”, but the Nixon case establishes that a “trial” can be whatever the Senate wants it to be. And that seems right to me- often times we are going to know all the facts, and all you need in the Senate is some closing arguments and a vote.

                2. Bob, I’m good with that. Use the Clinton model. Trump testifies under oath before a Senate investigator from the other party. To do the main questioning, Barry Berke would be fine with me. Glad you thought of it. But for the sexy stuff, let’s use an experienced expert. Bring in Brett Kavanaugh, to get all the explicit details about Stormy Daniels.

                  1. Clinton never testified “before a Senate investigator from the other party”.

                  2. That wasn’t the Clinton model.

                    Clinton was investigated by an independent counsel, who questioned him in a grand jury proceeding. Neither the Senate nor the House ever questioned him. They only got to speak to his lawyers and view the two videotapes of his testimony (the other one being the Paula Jones deposition).

              2. Dilan, not good with it, I take it.

                You take the Queen of Hearts one better. You seem to be demanding an acquittal first, followed by no trial at all. Your comments are as good a clue as anyone could want to prove the Democrats are on the right track.

                1. I’m not demanding anything.

                  I am saying the following- it is obvious that the Senate will acquit. If that were actually in doubt, I would favor a more elaborate trial. I don’t think it’s constitutionally required, but I would favor it because some Senators would benefit from the arguments in making up their minds.

                  But given that is not the case, we don’t need a six week long television show. And it’s the Senate’s prerogative not to have one.

        3. McConnell has proposed using the rules unanimously adopted by the Senate during the Clinton impeachment.

          What could be more fair than that?

          1. Kazinski, so before the trial, Trump gets questioned under oath by Barry Berke? That’s worth thinking about it.

        4. House democrats want a fair procedure Stephen? Did you actually manage to type that without vomiting over your keyboard?

  6. I can’t think of a time in U. S. Congressional history where the House failed to follow an impeachment with an exhibition of the charges in the Senate (though maybe some of those cases where people resigned to avoid an impeachment trial could count).

    Even in the case of the Earl of Danby in 1679, the House of Commons (the impeaching body) exhibited charges to the House of Lords (the trial body), though there never was a trial in the Lords because King Charles II sent Parliament packing soon after this. Which was too bad for Danby, because he was supposed to stay in the Tower of London until the charges were resolved.

    So he was stuck in the Tower with no way of knowing if he’d ever be tried. Finally, in 1684 the courts released him with on bail. The judges were hesitant to release someone who had been impeached in Parliament, lest they get in trouble the next time Parliament met – so to cover their asses with Parliament the judges set a yuuuge bail. Danby was never tried.

  7. Who cares if they are “transmitted”? They’re on the internet. The Senate can download them, deem them “transmitted” and hold the trial whenever it wants. If the managers don’t show up, they can acquit Trump.

    1. Putting the issue in terms of the President’s right to a speedy trial would avoid the farce of a no-evidence acquittal.

      We don’t have to insist on applying the Sixth Amendment, with all the controversy that would re-ignite about “is it a criminal trial”? Instead, go back to Magna Carta and the requirement that justice not be delayed (the Ninth Amendment makes clear that basic Anglo-American rights like these apply whether spelled out in the Constitution or not).

      By all means let the Democrats/media try to spin a scenario where the House votes charges, fails to prosecute, and the Senate dismisses the charges for being unreasonably delayed.

      1. (Who am I kidding, they’ll easily spin it as “rejecting the charges without a hearing after failing to negotiate with the House”)

      2. Sure, there’s lots of options. Start the trial on a reasonable date, say Jan 21. The Senate can hold it however they want. The idea that failing to transmit the articles ties the Senate’s hands is a yellow fringe level of reasoning.

        1. They can hold a debate and vote based on the record of the impeachment proceedings in the house. They don’t even need impeachment managers.

        2. The “delay of justice” concept puts the matter on a higher plane – if the House misbehaves so badly as to refuse to promptly send managers to exhibit the articles of impeachment.

          This wouldn’t be like a routine delay like in a criminal trial – it would be more like a grand jury issuing an indictment and the prosecutor putting the indictment in his pocket and waiting around trying to decide when or whether to formally bring the indictment into court.

          For the House to arbitrarily delay even the *start* of the trial, as opposed to seeking reasonable postponenements *after* the trial starts, would be wrong.

      3. None of that is necessary. The Constitution gives the Senate the sole power to try impeachments, which includes setting the rules for the trial. It could, for example, make a rule giving the House a certain amount of days to present its House managers, or else it will begin the trial without them. It could offer (or not) someone else (such as a Senator or group of them) prosecutorial duties. If no one wants them, it could say, “OK. Let’s vote.”

      4. He had a no-evidence impeachment, why not a no-evidence acquittal?

  8. Here´s hoping that the Senate will leave the decision of calling witnesses to the respective litigants — the House managers and the President´s defense team — with wide open examination for both sides. This is a trial, after all, and the decision should be based on evidence.

    1. Following any accepted rules of procedure ?
      As an example should the senate allow hearsay(gossip) just because the house did ?

      And why shoul the senate give the house witnesses they never bothered to call themselves ?
      Pelosi has her own chamber of Congress
      She can question anyone the courts allow
      But she does not run the senate or git to dictate to it

      We have had some serious abuses of power
      But not by trump

      You would think pelosi thinks she is president
      Or queen

      The house has thrown out the rules
      They have fully legitimized do whatever the hell you want
      There is no good reason for McConnell to save them from themselves

      I would further note time is NOT pelosi friend
      It is trumps

      Democrats had their way with Trump Russia
      That is ending horribly and is only likely to get worse
      We are told everything about Ukraine is Russian propaganda
      When have we heard that before ?
      It will only take a small amount of substance regarding Ukraine to tank any claim trumps request(or demand if that is what you need to beleive) was legitimate
      Horowitz just told us what the standard to start an investigation is
      Trump easily met it

      1. “ Democrats had their way with Trump Russia
        That is ending horribly”

        Horribly for Trump’s criminally convicted comrades, at least.

      2. Seriously, hang yourself.

        You’re arguing that evidence should not be presented during a trial, and lying incessantly.

  9. Gee, how will it play politically if the charges are never transmitted?

    I bet I can guess. I bet Pelosi can too.

    1. Mainly it will make Congress and especially the House Democrats look like buffoons, and the fence-sitting public will shift a little to sympathy for Trump. I doubt Democrats will be cheered enough for a large turnout, but Republicans will just be all the more inspired to vote in protest of the nonsense.

  10. I think the House managers should simply show up ready to present their evidence to the Senate. It is the Senate’s business to decide how to conduct the trial. I think the House should accept this. The House just doesn’t have much of a negotiating position here.

    If the House refuses to present its case to the Senate in a timely manner, the President’s supporters will be able to say there was never any case to present, the whole impeachment was just a political stunt that was never intended to be taken seriously or followed through on.

    1. I also agree that if the Senate refuses to let the House present its evidence before deciding, it can rightly be accused of a kangaroo acquittal and putting politics above its constitutional duties.

      1. Why? They don’t need the House to present evidence. They can take notice of the impeachment proceedings in the house, and debate and vote based on that.

        1. Because the Constitution refers to the Senate’s power to “try” impeachment and refers to persons “convicted.” Trials and convictions imply evidence and impartial tribunals.

          Nothing in the Constitution prevents the President from shooting Supreme Court Justices he doesn’t like and replacing them with ones he like, or for that matter from shooting Senators who he thinks are in sufficiently fervent in their support and might be inclined to convict.

          It is only norms of civilized behavior that prevent these things. This is similar.

          Trying a person without evidence is different in degree from shooting political opponents as a way of resolving political disputes. But it is not different in kind. It is a lesser step down the same slippery slope.

          1. Nothing in the Constitution prevents the President from shooting Supreme Court Justices he doesn’t like and replacing them with ones he like, or for that matter from shooting Senators who he thinks are in sufficiently fervent in their support and might be inclined to convict.

            It is only norms of civilized behavior that prevent these things. This is similar.

            Well, norms and, inter alia, 18 U.S.C. § 1114.

          2. Trials can end in motions for JNOV and motions to dismiss and motions for acquittals too.

            Nothing in the word “trial” requires ANY tribunal to go all the way through.

          3. “Trials and convictions imply evidence and impartial tribunals.”

            The House heard loads of evidence during the impeachment hearings. As I said, the Senate could try him based on that. It doesn’t need Managers or new testimony, and such a trial would be even more politically viable if Pelosi refused to send Managers.

          4. “Trials and convictions imply evidence and impartial tribunals” but nothing in that logic nor in the Constitution demands that members of the House serve as the prosecution during that trial.

            As many have already said, the House proceeding is most like a Grand Jury. Once they’ve done their job, well, that’s it – they’ve done their job and it’s the responsibility of the team running the next part of the process. It could be (and likely is) entirely the Senate’s job to look for and present evidence.

    2. What is a timely manner, while subpoenas are pending and unattended to?

      1. The DC Circuit last night called for briefs on the mootness of the subpoena to McGrath. So maybe not “pending” for long.

      2. The pending subpoenas was a decision made by the House, Stephen. Pelosi could have delayed impeachment, litigated the court cases and, if she won, enforced the subpoenas. Then voted on impeachment.

        The House decided they would rather do it sooner, for what were basically political reasons (and I am not insulting them- the Constitution absolutely permits them to take politics into account). But having done that, it seems to me they can’t then complain that the Senate isn’t letting them enforce their subpoenas.

  11. Pelosi has herself worked into quite a corner. She knew better then to start a party-line impeachment process, but played into the extreme left’s hands by allowing it.

    Now the best she can do is refuse to transmit the articles of impeachment to avoid absolute embarrassment at a trial where the Dems don’t control the process and will have to test their arguments in a truly adversarial environment. Pelosi can’t allow that because the truth that this is just another installment of the sham witch hunts will come out.

    McConnell should just say if the House doesn’t send over the articles in 30 days the Senate will refuse to hold a trial or will dispose of the charges when they do end up in that chamber with a quick motion to dismiss.

    1. will have to test their arguments in a truly adversarial environment.

      Well, of course, she’s not worried about that at all. What she’s worried about is that the Senate won’t allow the arguments to be tested at all. Because if they’re legitimately tested in good faith in an adversarial environment, Trump loses 100-0.

      1. Ha ha. Only if CNN or MSNBC run the impeachment would something like that happen.
        What if President Trumps reaches the conclusion that Ukraine is not vital to US security interest and stops sending aid, is this also impeachable?

        1. Refusing to deliver money appropriated by Congress?

          Yes, that’s impeachable. What other simple questions would you like answered, instead of reading the Constitution yourself?

          1. Not too Smart James. Notwithstanding the grossly imprecise nature of your comment, at some point you’ll have to confront the reality that the president never refused to deliver any appropriated money. Or maybe you won’t. The resistance has been out of reality since Nov. 2016.

            1. “The reality” is that the president did refuse. Then he was caught red handed, and only then delivered some, but not all, of the money that had been appropriated.

              1. Well that’s certainly the delusional Schiffian version of reality. We’ll see if the rest of the country agrees with “pee” dossier champion next November. Keep your little pink hat handy after the Senate properly dismisses this constitutionally incoherent refuse.

        2. What if President Trumps reaches the conclusion that Ukraine is not vital to US security interest and stops sending aid, is this also impeachable?

          Well, yes. Congress legislated the aid. A president has no legal authority to decide otherwise.

          But in the real world a president would not be impeached for that decision, no matter how illegal, if done in good faith. It’s the corrupt motive that makes it impeachmentworthy.

      2. Good faith. Really? After Nadler and the Schiff Star Chamber? That lump Nadler didn’t even bother to call a fact witness. It’s the House’s responsibility to establish an impeachable offense, not the Senate. Does it cause you any physical discomfort to be that hypocritical James?

  12. How many voters like it when congressmen proclaim something is serious one day and then play games with it the next?

    1. “It is our solemn duty to play politics with this pile of dog shit.”

      1. So solemn.

      2. And ixnay on the erringchay, guys!

  13. If the House doesn’t transmit the articles of impeachment for more than a few weeks, it will backfire on Democrats as it would make it clear that the impeachment was only a political move and the House actually has no interest, or insufficient evidence, to justify a conviction. That will not play well to moderates.

    1. Well they don’t have any interest in pressing a trial because it was a completely political move. And there is no evidence so I highly doubt they want that to become readily apparent when the Senate conducts a trial.

    2. The moderates you have in mind must all be moderate Trump fanatics. Other moderates are likely to take an interest in what the Senate procedures actually will be, and whether they will impartially test the evidence in public. Pelosi’s delay will focus media and public interest on that question. There will be plenty to discuss. Mitch McConnell does not like it when things get discussed.

      One key question. In a dispute between House and Senate over an alleged sham procedure in the Senate—with plenty of evidence on public record that Republicans do not want and will not tolerate witnesses, counsel, procedure to produce evidence, examination, and cross-examination—will Roberts show up to help the Republicans along, and lend his name to the sham? With an eye to history, what would you do? If the CJ declined, do you suppose the Republicans would try to get away with calling it a trial, and ending the process?

      1. “Other moderates are likely to take an interest in what the Senate procedures actually will be”

        Your political punditry is worse than your constitutional interpretation. No “moderate” votes give a crap about Senate procedures.

      2. “The moderates you have in mind must all be moderate Trump fanatics.”

        Moderate (I’d probably prefer “centrist” here) that detests Trump.

        The impeachment mess just looks like more of the same from our political betters. It has all of the gravitas that the rest of our politics has these days – approximately the same gravitas as monkeys flinging shit at each other.

        I remember the Nixon hearings. The House in that era actually took the time to call all of the important witnesses and pushed for important documents. The House in the current matter couldn’t be bothered to take the time to get testimony from important witnesses like Bolton. Why should McConnell clean up their mess for them?

        1. The House in the current matter couldn’t be bothered to take the time to get testimony from important witnesses like Bolton. Why should McConnell clean up their mess for them?

          There’s already sufficient evidence to convict. Why would they want to delay for months in order to get mere cumulative evidence? Some Republicans are already taking the bullshit position that it’s too close to the election for impeachment; if this dragged out until, e.g., March, they’d refuse on that grounds alone.

          1. Well, Schumer disagrees with your claim that there’s enough evidence since his proposal to McConnell included testimony from Bolton and Mulvaney.

            Nobody is serious about this. It’s just political gamesmanship all the way through. Fall for it if you want, but I decline to do so.

  14. “The House may not transmit the articles of impeachment until the Senate trial’s procedures are established”

    I think your article’s subheading could have been written a bit more clearly. English is not always a precise language. When I first read this, I took it to mean that the House *cannot* transmit the articles [etc etc], while of course you meant it as *possibly might not choose to* transmit the articles. “May” swings both ways, so to speak.

    (The body of the article makes it very clear which meaning you intended. But to the extent you want to edit and clean it up . . . .)

  15. Except that time is against the Dems. The longer they wait, the worse it will get.

    Moreover, House Democrats want to be talking about kitchen table issues during the election, not impeachment. Eventually, Legislation and the impeachment expire at the end of the house term.

    Forcing Dem Senators to sit for a trial during the primary creates chaosin the Dem Presidential race. Putting the impeachment trial right before the election also favors Republicans.

    Lol, House Dems should want it over and be thankful McConnell wants speedy affair. I expect McConnels position to be “I’m in no hurry, we’ll discuss rules when they transmit the articles.”

    1. Seems like it might be convenient for the Ds to postpone a trial, until they see whether their nominee is a sitting Senator. Then, once nominated, that person could resign to run for President, and the trial could go on without disrupting the campaign.

      1. Republicans should hope Dems are dumb enough to delay it until after the primary. First, it undermines the urgency of the impeachment. Second, in the middle of a Presidential run, the nominee wants to be talking about issues that affect people, like jobs and the economy, not impeachment. The closer we get to Nov 2020, the more people will say, “wut, you couldn’t win legitimately?” Finally, right now I foresee no nominee coming out of the Super Tuesday Primary and a contested convention. I think that Biden, Warren, Sanders, and one other candidate will split the delegates 30-25-25-20.

        1. See those two 25s you got in your breakdown? I’m guessing both Warren and Sanders are smart enough to notice they add up to 50. Maybe they will flip a coin to see who takes the 50.

      2. “that person could resign to run for President”

        LOL That would never happen. Trump may very well win, then they would be ex senator.

        You are not thinking at all on this. You are letting Trump rot your brain.

    2. Democrats, when you’re in a hole, stop digging.

  16. Glad you reframed from saying Trump has been “IMPEACHED”, Josh. Amazes me how the entire media is so ignorant of when a President actually becomes IMPEACHED.

  17. It’s a losing idea, that somehow the President is impeached, but the House doesn’t have to appoint Impeachment Managers.
    Either Impeachment is WHEN the Managers are appointed, in which case the President has not been impeached, or Impeachment is when the articles are voted on, in which case the President has been impeached and the Senate can move forward with the trial.
    The House can complain all it wants that the Senate can’t move forward without the House Managers, but that is a meaningless complaint, because there is no entity to resolve it.
    What, the House is going to appeal to the US Supreme Court and make the argument that it has impeached the President, but doesn’t have to appoint House Managers for the trial?
    The Senate can simply give a date for the trial, and if the House doesn’t like it, the House can’t do anything about it but whine.

  18. Seems like a minimal formula for an impeachment trial includes the following ingredients:

    1. Articles of impeachment.

    2. Impeachment managers.

    3. Senators.

    4. Senate rules.

    5. The presence of the Chief Justice.

    There are several ingredients in that list which Senate rules are powerless to affect. How many folks will think they have seen a legitimate trial if it goes forward without all the ingredients?

    1. I think that depends on why some of the ingredients are lacking.

      We have articles of impeachment, we have Senators, we have Senate rules, and no reason to suppose the Chief Justice will be absent.

      If we lack impeachment managers only because, after the Senate sets a reasonable time for the trial, the House refuses to send managers, reasonable people are going to see a default judgment in the President’s favor as legitimate.

    2. The Constitution requires your items 1, 3, and 5. The Senate already has standing rules. Only convention says the prosecution of an impeachment trial need to come from the House. If Democrats insist on that, but then not provide any, they are solely responsible for the situation falling short of the situation they claim to want. Likewise for formally transmitting the articles of impeachment from House to Senate.

  19. Professor,

    “Under current Senate rules, the trial does not begin until managers transmit the articles of impeachment . In theory, the Senate could change its rules, and hold a trial without articles or managers. I think that option is really unlikely”

    Suppose the President’s lawyers filed a motion with the Senate, saying that the House was threatening to unconstitutionally delay the trial, and asking the Senate to respond by setting a deadline for the House to exhibit its articles of impeachment?

    I would imagine that the Constitution would require the Senate to consider this motion, and that if Senate rules allowed the beginning of a trial to be unconstitutionally prolonged, that rule would be unconstitutional. So if we assume the rules allow unconstitutional delays, the rule can and must be disregarded.

    Thus, the Senate wouldn’t need a specific rule to convene as an impeachment court to hear the President’s motion to set a deadline. The alternative would be to let the Constitution go unenforced. And I’m referring to the Ninth Amendment, not the Sixth, since the right to be free of delayed justice applies to all proceedings and dates back to Magna Carta, which sounds like the definition of a right retained by the people (even if the person is the President).

    1. Eddy, as the hippies used to say in the Haight, “Wow! Far out!”

      1. Perhaps you could put down the bong and consider the actual merits of the argument.

        1. STONER ONE: “Wow, like, man, what if the President demanded that his impeachment trial started within a reasonable time and not be arbitrarily delayed?”

          STONER TWO: “Are you sure you’ve smoked enough marijuana? Because your idea sounds like it makes sense.”

          STONER ONE: “OK, OK – I can, like, see the penumbras, man. There, are you happy?”

          1. Eddy, I can see you don’t speak native Hippie. Permit me to help:

            STONER ONE: “Heavy, man.”

            That’s the entire subsequent conversation.

            1. Pray tell, what is so trippy about the President asking that there be no arbitrary delays in his trial?

          2. I read every comment on Reason
            Because I get stuff like this!
            Thank you for stoner 1!

    2. “Suppose the President’s lawyers filed a motion with the Senate, saying that the House was threatening to unconstitutionally delay the trial, and asking the Senate to respond by setting a deadline for the House to exhibit its articles of impeachment?”

      This strikes me as a very plausible vehicle for a rules change, if the House is perceived as delaying the trial.

    3. I would imagine that the Constitution would require the Senate to consider this motion,

      Why would you imagine that? The Constitution does not require any specific procedures at all (other than the CJ presiding and a 2/3 vote for conviction). It does not require that they even allow an impeached party to “file a motion,” let alone that they consider it.

      and that if Senate rules allowed the beginning of a trial to be unconstitutionally prolonged, that rule would be unconstitutional.

      There’s no such thing as unconstitutionally prolonged, but to the extent there is, the Senate would be the party to decide that. I guess it could decide that one of its own rules is unconstitutional, but that would be weird.

      1. Since we’ve gone beyond weird in so many areas, the possibility of a conflict between a Senate rule and the Constitution. It’s one of the most believable possibilities.

        “There’s no such thing as unconstitutionally prolonged”

        What is the basis for your assertion?

        “but to the extent there is, the Senate would be the party to decide that.”

        I’ve suggested that the Senate decide that very point.

        “Why would you imagine that?”

        As the tribunal for deciding impeachment cases, the Senate is responsible for making sure each side has its legal rights.

  20. “”It’s difficult to determine who the managers will be until we see the arena in which they’ll be playing in,” she said.”

    As grammar takes it on the chin yet again.

    1. “…the arena in which they’ll be playing in.”

      Gotta hand it to politicians. Who says you can’t please everybody?

  21. I’m of the opinion that the Senate should refuse to take up the articles whether the House says they can or not.

    If Republicans win the House in 2020 then the House can repeal the articles of impeachment.

    If Republicans lose the Senate in 2020 then the lame duck Senate can acquit the President (who probably would have lost the 2020 general election as well).

  22. Sundance suggests the impeachment articles were written and passed to support the House’s pending court cases, primarily to obtain political dirt and influence the 2020 election.

    It’s an interesting theory.

  23. Asking to know the Senate’s plan for the trial before transmitting the articles of impeachment doesn’t seem unconstitutional, it’s only if they decline to transmit the articles because they don’t approve of the plan that they run afoul of the Senate’s sole power. The senate should simply say they plan to ask the managers if they have anything to add to the existing record then debate and vote on how (and whether) to proceed. If Pelosi rejects that plan then they can decide how to move forward with the trial without the cooperation of the House.

    1. Which means the House would have to call the witnesses Schumer wants, but the witness won’t show up to the house until compelled by a court, with appeals probably SCOTUS.
      It’s like quicksand, the Dems are going nowhere.

  24. Could the Senate charge Pelosi with “Obstruction of Congress” for holding back transmittal of the articles?

    Could they send Capitol security to Pelosi’s office to use force compelling transmittal of the articles? or to bring Pelosi to the Senate floor in chains?

    I’m not trying to be serious. I’m mocking the ridiculous antics of Congress.

  25. Mitch and the GOP caucus, in January, will decided on rules and set a trial date.

    Then the House will send managers or not.

    Then the Senate will dismiss for failure to prosecute or have a trial. The trial will consist of the managers making arguments, Trump’s lawyers arguing, then a verdict. There will be no witnesses from either side. The GOP will defeat any Dem motions.

    This is the way it will happen.

    1. Bob is likely correct, and a lot less crazy today than most of the posters above.

    2. Depends on the actions of the Fourth Estate, I think.

      The most fitting and proper response is to pass more district judges. A lot them. Every week. And just wait for Durham to do his thing.

      Team D argued that POTUS Trump was a danger to national security, so they impeached him. It would look pretty goddamned stupid to vote to impeach on the basis of a threat to the Republic, and then dilly-dally with transmitting the articles to the Senate. That will look like a cynical ploy to the electorate. The electorate won’t like that.

  26. It is evident from comments that both sides know there is a lot more to find out. Everyone seems to understand Republicans are trying to close the case before the still-hidden stuff comes out. That is why no Trump supporter wants witnesses.

    So I doubt Trump will be happy with what almost every pro-Trump comment here seems to advocate, in one form or another—that Republicans just ignore the Democrats, and declare the case over.

    What’s wrong with that? It may serve to get Republican Senators out of the spotlight, and at least temporarily off the hook—a result for which many long desperately. But it would leave Democrats more motivated than ever, and still investigating.

    That is not what Trump wants. For Trump, that is about the worst result possible. Trump does not want case over in the Senate, with the House still chasing him. Trump wants vindication—and no more damn questions. What good is a Senate trial to Trump, if it does not deliver that result?

    Even Trump can probably see that McConnell has started to trend toward a different road. McConnell is trying to protect Senate Republicans, and McConnell’s own status, first and foremost. He has been pretty crafty at making it look like he puts Trump first. But if to stay majority leader, McConnell has to throw Trump overboard, that is what McConnell will do.

    I wonder how long it will take rank-and-file Trump loyalists to figure out that Mitch McConnell is nobody’s friend but Mitch McConnell’s. Ending the Senate trial in a way that infuriates Democrats will not take away Democrats’ power. They will retain that power, and focus it again on Trump, but with renewed patience. That cannot be what Trump wants. But if it can get the Senate out of the impeachment traffic during the run up to the election, it is very much what Mitch McConnell wants. Interesting times.

    1. “So I doubt Trump will be happy with what almost every pro-Trump comment here seems to advocate, in one form or another—that Republicans just ignore the Democrats, and declare the case over.”

      If by “pro-Trump comment” you mean “skeptical of impeachment but in any case wants the House to fish or cut bait and not drag out the proceedings,” then I suppose I made pro-Trump comments. But you then take back the characterization by saying Trump wouldn’t be happy with what I say.

      So what? I suggested Trump has the right to a prompt trial without arbitrary delays, but if Trump doesn’t want that, but sees it to his advantage to spin out the trial, OK then, let him do as he pleases, he can waive his rights.

      “no Trump supporter wants witnesses.”

      I must not be a Trump supporter, then, because I’m genuinely interested in seeing some witnesses in front of the Senate, from both sides.

      1. But before there can be witnesses, the House has to appoint its managers and inform the Senate in a timely manner of the charges, as has been done in every previous Congressional impeachment (except perhaps where the defendant resigned).

      2. Eddy, sorry I overlooked you. Presumably you can see most others oppose witnesses. It take that to mean those others are fine with an appearance of unfairness, and fine with the political damage to the nation which would inevitably follow.

        Would you go the whole route? Support compulsory process for evidence, open-ended witness lists, sworn testimony, counsel for both sides, cross-examination?

        I think that is what it will take to convince the nation the Trump affair has been disposed of in light of the evidence. Which does not necessarily mean fairly—but if there is unfairness in the verdict, doing it in light of the evidence opens the way for political accountability. That seems the best outcome available, so I suggest it would be unwise to settle for less. How about you?

    2. “…no Trump supporter wants witnesses.”
      I am sure plenty of Trump supporters would love to have the Bidens and the whistleblower called as witnesses.

      In the House, the Democrats controlled the process and refused to call witnesses that the Republicans wanted. If the Republican-controlled Senate did the same, they could have the show of the Bidens being accused of bribery and trying to explain why Hunter got that position, while refusing to call the people the Democrats would want.
      Democrats would complain but the Republicans could point out that they got to call witnesses they wanted while the case was in the House.

  27. “That is, the President is not impeached until the House says he is impeached.”

    The House, and everyone else, has been saying that he has been impeached for the past 24 hours. They would look pretty dumb if they were to turn around and say that he hasn’t been impeached.

  28. The House has the sole power of impeachment. That means someone is impeached when the House says this has happened. The House could declare this to be when the articles are adopted by a majority vote, since the House runs by majority votes. The House could establish some other marker of when the impeachment has occurred. It could not happen without a majority vote, but the House could require a 10 day, or 5 year, waiting period after the vote to make the impeachment complete. “Sole power” taken literally.

    On the other hand, since the Senate has the sole power to try, it can decide when to hold that trial. It could decide that the trial consisted only of a vote to dismiss.
    Assuming that the Senate did not vote by 2/3’s to convict, the House could do nothing to compel the Senate to do with the impeachment what the House wanted. Nor could the President do anything to force the Senate to behave in some way not mandated by the Constitution. If the Senate were to vote in the next 5 minutes to dismiss the House would not have any way of stopping it.

    The question of whether the President has been impeached becomes interesting if the Senate votes to convict. What little is clear is that the Senate cannot convict someone who has not been impeached. If the Senate were to vote to convict before House impeached, then a President would have a great argument that they remained in office. But if the Senate votes to acquit before the House declares the impeachment to be completed, that is up to the Senate’s sole power.

  29. Presumably the Democrats want to at least give themselves a chance to go home and tell their constituents that they lived up to the promise to impeach Trump. Having the whole thing go away with a prompt acquittal would also interfere with fundraising on the issue.
    Presumably the Democrats think that they will benefit more than the Republicans by going back to states and districts with impeachment but no trial. Of course, some Democrats may be in trouble over this and some Republicans may do well leaving it hanging. The House leadership can think they personally benefit and that enough of their caucus benefits to keep the leadership in power.

    Entertaining as a trial with witnesses would be, since no one imagines there could be 67 votes for conviction, there would be nothing accomplished. It is hard to imagine the Republican controlled Senate permitting any anti Trump witnesses who did not already testify in the House. If the House waits long enough and Biden appears to have locked up the nomination, the Republicans would love to haul him and his son in for a show trial of their own. And Schiff. Maybe the whistleblower will be protected by federal statute. A good time would be had by all, but the outcome would be Trump remaining in office.

    Not the case here, but if the Senate were to dismiss the case too quickly for the House’s liking, could the House simply vote the identical articles again and send them back? Would that obligate the Senate to do anything at all?

    Can the Senate, now, say in effect “It is obvious there will be no conviction, therefore we will not waste our time on this nonsense. As far as we are concerned, the matter is over.” No House managers, no testimony from anyone. Sole power.

  30. “Under current Senate rules, the trial does not begin until managers transmit the articles of impeachment . In theory, the Senate could change its rules, and hold a trial without articles or managers. I think that option is really unlikely”

    What happens if Chief Justice Roberts disregards the Senate’s rules? What are they going to do, appeal? (I doubt that parliamentary motions such as an “appeal to the house” would be legal during an impeachment trial, but stranger things have happened.)

  31. Hard to imagine Roberts disregarding the rules. He is a rule follower. The Constitution gives the Senate control over its rules. Roberts would not try to replace the Senate rules based on his opinion- not being a member of the Senate at all. Certainly the Senate would have no reason to go along with a chief justice attempting to do this.

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