An Impeachment Counterfactual: Could the Senate hold a trial even if the House does not transmit the Articles of Impeachment?

Only the House can define when the President has been impeached but the Senate could deem the President is acquitted due to lack of prosecution

|The Volokh Conspiracy |

The Senate's impeachment rules were adopted in 1986. Rule 1 provides that impeachment process begins in the Senate "[w]hensoever the Senate shall receive notice from the House of Representatives that managers are appointed on their part to conduct an impeachment against any person and are directed to carry articles of impeachment to the Senate." At that point "the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment, agreeably to such notice."

Rule 2 then explains that "the Presiding Officer of the Senate shall inform the managers that the Senate will take proper order on the subject of the impeachment" after the "the managers of an impeachment shall be introduced at the bar of the Senate and shall signify that they are ready to exhibit articles of impeachment."

Pursuant to Rule 3, after "such articles being presented to the Senate, the Senate shall, at 1 o'clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful."

Simply stated, under the current rules, the presentation of the articles by the managers triggers the commencement of the Senate trial. If the House does not transmit the articles, the Senate trial cannot begin.

The Senate could craft a different rule. For example, the Senate could specify that the impeachment proceedings begin 24 hours after the House managers transmits the articles of impeachment, or 24 hours after the Secretary of the Senate learns that articles of impeachment were approved, whichever happens sooner. (We presume that the Secretary of the Senate does not live under the rock, and will learn, one way or another, about an impeachment.)

The rule I proposed above would trigger something of a Schrödinger's impeachment–the President is simultaneously impeached, and not impeached, depending who you ask. That is, the House says "not impeached" but the Senate says "impeached." Moreover, the Senate trial could begin before impeachment managers were even appointed. Would such a Senate rule be constitutional?

The House would likely argue that the Senate rule is unconstitutional. That is, the President is not impeached until the House says he is impeached. And the House would argue that the act of impeachment is not final unless, and until the House deems it final. Under the current framework, the House would have to appoint managers, and transmit the articles of impeachment. This position would flow Article I, Section 2, which gives the House the "the sole Power of Impeachment." The phrase "sole" suggests that the House, and not the Senate, decides when an impeachment is complete.

But what about the Senate? The Senate may argue that the appointment of the managers, and the transmission of the articles are mere formalities without constitutional significance. (A professor on the constitutional law list-serve drew an analogy between these ministerial tasks and the formal delivery of Willam Marbury's commission.) Indeed, there is no constitutional requirement that the Senate allow House managers to present the articles. The Senate could handle the proceedings however it chooses. But can the Senate reach a different conclusion than the House about whether the impeachment is final? Article I, Section 3 provides "[t]he Senate shall have the sole Power to try all Impeachments." The Senate gets to decide how to try an impeachment. But a precursor to that trial is the establishment of an "impeachment," which the House gets to define. I have doubts about whether such a Senate rule would be constitutional.

Now, consider another Senate rule: if the House of Representatives approves an article of impeachment, but fails to transmit that article within thirty days, the Senate shall treat the article as dismissed for lack of prosecution, and the impeached official shall be deemed acquitted.

This proposal somewhat resembles Federal Rule of Criminal Procedure 48(b):

The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:

(1) presenting a charge to a grand jury;

(2) filing an information against a defendant; or

(3) bringing a defendant to trial.

Unlike my first proposal, this second proposal does not purport to define what is and is not an impeachment. Rather, it simply deems the person charged with the offense as acquitted–a power within the Senate's prerogative. The House can dither and take as much time as it wants, but it cannot demand a trial at the time of its choosing. If the House waits too long, it will miss its chance of having a trial at all. I used thirty days as an example, but different time limits may be appropriate. The Senate could reasonably conclude that it does not want a cloud to hang over the accused indefinitely–especially if the President has been impeached–and the House should be pay the price for failing to transmit the articles within a reasonable time.

I think such a rule could pass constitutional muster. But I would not support this change. The House is under no obligation to transmit the articles, but failing to do so bears political costs. Indeed, waiting undermines the urgency with which the articles were approved. Political hardball in the Senate may not be necessary.

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  1. The Republican senators should have already demanded Trump drop out of the 2020 race…the fact they haven’t means their Senate trial will be nothing more than a sham.

    1. Why would you expect the Senate to behave any better than the House?

      1. I expect nothing of this current incarnation of the Republican Party that somehow has Trump as president and Liz Cheney in a leadership position among House Republicans. This Republican Party exists solely for unethical power hungry people to advance their political careers. On some level this Republican Party is like the Whigs that existed for everyone that wasn’t a Democrat…with the big difference I doubt any Abraham Lincolns exist in this morally and intellectually bankrupt organization.

        1. Utter nonsense, Sebastian. I’m sure your bastion of virtue Hillary Clinton fan club bill has come due.

          1. The “bastion of virtue Hillary Clinton” fan club. Not quite as many members as you imagine, and at the same time a lot more than in the “bastion of virtue Donald Trump” fan club.

            1. I wonder how many nationally would assert that Trump is virtuous. Not that he has some virtues (even Hitler liked cats, or so I’ve been told), but actually virtuous.

              Setting aside the trolls who I think make this an unanswerable question (because Hanlon’s Razor will definitely apply), how many would claim:

              A) actual virtuousness
              B) virtuous compared to the average Democrat
              C) virtuous compared to Democratic Party Leadership
              D) virtuous compared to AOC et al
              E) virtuous compared to other 75 year olds
              F) virtuous compared to other Presidents
              G) virtuous compared to other Democratic Party Presidents
              H) virtuous compared to other billionaires
              I) virtuous compared to other world leaders
              J) virtuous compared to Hillary Clinton
              Etc.

              On two of those I think he stacks up reasonably well, and the rest are just hilarious to think about. But this may be less of a “who”s fastest” race and more of a “I don’t have to be faster than the bear, I just have to be faster than you” sort of race.

              1. I submit that no politician, or at least very few, are virtuous.

                I also submit that the Constitution doesn’t give a whit about virtue.

                It’s interesting that (a) you apparently think Hillary is/was virtuous, and (b) that means Trump is not qualified to be President.

                1. I think it’s interesting that you think these two different concepts are related to each other.
                  Trump is unsuited to be President. For some reason, his fans can’t see this obvious fact. Some of them are blinded by partisanship, actually, quite a few of them, and are trapped in a false dichotomy wherein they don’t want a Democrat to be President, and therefore Mr. Trump is awesome-sauce.

                  The current alternative to having Mr. Trump be President isn’t elevating Hillary to the job. The current alternative to having Mr. Trump be President is having a Republican be President. A fact the editors of “Christianity Today” worked out pretty quick, but one that eludes a good many Trump apologists, who claim that partisanship is the only motivating factor behind the effort to unseat him. The fact that he did exactly what he’s accused of doing, and would be more than happy to do it again, is another fact they don’t take into account.

                  1. “The current alternative to having Mr. Trump be President isn’t elevating Hillary to the job. The current alternative to having Mr. Trump be President is having a Republican be President.”

                    You mean like Shrub #1 or Shrub #2 or their blood relation, The Jebster????….LOL!!!…It is because of pieces of shit Republicans like this that Trump got elected!!!!

          2. Dan J, it is impossible to argue and win an arguement with a insane idiot. Best to not feed the trolls.

    2. Seems appropriate since the House proceedings were a sham.

      1. They called every logical witness and every witness produced damning evidence against Trump. Trump has been free to produce exculpatory evidence but he hasn’t because he is guilty.

        1. I heard from Tom who heard from Sam who heard from Frank…
          Frank, how did you come of this knowledge?
          I presumed it because the State Dept didn’t answer back.

          Wow! Damning evidence!

          1. Trump released the smoking gun nitwit.

            1. Smoking gun? lol

              Neither article of impeachment lists any federal statute that was violated. There are no crimes here, just like there were no crimes in the Mueller Report.

              All these years of frustrating investigations, and Trump is still uncharged with any criminal wrongdoing.

              I’ve been laughing with tears the last three years at progressive fantasies.

              1. Neither article of impeachment lists any federal statute that was violated. There are no crimes here,

                Assuming arguendo that this is true, so what? No serious scholar thinks that impeachment requires violation of a federal statute.

                1. And all “serious scholars” within this reference are raging liberals.
                  Criminalize the Crime-less they scream – Its A-Okay!!!
                  Who cares if you disagree! You’re not a raging liberal so you’re wrong.

              2. “Neither article of impeachment lists any federal statute that was violated.”

                Which would be meaningful, if being impeached required listing federal statutes that were violated. You’re thinking of indictments.

            2. He released a transcript that showed he asked the Ukraine to look into if the investigation of Burisma should resume, after Joe Biden got the prosecutor fired while the prosecutor was investigating that bunch of bad guys.

              There was no mention of any deal, or of investigating Joe Biden, or mentioning Hunter Biden.

              If THAT is your “smoking gun”, it was just firing blanks.

              1. There was no mention of any deal, or of investigating Joe Biden, or mentioning Hunter Biden.

                There was indeed the mention of a deal, and of investigating Joe Biden. Multiple times during the call, in fact. As well as at other times, such as at a press conference on October 3 (h/t Ramesh Ponnuru):

                “Q Mr. President, what exactly did you hope Zelensky would do about the Bidens after your phone call? Exactly.

                THE PRESIDENT: Well, I would think that, if they were honest about it, they’d start a major investigation into the Bidens. It’s a very simple answer.

                They should investigate the Bidens”

                1. You see, suggesting that the government of the Ukraine investigate the Bidens is doubleplusungood. Because there was no basis for Trump’s conspiracy theory.

                  If, on the other hand, he had a dossier full of a tissue of innuendos about the Bidens prepared by Michael Steele, he could have launched the full investigatory forces of the FBI against them (and presumably ask the Ukrainians to join in), and that would have been hunky-dory.

                  1. Whattaboutism like that shows you’ve got no answer.

                    1. Claims of “whataboutism” are the first refuge of a scoundrel who knows they’re demanding a double standard.

                    2. Whining about claims of whataboutism usually follows when someone points out some whataboutism, wherein the original whatabout-er had no real point to make as to the original point.

                      Hint: Most people learn by about age ten or so that other people doing wrong things doesn’t excuse doing wrong things. When your mom asks you if you stole a candy bar from the store, and you start telling her about how all your friends were stealing candy bars from the store, she shuts that right down. Most people learn from this experience.

                  2. “You see, suggesting that the government of the Ukraine investigate the Bidens is doubleplusungood”

                    Nobody, literally, is saying this, except for you.

                2. Are you attempting to claim that in July, Zelensky knew that Trump would say in October that he hoped that Biden would be investigated?

                  Because in the July phone call, there was no mention of any deal, or of investigating Biden, or mentioning Hunter Biden at all.

                  If you think the Ukraine has developed time travel, that’s one thing. But calling out Hunter Biden for getting a sinecure in October does not mean that a phone call in July in any way mentioned Hunter Biden or demands a deal. Of course, the October comments didn’t mention a deal, either…

                  1. Are you attempting to claim that in July, Zelensky knew that Trump would say in October that he hoped that Biden would be investigated?

                    Of course not. How could Zelensky know in July what Trump would say in October? I am attempting to claim, and successfully doing so in fact, that in July, Zelensky knew that Trump wanted Biden investigated.

                    We know that, because Trump said it to him right in the July call. And because Trump’s emissaries, including Trump’s personal lawyer, had been telling him that for months before that.

                    1. If Zelensky didn’t know in July what Trump was going to say in October, why did you try to claim that an October comment was proof of what Zelensky knew in July?

                      And, no, Trump didn’t say it in the July phone call. Otherwise, quote it. Even Vindman – the criminal leaker that started this all – admitted that there was neither such a request, nor any deal, in that phone call.

                      And again, no, no one had been telling Zelensky “for months” that Trump wanted Biden investigated. Trump denies it, Zelensky denies it, but oh! Hey! anonymous sources in the NYTs say someone once mentioned it.

                    2. Bringing quotes please. I can’t find DMN saying what your talking about.

                    3. If Zelensky didn’t know in July what Trump was going to say in October, why did you try to claim that an October comment was proof of what Zelensky knew in July?

                      I didn’t say that. Read more better.

                      And, no, Trump didn’t say it in the July phone call. Otherwise, quote it.

                      ” The other thing, There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you ·can look into it… It sounds horrible to me.”

                      Even Vindman – the criminal leaker that started this all –

                      Hey, a friendly warning: some joker hacked your computer and is posting retarded things under your account.

                      And again, no, no one had been telling Zelensky “for months” that Trump wanted Biden investigated. Trump denies it, Zelensky denies it,

                      Trump does not deny it. Trump admits it. Mulvaney admitted it. Giuliani admitted it. Sondland admitted it. Holmes admitted it.

                    4. DN, when asked for proof of a deal in Trump’s July phone call, you responded with a quote from an October comment. Again, unless you believe the Ukraine has time travel, it is not possible for that to have been true, and you were wrong to make the claim in the first place.

                      The quote from the phone call is about Biden’s stopping an investigation into a bunch of “bad people”: “Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved.”
                      That’s discussing Burisma, not Joe Biden.

                      As for your list of people that “admitted” Trump had demanded a deal for the aid, the fact is that you are lying. Trump did not admit it, nor did Zelensky. They all denied it.
                      Sondland admitted the idea – any mention of a deal – was entirely in his own head. Holmes agreed with that part – no one had ever told him there was a deal.
                      You are lying when say otherwise.

                      As for Vindman, I’m not sure if you are talking to a mirror again, but just in case you really are as ignorant as the rest of your posts suggest, Vindman (who testified that the transcript was accurate, and that he heard no mention of a deal, or of any criminal acts) was the one who, according to his testimony, shared the classified conversation to another person in the IC (probably Eric Ciaramella) who was not authorized to receive it. That’s a criminal leak of classified information.

                    5. DN, when asked for proof of a deal in Trump’s July phone call, you responded with a quote from an October comment.

                      I guess my injunction to read more better was ignored.

                      That’s discussing Burisma, not Joe Biden.

                      Weird how he mentioned the name “Biden” three times and “Burisma” zero times, then. And weird how he admitted several months later in response to a question about what he had wanted from the call that he said he wanted an investigation of the Bidens, not Burisma. It’s almost as if he wanted an investigation of the Bidens.

                      As for your list of people that “admitted” Trump had demanded a deal for the aid, the fact is that you are lying. Trump did not admit it, nor did Zelensky. They all denied it.

                      No; Trump admitted it. He then said “No quid pro quo,” but that’s just because he didn’t know what the words meant.

                      Sondland admitted the idea – any mention of a deal – was entirely in his own head. Holmes agreed with that part – no one had ever told him there was a deal.
                      You are lying when say otherwise.

                      You’ve never read any of their testimony. (Also, it’s unlikely you would’ve understood it, given your demonstrated reading comprehension problems.) You’re just repeating fake talking points you heard on Fox.

                      That’s a criminal leak of classified information.

                      I don’t know where you got the idea that the whistleblower wasn’t cleared for the information, given that you don’t even know who it was. I also don’t know where you got the idea that the information was classified, or even classifiable. (Information may not be classified to protect people from embarrassment or criminal liability.)

              2. Except that is a lie. The ukriane has been clear that the prosecutor was not looking into Burisma at that time. In reality, this prosecutor was protecting Burisma from an investigation by prosecutors from the uk and was refusing to allow a Ukrainian investigation and that was why Biden, in league with the IMF and all of the US’s NATO allies got this guy fired.

                1. People who hang around Trump get the idea that people with political power use it for their own personal financial gain.

                  For some reason.

                2. Biden demanded the prosecutor be fired in December 2015.
                  In February 2016, the prosecutor executed a search warrant against Burisma, seizing evidence against the company.
                  In February 2016, Burisma sent a letter to the US State Department, name-dropping Hunter Biden, and asking for US help in stopping the investigation. Burisma employees, including Hunter Biden, met with US State Department officials, including Secretary of State John Kerry.
                  In April 2016, Shokin was fired because US aid was being held up.

                  I’m sure that even you can understand that December 2015 came before February 2016, which came before April 2016.

                  1. and asking for US help in stopping the investigation.

                    Weird how you can’t read “I would like you to do us a favor, though” as a QPQ, but you can read something that doesn’t mention investigations as requesting help in stopping investigations.

                    1. Quid Pro Quo requires both a Quid and a Quo.
                      Asking for a favor does not qualify unless something is offered in return.

                      As for the letter, did you read it? The part where it asked for State Department help in overturning declarations that it was corrupt, and that the State Department should help with Burisma in presenting evidence to the contrary.

                      Also, I can’t help but notice that you aren’t disputing that there was an ongoing investigation into Burisma when Shokin was fired. Does this mean you’ve finally stopped disputing this plain fact?

                    2. As for the letter, did you read it? The part where it asked for State Department help in overturning declarations that it was corrupt, and that the State Department should help with Burisma in presenting evidence to the contrary.

                      Nope. This is the email (from the State Department) summarizing their request:

                      “Per our conversation, Karen Tramontano of Blue Star Strategies requested a meeting to discuss with [Under Secretary] Novelli [U.S. Government] remarks alleging Burisma (Ukrainian energy company) of corruption. She noted that two high profile U.S. citizens are affiliated with the company (including Hunter Biden as a board member). Tramontano would like to talk with U/S Novelli about getting a better understanding of how the U.S. came to the determination that the company is corrupt. According to Tramontano, there is no evidence of corruption, has been no hearing or process, and evidence to the contrary has not been considered. Would appreciate any background you may be able to provide on this issue and suggested TPs for U/S Novelli’s meeting.”

                      Note the absence of any mention of a request for help overturning anything or that the State Department should present evidence to the contrary. Of course, you might infer that this is what Burisma wanted, and that’s precisely the point. We don’t need Trump using the exact words, “I will only give Ukraine aid if Ukraine investigates Biden” to understand that Trump was making that demand.

            3. Seb, chill brother. Watch a movie, go to the mall, go buy a Slurpee. But chillax. You sound grumpy, like an old man waiting for his soup who discovers that in the meantime a homeless guy took a huge dump on his (the old man’s) shoes. Like all up in the shoelace eyelets. In other words, pretty damn cantankerous. So … chill.

              1. After Trump signed the $1.4 trillion spending bill I don’t care what happens. Liberalism has won the day!!

                1. Entropy always wins in the end. That’s nothing to cheer about.

          2. “The production of weak evidence (hearsay) when strong is available (i.e., the firsthand witnesses that Trump ordered not to testify) can only lead to the inference that the strong would have been adverse.” Interstate Circuit, Inc. v. U.S., 306 U.S. 208 (1939).

            1. I’m trying to decide which angle you’re pointing out, and I can’t.

              Are you trying to say that because Trump prevented the first hand testimony then the third hand testimony given should be interpreted damningly, because he could have refuted it if he could have?

              Or are you trying to say that because the House chose not to even try to compel the first hand testimony but instead only presented third hand testimony that it should largely be discarded, because the only inference that could lead to is that the first hand testimony wouldn’t have bolstered the House allegations?

              Genuinely can’t tell here, curious how others read it.

              1. I read it a few ways.
                1. Trump actively is hiding evidence (documents and witnesses) from Congress and from the American people. It is a reasonable inference to conclude he did this/is doing this because such evidence would be harmful. In my mind, similar to spoliation. You subpoena my documents and–while they are in my control–they are lost. Or destroyed. A judge will decide (or inform a jury, if it’s a jury trial) that the jury is free to make inferences adverse to my case, due to me acting in a way that kept that evidence from the court. A judge will give the instruction that, in fact, a jury can decide the case against me based solely on the fact that I was complicit in keeping that info from the court.
                2. It also a truism that strong secondhand or thirdhand evidence is much “better” (in terms of distinguishing truth from falsity) that weak firsthand information. I’m accused of robbing a bank. Your secondhand information that you overheard me calling my wife and bragging about robbing the bank is very powerful. Mr B’s firsthand evidence–that he saw me rob the bank, but he was not wearing his glasses, B is a different race than I am, it was dusk, B was 75 yards away at the time, B saw me for only 3 seconds, B had been drinking, etc etc.

                In other words, House members frothing at the mouth and sputtering about how awful it is to impeach without firsthand information is repulsive. Not only because the lack of firsthand info is 100% due to Trump’s actions, but also because firsthand info is not needed in any court in the land and because people are sent to prison or executed solely due to evidence that is entirely not firsthand. And for a political party that spent literally decades portraying itself as ‘Tough on Crime,’ this new approach is hard to swallow.

                1. Spoliation is destruction of evidence. Waiting on your appeals to be exhausted before complying with a subpoena can’t be reasonably construed as spoliation.

                  1. Spoliation is distinguishable from obstruction.

                    Enjoy the final year of last-gasp clingery, Mr. Bellmore.

                  2. Sigh. Once again, there are no appeals. You are either deliberately or carelessly mixing up (a) the subpoenas for Trump’s financial records, which Trump has indeed litigated in the courts and is appealing, and (b) subpoenas for documents and witnesses for the impeachment inquiry, which Trump has flat out blanketly refused to comply with. He has not asked a court to rule on them. He has, in fact, told courts that they have no authority to rule on them.

                    1. Did Schiff or Nadler? You remember, the guys actually responsibly for establishing a factual basis for their “impeachment”? What did Pelosi say? “We’re not going to wait until the courts decide.” And now here we are…waiting. It must cause some physical discomfort to be so hypocritical. Kind of like wearing underwear 2 sizes too small.

                    2. Well, to fix your ignorance, there IS an appeal out for a House subpoena against Donald McGahn. It’s currently stayed, and might be mooted as well.

                      I’m sure it just slipped your mind.

                2. “Trump actively is hiding evidence (documents and witnesses) from Congress and from the American people. It is a reasonable inference to conclude he did this/is doing this because such evidence would be harmful.”

                  Sigh.

                  So, when a police officer comes to your house without a search warrant, and asks to search it, do you ask “Do you have a search warrant?”. And if you do ask that, and refuse the police officer entrance, is it because you’re hiding evidence that you’ve committed a crime?

                  1. This is not a criminal trial. Trump is not at risk of being deprived of life, liberty or property. The Due Process Clause does not apply.

                    1. LMAO.
                      IIUC the poor capt is saying that Constitutional Rights don’t apply. He sounds just like Progressive Democrats’ KKK and Jim Crow arguing POC have no Due Process and should go straight to the lynching!

                    2. Yes, but executive privilege still does.

                    3. That wasn’t a due process comment. It was a question about common sense.

                    4. Hence he is under no obligation to respond to any subpoenas. Sorry Charlie.

                3. Your secondhand information that you overheard me calling my wife and bragging about robbing the bank is very powerful.

                  That is not secondhand information. You heard the defendant admit to the crime. Sounds pretty firsthand to me.

              2. I read it as irrational because captcrisis is mixing actors in a way that invalidates the comparison. In Interstate Circuit, the people producing the weak evidence and withholding the strong were the same people. That supports the inference that the strong evidence would have been adverse to the producer’s interests. In this scenario, however, the weak and strong evidence would come from different people – which supports no real inference about the evidence at all.

                1. You really think Trump had no control over Sondland and the others who did testify?

                  You can’t claim that the case is based on hearsay while refusing to produce the people with firsthand knowledge.

              3. “are you trying to say that because the House chose not to even try to compel the first hand testimony”

                You mean, say, by filing a lawsuit compelling the former White House Counsel to testify? Yeah, such a shame they didn’t do anything like that…

                1. The subpoena that is currently stayed by the courts?

                  That subpoena?

                  1. Mind explaining how “subpeona currently stayed by the court” equals “didn’t even try to compel the witness to testify”?

            2. This is not a civil conspiracy captcrisis. We’re dealing with 2 separate but equal branches of government. And we’re dealing with baseless allegations originating from an orchestrated and illegal “Whistleblower”/leaker complaint and Articles that are the product of a sham Star Chamber-like procedure. But putting aside those minor points, the corrupt Schiff never subpoenaed these so called called “strong” witnesses and that lump Nadler didn’t call any fact witnesses. Kind of hard to complain about the lack of evidence that was never sought in the first place. But let’s just presume wrongdoing and impeach right away for national security, right? And then do nothing. Save your nonsense. I doubt even Schiff believes his own lies.

              1. MKE slunk away from another thread with his tail between his legs when challenged to cite any statute that made the whistleblower complaint “illegal,” but he’s back to repeating that legally illiterate argument yet again.

                MKE is also mistaken on other facts. Schiff did in fact issue subpoenas for testimony and/or documents from (among numerous others) Mulvaney and Pompeo, that Trump ordered them to refuse to comply with.

                1. Is it better to respond to something asinine or just to ignore it? I guess I’ll respond by noting that David’s inability to grasp the arguments in our earlier exchange rendered pointless any further comment there. It’s hard to have any productive exchange of ideas with someone who believes a member of the intelligence community has a general first amendment right to disclose confidential/classified information. Or who may believe that there actually is an IG assigned jurisdiction to review the president’s conduct of foreign relations. Who knows what he believes? Maybe he believes in Santa. Whatever, at this point, all I can say is that he’s welcome to his belief.

                  1. So… I’ll take that as a, “No, I don’t know of any such statute.”

                    So, puzzlingly, MKE thinks things can be “illegal” even without a law forbidding them.

                    1. Wow. Maybe you really didn’t understand my comments? Now I almost feel sorry mocking you. But, just between you and me, I do confess I would pay to see you argue before a court that your meritless filing can’t be sanctioned because it’s only baseless.

                2. Well, the “whistleblower” did not report criminal activity, and furthermore, the IG that took the complaint had no jurisdiction to do so. The IC IG is restricted to matters that full under the authority of the DNI, and foreign policy discussions in the White House are not activities under the authority of the DNI.

                  Is that “illegal”? I don’t know. It’s certainly improper, and the so-called “whistleblower” complaint should be dismissed on that basis (and the two leakers of classified information punished for their crimes).

                  1. You are making category errors, treating the whistleblower complaint as if it were a complaint in a lawsuit. If a complaint in a lawsuit is filed in a court that lacks “jurisdiction,” or if the complaint otherwise fails to follow proper procedure, then the lawsuit will be “dismissed” and that’s the end of the matter.

                    But “dismissing” the whistleblower complaint has no effect; it’s just a report of suspected wrongdoing. The whistleblower’s complaint became irrelevant the minute that the underlying facts became known.

                    1. By filing a whistleblower complaint, it activates certain laws – such as protecting the person from punishment for their report.

                      If the report was not actually a whistleblower report, but instead a politically motivated leak of classified information to someone not authorized to receive it, well… that’s a different matter, then, isn’t it?

                    2. Your argument is that the President trying to make a deal with a foreign government to interfere in an American election is, or can be, classified information… You’d have to be awfully high on the Trump monarchy delusion to buy into that one.

                    3. That’s now how the law works. It doesn’t make value judgements about the motive of the whistleblower.

                      I think you can figure out why not – you are acting as an object lesson in why such a loophole would kill the law.

                    4. If the report was not actually a whistleblower report, but instead a politically motivated leak of classified information to someone not authorized to receive it, well… that’s a different matter, then, isn’t it?

                      No, in fact, it isn’t. The motive of the person reporting the conduct doesn’t matter.

                      “You didn’t call 911 on those bank robbers because you care about the law; you called 911 because you were mad at them for cutting you out of their plan. So, forget it; we’re not responding to the call.”

                      Also, no classified information was revealed to anyone without a clearance.

                    5. Rather amusing to read comments from you ignoramuses (Toranth excluded) trying to expound on the scope of the Intelligence Community Whistleblower Protection Act when you have zero understanding of the scope of the law; or, it appears, the law in general.

                    6. MKE does not appear to know (a) what the ICWPA says; or (b) that the ICWPA is not the only relevant statute protecting whistleblowers.

                      All the ICWPA does is provide that a whistleblower’s identity may be kept secret if he follows certain procedures. It does not purport to say that a whistleblower must follow those procedures.

                    7. That’s gonna leave a mark.

                    8. To be declared a whistleblower, the person reporting must meet certain criteria and follow a certain process. Otherwise, they do not qualify. Incidentally, it requires that the matter relate to “the administration or operations of an intelligence activity” but “does not include differences of opinions concerning public policy matters”.

                      The IC IG did not have the authority to qualify the report of non-criminal activity outside the IC as “whistleblowing” – only activities under the authority of the DNI. And the President’s foreign policy is not – cannot – be under the authority of the DNI.
                      If you think there are other statutes that would apply that would allow the IC IG to handle the complaint from this ‘anonymous source’ , please – list them! There are other statutes for the Federal government, indeed, and it possible that some of them may be in addition to this one.
                      But it is quite clear that you do not understand what you are talking about with regards to the IC IG’s report.

                    9. I’m afraid you’re wasting your time Toranth. I doubt James, David, and Sarcastr0 (who knows, maybe the same person?) are actually capable of understanding that the IC IG has no statutory jurisdiction to entertain whistleblower complaints against the president.

                    10. To be declared a whistleblower, the person reporting must meet certain criteria and follow a certain process. Otherwise, they do not qualify.

                      Yes. We all agree with that.¹ That’s not the error in MKE’s thinking. The error in his thinking is the next step. Let’s assume the person doesn’t qualify as a whistleblower: so what? That doesn’t mean that the whistleblower committed a crime. It does not mean that he did something “illegal.” It does not mean that the wrongdoing he reported didn’t happen. It does not mean that anyone has to ignore his report. The only thing it means is that this person isn’t entitled to protection under the ICWPA.

                      ¹Well, sort of; a whistleblower is anyone who reports wrongdoing, governmental or private. But assuming you meant that to be treated as a whistleblower by the government, one must follow those procedures, then yes.

                    11. We’ve been down this road before David. Are pretending not to understand or are you really this obtuse? Whether any crimes were committed in the filing of the “complaint” or the disclosure of classified info is an open question (IC employees/contractors aren’t free to disclose confidential/classified info as they see fit); but it is apparent that, notwithstanding such open questions, the “complaint” itself is not authorized by the ICWPA and its implementing rules. In other words, it’s illegal. (And did your really use a footnote? Shades of the illegal complaint, which of course wasn’t drafted by counsel because we all know counsel denied giving any input in an ABC interview)

                    12. but it is apparent that, notwithstanding such open questions, the “complaint” itself is not authorized by the ICWPA and its implementing rules. In other words, it’s illegal.

                      Those are indeed “other words.” They are not correct words, but they are other words. There are probably an infinite number of activities in the world that are “not authorized by the ICWPA,” that are nevertheless entirely legal.

                      Again: for something to be “illegal,” there must be a law forbidding it. You haven’t cited and can’t cite any such law.

                      Again, you don’t understand what the ICWPA does, most likely because you’ve never read the statute. It does not say, “A whistleblower must do this.” It simply provides one way that a whistleblower can get a report to Congress. Not the only way.

                    13. I’m sure there are many ways a gutless little IC leaker can improperly and/or illegally disclose confidential presidential communications and classified information. From what I understand, this particular “whistelblower”/leaker has had some experience with that. But the law simply does not provide any jurisdiction or authority for an IC IG to entertain complaints against the president, let alone the president in the conduct of his near plenary authority to conduct foreign relations. The IC IG is a creature of statute. The “whistleblower”/leaker has acted contrary to that statute. You seem particularly upset that I would call unauthorized action contrary to the terms of a statute as illegal. Tough. Buy a dictionary.

                    14. But the law simply does not provide any jurisdiction or authority for an IC IG to entertain complaints against the president,

                      Assuming arguendo that this is true, so what? “This isn’t my department” doesn’t carry the significance you think. A federal court has no jurisdiction to hear a case brought under state law where the amount in controversy is $74,000, but if I file such a case, all that happens is that the court won’t hear it. I haven’t done anything illegal by filing such a suit. And if the federal court does entertain the lawsuit, the court might have done something improper, but I haven’t.

                      let alone the president in the conduct of his near plenary authority to conduct foreign relations.

                      The president does not have such “near plenary authority,” but of course whether he does or doesn’t is irrelevant to the issues here.

                      The IC IG is a creature of statute. The “whistleblower”/leaker has acted contrary to that statute. You seem particularly upset that I would call unauthorized action contrary to the terms of a statute as illegal. Tough. Buy a dictionary.

                      Earn a law degree. He did nothing “contrary to” the statute. For about the twelfth time, the ICWPA simply does not say, as you mistakenly think, that whistleblowers must do X. It says that they may do X.

                    15. Your analogy is ridiculous and only serves to highlight your ignorance. So what if the law provides no jurisdiction for IC IG to entertain whistleblower complaints against the president? So what if the so-called whistleblower’s actions are not authorized by any statute? So what if the so-called whistleblower has improperly disclosed confidential presidential communications and/or classified info? IC employees simply do not have discretion to disclose confidential presidential communications and/or classified info as they see fit. There is a legal way and an illegal way; that is to say, a way not authorized by law or regulations. The so-called whistleblower, a recidivist leaker by some accounts, chose a way not authorized by law. And, as aside, its really quite amusing (or maybe sad) that you can’t accept that the president has near plenary authority to conduct foreign relations. Don’t know what to say, but, in addition to the dictionary that I recommended above, you might want to invest in a Constitutional Law for Dummies.

        2. They called every logical witness and every witness produced damning evidence against Trump.

          If that is the case, then you are failing to consider the implications:

          (1) Why should there be a need to call new witnesses in the Senate trial? All the evidence is out already. In public. Transcribed and videotaped. If what you say is true, then all the Senate need do is review the House evidence.
          So why are the Democrats so insistent they need to call more witnesses and subopena people like Bolton and Mulvaney?

          (2) This also undermines the whole argument that the Senate is not being “impartial.” Not only is all of the evidence out, but it has come out very publicly in hearing held by a governmental body. Senators read the papers and watch TV as much as you do. So they have already seen and heard it all, and thus far the majority are not impressed.

          This is very different from a criminal trial, where no one has heard prior evidence (except for the grand jury, which is generally kept secret, certainly at the federal level and in most states.)

          “Impartial” means that you review the evidence presented to you without bias and come to your own conclusion in the framework of the law. That is what has happened in this case — the evidence has been presented already. If you and I know about it, the Senators know about it. There is nothing “partial” about their saying, I am unimpressed.

          1. I agree, the Senate trial is stupid.

            1. There is something stupid in your post. Hint: it’s not a Senate trial.

        3. You mean like Sondland who said “I presume is was held up to get Zelensky to grant the favor”????……LOL!!!!

    3. Why? Honest question. Is it triggered by the fact that a President is impeached? Because that rule didn’t apply when Clinton was impeached. Is it triggered by the fact that you think Trump is guilty? Because the point of a trial is supposed to be to decide that. What is the actual justification for your proposed rule?

    4. “The Republican senators should have already demanded Trump drop out of the 2020 race…the fact they haven’t means their Senate trial will be nothing more than a sham.”

      Wouldn’t that show precisely the opposite? Having your mind made up that the person is guilty is just as bad as having your mind made up that the person is innocent. Worse, even.

    5. You’re funny. Like, Pelosi funny. The Senate should only do what the House demands, right? Hilarious.

  2. Everyone is being too clever by half.

    1. Well at least half of clever still gets you your CLE for the year.

      1. But Kristian H. mentioned 150% of clever, as opposed to your 50%. I guess everyone but you gets CLE for three years.

      2. FREE CLE! Now that is a bargain!

        1. Worth it at twice the price!

    2. I’d say that, in delaying transmission of the impeachment, Pelosi is being too clever by at least three quarters, perhaps more.

  3. The main problem with your effort to relieve Sen McConnell of the effort of pretending to hold a fair trial is that declaring the person acquitted without bothering to hold a trial doesn’t keep the House from simply re-impeaching under the same or slightly different wording in the articles of impeachment.

    1. If you trust the polls, and note how much support Potus has picked up since the beginning of the “hearings”, I suspect President Trump would welcome repetitious impeachment hearings in the House.

      1. Has he broken 40?

        I doubt there enough slack-jaws, bigots, and anti-social malcontents left to get him to 45 in any circumstance.

        1. According to 538, he’s at 44.6% right now, the highest he’s been since a couple months after he took office. And that’s after Silver “adjusts” most of the polls to lower Trump’s popularity.

          That’s high enough that, per Silver’s calculations, there’s at least a 5% probability that Trump is actually more popular than not.

          I’d guess he’ll break 45% soon, the graph isn’t showing any signs of leveling off yet.

          1. You’re banking on Trump to pull off another three-cushion trick shot at the Electoral College?

            Does four years of improvement — more diverse, less rural, less intolerant, less religious, more modern — in the American electorate make you more optimistic or less?

            1. Four years of solid economic growth, the lowest unemployment in a decade, solid wage gains, and more….

              1. The thing is, nothing that Mr. Trump has done is related to the things you list, and he’s been actively working against most of them.

          2. “According to 538, he’s at 44.6% right now, the highest he’s been since a couple months after he took office. ”

            And 50 percent favor impeachment, conviction, and removal, and another 3 or 4 % favored impeachment without removal.

    2. Go for it. The GOP-led House repealed Obamacare more than 50 times. The Democratic led House can impeach Trump 50 times. The only thing that will do is make them a laughingstock.

      1. Agreed, the GOP led house was a laughing stock for that.

      2. *sigh*
        By January 20th, 2017, the “GOP-led” House had passed about 60 bills that would have performed a modification of some sort of the ACA. The Senate passed, and Obama signed, about 35 of those. One more was vetoed by Obama.
        Of these bills, I see only three in the list that would have repealed the ACA in entirely, and two more that would have eliminated the individual mandate.

        That silly falsehood is something that should be stomped out every time it is brought up. If you want to criticize the GOP for their ACA behavior, it’d be appropriate to bring up the fact that the GOP couldn’t manage to decide on *anything* to do when they caught the car (had a majority in all both chambers plus the White House). THAT is worth laughing at them for… even if it doesn’t help with your example.

        But basing your example off a falsehood is not good.

        1. Apologies, you are correct. That’s what I get for basing my example off headlines from major news organizations. I’ll admit, I wasn’t paying close enough attention to the actual votes, and was reading the summaries.

          https://time.com/4712725/ahca-house-repeal-votes-obamacare/

      3. Agreed…would be politically crazy to impeach with no new information. On the other hand; after a Senate acquittal, I think it would be great to start issuing those subpoenas for all the witnesses and evidence that Trump/The White House has been hiding from Congress and the American people. If Bolton (et al) end up defending the president . . . great, we’ve learned something valuable. If those witnesses (and/or documents) end up showing more evidence of Trump’s guilt, then a second impeachment makes total sense.

        (If Trump loses in the election, then I’d suggest finishing the inquiry but not proceeding with impeachment–seems a bit unseemly to pursue political adversaries after she’s/he’s left office.)

        1. That’s a bit backwards. Impeach, lose the impeachment trial, THEN go back and investigate and subpoena so you can re-hash the impeachment…

          If this was a criminal trial, that would get shot down real fast. Of course, this isn’t, it’s an impeachment. Still, I’d have to wonder if the Judges would willingly grant subpoenas in such a situation.

          1. “Impeach, lose the impeachment trial, THEN go back and investigate and subpoena so you can re-hash the impeachment…”

            The Senate proceeding IS the impeachment trial. The House vote is akin to an indictment. Just because the grand jury decided to indict doesn’t mean that a conviction is assured, and it certainly doesn’t mean that you shouldn’t be considering evidence that wasn’t presented to the grand jury.

            1. The problem is that the House didn’t even bother asking the court to enforce the subpoena requests. If this were an actual case going to a judge; the charges would be dismissed for lack of evidence and most likely dismissed with prejudice attached.

              1. Not really.

                The standard to indict for a grand jury is probable cause, while for criminal conviction, it is guilty beyond a reasonable doubt.
                It often happens that the the prosecutor will withhold evidence from the grand jury and then present it at trial. Or new evidence comes up that helps the prosecution case at trial.

                That said, the Obstruction of Congress count is flawed for the reasons you state. Wanting to litigate a subpoena in the courts is not Obstruction.

                1. Trump didn’t want to litigate a subpoena in the courts. Trump argued that the courts have no authority to decide the matter, in fact.

                  1. Which is why the matter of the House subpoena that they DID issue is now being litigated.

                    Right.

                    1. That subpoena predates and had nothing to do with impeachment. Also, because it was issued to a third party, Trump doing nothing would have meant that the documents would have been produced; he had to try to quash the subpoena or his financial records that he’s so desperate to keep hidden would have been produced in short order.

                    2. The House sued to enforce the subpeona specifically for their impeachment inquiry. We know this, because Nadler said so when announcing the suit.

                      It also had zero, nothing at all, to do with his taxes, despite your repeated false claims to the contrary. THOSE issues are pending elsewhere.

              2. “If this were an actual case going to a judge; the charges would be dismissed for lack of evidence and most likely dismissed with prejudice attached.”

                True, if the judge was as partisan as the Senate leadership. Hint: if the judge in a trial publicly announced their plans to allow no witnesses to be called, there’d be a different judge hearing the case.

            2. I understand that the Senate proceeding is the impeachment trial. I was responding to this.

              “after a Senate acquittal, I think it would be great to start issuing those subpoenas for all the witnesses and evidence that Trump/The White House has been hiding from Congress and the American people”

              IE the concept of subpoenas AFTER the Senate trial.

              1. You were assuming a partisan acquittal, of course. Pretty much everybody is.

                The thing is, both sides are planning to go from the trial to the election. R’s are mad at the D’s in the House for pushing forward the impeachment just because he’s actually guilty. D’s will be mad at the R’s in the Senate, for acquitting when the defendant is obviously guilty. The key question is, will non-partisans be more mad at the D’s, for impeaching, or the R’s, for acquitting? Partisans of both types assume the unaligned will see things their way.

    3. Well, true, but neither would holding a full and fair trial, and then convicting. The Senate has no way of stopping the House from just re-impeaching Trump on the first Tuesday of every month.

      But at some point, if they keep impeaching him without securing any convictions, or even finding any charges that persuade more than half the country, it becomes a public farce, and they know that.

      1. I wonder if the “judge” over an impeachment trial could attach prejudice to an acquittal.

        1. Formally? I don’t think so, the legislature cannot bind its future self.

          As a practical matter, that effect is virtually inevitable.

        2. The Chief Justice is in charge. He probably couldn’t state “with prejudice”. However, he could probably demand a trial with only the barest and quickest of testimony. Even if Double Jeopardy doesn’t apply, he could limit testimony to only new information.

          1. Double Jeopardy applies to criminal prosecutions, expressly, which an impeachment trial is not. So no need to qualify if double jeopardy applies.

  4. That seemed like half an article. We hear about the Senate rules, but not about the House rules.

    The phrase “sole” suggests that the House, and not the Senate, decides when an impeachment is complete.

    So what do the House rules say about what constitutes impeachment ? They may – I speculate – talk about transmitting Articles to the Senate and appointing House Managers, but that may be stuff to be done after Impeachment is complete. It depends what the House rules say.

  5. As a practical matter, the Senate should just wait for the House to transmit the articles…I would go up to 60 days, barring extraordinary circumstances. At which point, new senate rules may be called for

    As a Constitutional matter, impeachment has occurred. A vote has taken place. The votes have been recorded and tallied. There are no take backs. Congressmen and woman cannot “change their votes” since the articles haven’t been transmitted…the vote is done and over.

    An impeachment “Sword of Damocles” should not be allowed to stand, especially not past the current Congress. Asking one House of Representatives to impeach, then waiting for a politically better Senate (after the elections) to actually try the case is flawed. Others bills passed by the House die if not picked up by the Senate before the next swearing in. This should be no different.

    1. You seem to have forgotten the Garland rule, clinger.

      1. Except that comparison makes absolutely no fucking sense because impeachment would be decided by choosing not to elect Trump for a second term, not to elect him and then have him stand trial and be convicted by a D Senate. And in what world will Trump win but Rs will lose the Senate and House?

        1. Why do you assume the House would wait until replacement of Republicans in the Senate?

          Perhaps the House would merely await a reasonable position from Senate Republicans on a trial by Senate?

          1. “Why do you assume the House would wait until replacement of Republicans in the Senate?
            Perhaps the House would merely await a reasonable position from Senate Republicans on a trial by Senate?”

            That’s two ways of saying the same thing.

          2. You show me the universe where Senate Republicans actually let this phishing expedition continue to a trial and I’ll show you the universe where you have self awareness.

      2. Poor RAK,
        The so-called Garland rule is a Senate rule over a matter that is Senate only. The House has no Constitutional authority over confirmation.

        Not to mention that the House has no Constitutional control over the impeachment trial; the Constitution is clear that the Senate has sole power over impeachment trial.

      3. You think that’s an actual rule? Cute.

        Think about Amy Coney Barrett, Supreme Court Justice, when the notorius RBG leaves the court.

      4. You seem to be ignorant of history. There is no “Garland rule”, nor was it the first time the Senate decided to do that. Indeed the first party to do it was the Democratic Party – and they did it first (it wasn’t the last time they did it either) IIRC, to the Whig Party – the Republican Party didn’t even exist yet at that time.

  6. Why should the House act promptly? Why can’t they just hold onto the articles indefinitely?

    Isn’t this just like the Senate failing to act on a judicial nomination?

    1. Hmmm…interesting. I had not thought of it in that way. You may have changed my mind on this issue. Nice quodlibet.

      1. Technically, I’d say it’s more like the Senate voting to confirm a judicial nomination, and then the Senate leadership refusing to officially notify the executive that their nominee had been confirmed.

        They did, after all, hold a vote. That’s acting on the matter.

      2. Thanks! A rare compliment.

    2. No, for at least the following reasons.
      1. the House has no part in that process, it rests solely in the Senate. As such the Senate can handle its internal process.
      2. A nomination doesn’t start with the Senate, it is delivered to them.

      The first one should be fairly obvious. The sole actors and approving lies in the Senate. Further, nothing actually mandates the Senate give consent. Particularly in today’s society we should understand that absent active consent, consent doesn’t exist.

      The second may be a bit more nuanced. Here the distinction is that the Senate isn’t the starting entity. Taking no action does not constitute the beginning of a process. Conversely the House initiated their process and is not “finishing” it (at time of this writing). Once you initiate the process you are obligated to finish it one way or the other. The Senate not taking up consideration of a nominee is not initiating a process and you can’t be obliged to finish what hasn’t started.

      Now had they started the process, voted to confirm, but never finished (whatever form that takes such as a formal notice sent to the POTUS), then the comparison would be spot on. Another way to make the comparison stick would be if the DoJ submitted a recommendation to The House that, having convicted the POTUS of a crime they believed is a “high crime”, they think he should be impeached and the House just doesn’t do anything, or even says they won’t do anything – perhaps not until after an election.

  7. Why should the House act promptly? Why can’t they just hold onto the articles indefinitely?

    No reason at all. The question is – what are the legal consequences of failing to submit Articles of Impeachment to the Senate ? Has the President been impeached or not, if no Articles are submitted ? As Josh Blackman suggests, it seems likely that we should look to the House’s rules on the question (rather than to the opinion of the Senate, or to the opinion of the House Speaker.)

    Isn’t this just like the Senate failing to act on a judicial nomination?

    Not really. A closer analogy might be if the Senate were to vote to confirm a judge, but failed to advise the President formally of the confirmation. As with the impeachment vote, the President can find out about a confirmation vote without being formally advised of it. So is such non-notified consent ,”consent” for constitutional purposes ? Presumably, we should start with Senate rules. Do they specify what constitutes consent ?

    Of course we have the Marbury v Madison precedent, where SCOTUS concluded that the appointment of a judge was complete on the President’s signature of his commission, and did not require delivery. Despite the (then) President’s contrary opinion.

    So there seems to be some precedent for the courts to opine on whether House, Senate or President has or has not completed their task. Which implies, perhaps, that there are no mulligans – if the House has impeached the President under their rules, they’re done and the Senate can get on with the trial, delivery of Articles or no.

    1. The enrolled bill doctrine runs the other way, though: There the courts take the transmittal as the best evidence that a bill has been passed, and actively refuse to look at any contrary evidence concerning the conduct of the votes.

      OTOH, it’s not like Pelosi is actively denying that Trump has been impeached. She’s just refusing to “transmit” the impeachment, or appoint managers.

      As I see it, if the Senate amends their rules appropriately, they can proceed to have a trial, or a vote to dismiss the charges, because all the constitutional requirements have been fulfilled on the House’s end of things. And the Supreme court will undoubtedly refuse to rule otherwise.

      But it’s going to take some time before McConnell can manage that, as he is likely at present to suffer defections on rules votes; Trump has too many bad enemies among the Senate Republican caucus, and a rules vote is just the kind of thing they would think they can get away with screwing Trump over on.

      Eventually, if Pelosi sits on the impeachment long enough, that’s likely to change. But I think she’s got at least until mid January before the Senate could plausibly act without her cooperation.

      1. I disagree that there are enough votes among the Senate Gadfly Caucus to stop that rule change, Brett. Even if Romney and Murkowski decide they want to meddle, Collins knows that she’s doomed if she crosses the base on this one, and there are no other likely candidates for sabotage in the Republican Senate majority. I suspect that Romney will avoid visibly losing in his effort and refrain, and Murkowski won’t risk permanently alienating the base in a futile cause.

      2. Also, don’t forget that Pelosi’s actions are effectively an insult to the Senate. She is denying them a historic and very important procedure in an unprecedented move. Her actions put herself up above the entire chamber of Congress by refusing to act on the clearly expressed vote. Anyone who puts high stock in the rules would be offended by the sheer gall. Indeed, many people already are up in arms over a few days delay. If this goes on long term, a rule change to get on with it will have enough votes.

        1. ” Anyone who puts high stock in the rules would be offended by the sheer gall.”

          Nah. R’s are offended by Nancy’s sheer gall. D’s are offended by Mitch’s. Non-partisans aren’t impressed with either of them.

      3. “As I see it, if the Senate amends their rules appropriately, they can proceed to have a trial, or a vote to dismiss the charges”

        Which Trump fans will like, presumably. But how about non-partisan voters? Holding a trial without the participation of either party seems… wasteful. It leaves Trump accused, but without an opportunity to rebut the accusation(s). His fans might eat this up, but they’re less than 50% of the electorate. If you leave the impression that you cheated so your side could win, that doesn’t translate to re-election, unless the D’s nominate Hillary again, or something equally befuddled.

    2. What you’re talking about is merely a “ministerial act”, a formality on a fair accompl. Transmitting articles to the Senate is anything but — impeachment is just a prelude to the dispositive action of conviction/acquittal.

    3. “The question is – what are the legal consequences of failing to submit Articles of Impeachment to the Senate ?”

      The President won’t be removed from office. The same answer you get to “what are the legal consequences of delivering the articles of impeachment to the Senate.

      Neither side is concerned at all with the legal consequences. Both sides are concerned with how this will play in the 2020 elections. It could wind up with Trump being reelected. It could wind up with a D being elected, and a D majority in the Senate. It’s a cliffhanger. Stay tuned! (Partisans for both sides are absolutely positive it will work out the way they prefer.)

  8. My question goes the other way – can the impeachment carry over indefinitely? For example, if in 2020 the Democrats take the Senate, but lose enough of the House to no longer have support for an impeachment, could this week’s impeachment suddenly be “transmitted” to the Senate in January 2021?

    I mean, if that works, one party might be able to “launch” the impeachment right before the new Senate is sworn in, allowing the the original to actually lose the House entirely but still “win” if they take the Senate.

    1. That would be extremely entertaining. The Babylon Bee might finally be outdone.

    2. As a matter of history, Bill Clinton was impeached in one session of the House, and the trial conducted by the new Senate after the election. But the impeachment was promptly transmitted, of course.

      You could make a case that, if they didn’t transmit it before the current session of the House ends, the impeachment dies. But as long as they transmitted it during the lame duck session, precedent is on their side.

      1. As a matter of history, Clinton’s impeachment was dead on arrival, too, because public sentiment at that time was against removal. Mr. Trump does not have that particular advantage, except among the 53 people who matter.

        If they offer a sham trial, it will cost them the Senate. If they offer a reasonably fair one, but fail to convict on a party line vote, that might cost them the Senate, too… they need to offer a reasonably fair trial that produces some hook that they can acquit on, that the non-partisan voters can buy into.
        OR, they can toss Trump out on his lazy derierre and try to get President Pence re-elected.

        1. Actually, recent polls have ‘No conviction’ by 3 to 5 points for most polls. There are a few outliers that Leftists are trying to hype, like the Politico online poll, which gave ‘Yes, convict’ by 8 points!, but sane people understand that that is a poor poll that should be ignored.

          Clinton, at the time of his Senate trial, was polling ‘No conviction’ by about +10, down from +15 shortly before. That’s 55%-60%.
          Incidentally, 75% to 85% of people thought that Clinton was guilty of the various accusations against him (lying, perjury, hiding gifts and false hiring, etc) but only 60% of people believe that Trump did something wrong, unethical, or illegal in his interactions with the Ukraine.

  9. Relax, folks, this dumpster fire is out. We got a new one coming up.

  10. I’m a little confused as to Pelosi’s reasoning. She’s not going to ‘give’ the Articles of Impeachment, which everybody already has a copy of, to the Senate because they’re going to settle things based upon majority rule rather than a ‘bipartisan solution’ even though she just got finished impeaching Trump in the House based on majority rules rather than bipartisanship with the Republicans who if I’m not mistaken all or almost all voted against impeachment? Is anybody going to pretend to buy this? I’m looking at you Prof Somin…

    1. All the Republicans voted against it, and they even lost 3 Democrats. So it was actually slightly worse than a straight party line vote.

      1. Labeling Rep. Van Drew a Democrat is sketchy.

        Ignoring Rep. Amash is worse.

        Carry on, clingers.

        1. Van Drew was still a Democrat when he cast the vote. Amash hasn’t been a Republican for months.

          You can’t quibble it away: Pelosi couldn’t even persuade all of her own caucus this was a good idea.

          1. Enjoy your quibbling. For another eleven months. After that, replacement and reckoning.

            1. I want the drugs you take. Totally disconnects one from reality.

              My main concern about when Trump gets re-elected is the even more extreme violence it will unleash from the deranged Left.

              But maybe, hopefully, what that happens all you Fascists will make good on your promises to move to Venezuela or such.

          2. Who cares—Santa Trump has given us Christmas in December with $1.4 trillion in gifts for all the good little boys and girls!! So only Hunter Biden is left out!! Thank you Santa Trump!!

    2. The thing about bipartisanship is that you can’t get it if one of the parties is dead-set against it. You can see the House vote as D’s partisanship (because they all almost all voted to impeach) or as R’s partisanship (because they all voted not to impeach*)

      *True on a technicality, because Amash left the party prior to voting to impeach.

      I haven’t yet heard a compelling-to-me reason why the articles should have been voted against. Trump did do the things the articles say he did. The argument that doing those things shouldn’t or doesn’t necessitate removal is a topic for the Senate, in deciding whether or not to convict and remove..

  11. Grossi Pelosi doesn’t want her sham articles of impeachment based upon absolutely no evidence to ever see the light of day. Her line is going to be “the nasty republicans in the Senate will never give us a ‘fair’ trial (read – one which is also a sham like the impeachment process) so we are just going to hide these articles of impeachment over here and pretend like this never happened…”

    I think the operational question is now not what to do with the articles of impeachment. We all know that those were just the product of a joke witch trial. But what to do with the democrats that are trying to unseat a duly, lawfully elected president in a coup. If the machinery of government won’t do something, then we will probably have to resort to People’s Tribunals. But something must be done and soon.

    1. I thought you were making your usual idiotic partisan rant. But then I saw the clever way you used wordplay with Grossi + Pelosi. What a harsh burn! Man, that totally changed my mind and now I find your post persuasive. Nicely played. Nicely played indeed.

      1. Did you miss If the machinery of government won’t do something, then we will probably have to resort to People’s Tribunals?

        Dude’s one of those ‘lets kill the Democrats’ Internet Tough Guys.

        1. Sad, blustering, disaffected culture war casualties are among my favorite faux libertarians.

        2. As opposed to Progressive Democrat Representatives calling for Trump to be hanged?

          1. Which did not happen, Flame. Don’t be a partisan tool and be a bit skeptical of your own side’s propaganda BS.

            The quote “Even if [McConnell] doesn’t come around to committing to a fair trial, keep those articles here; he has told you what he’s going to do, it’s almost like, ‘Let’s give [Trump] a fair trial and hang him.’ I mean, it’s the reverse of that.”

            Not calling for anything. About McConnell and Trump, and an analogy about a fair trial, not about lynching.

            Do better.

            1. While I agree with you in this case, I find it amusing you are defending this, while still bringing up the claim that Trump “confessed to sexual assault” in other places – which is just as obviously not the case.

              1. Unwanted pussy grabbing fan, eh?

              2. “still bringing up the claim that Trump ‘confessed to sexual assault’”

                Just because he’s on tape confessing to it, is not reason to persist in the claim that he’s ever confessed to it, I guess.

                1. Except that no such thing exists.
                  Trump is on tape talking about how he likes groupies, as opposed to the lady he had been previously discussing that turned him down. He said he liked them because they allowed him to perform a wide range of sexual acts. Note that the words used clearly indicate that he likes that they give consent, in direct contrast to the first lady, that did not give consent.

                  And I’m glad you both chose to prove my point that every time you argue about a Leftist being hyperbolic, or clearly making analogies, you don’t actually believe your own words, you are just doing the tribal defense song and dance.
                  I mean, obviously “lynching” is just an analogy, but “let” clearly means “sexual assault”.

                  But hey, never let the truth stop you from repeating your lies. You’d never be able to say anything if you did.

  12. I think the House needs to accept that it is not its role to negotiate with the Senate on how the Senate conducts trials. It should prepare to present its case if, when, and how the Senate wants to hear it.

    Yes, the Senate should conduct a fair trial and hear from witnesses. But this is for the Senate to decide, not for outside parties to negotiate with it about.

  13. And to the extent the House attempts to hold up the Articles in a misguided negotiating ploy, it can be accused of having played politics and of being reluctant to present evidence because it has no evidence to present in the first place.

    The House must do its job and leave it for the Senate to do its.

  14. Wait. So, is Prof. Blackman saying that every historic impeachment headline written on December 18 and thereafter, in every publication from mainstream to fringe, was wrong? And every tweet made from left to right? Because Trump was not necessarily impeached, after all?

    1. Not yet, anyway. But not EVERY tweet… there were quite a few Trump fans adancing this notion in recent days.

  15. But what about the Senate? The Senate may argue that the appointment of the managers, and the transmission of the articles are mere formalities without constitutional significance. (A professor on the constitutional law list-serve drew an analogy between these ministerial tasks and the formal delivery of Willam Marbury’s commission.) … But a precursor to that trial is the establishment of an “impeachment,” which the House gets to define. I have doubts about whether such a Senate rule would be constitutional.

    Suppose the following:

    The Senate and the House take diametrically opposing views on what the constitution requires/allows here in terms of the transition of impeachment from the House to the Senate.

    Both refuse to budge from their starting positions.

    SCOTUS refuses to take the case on “political question” grounds.

    Now what?

    1. “Now what?”

      We have an election next November to decide if Trump has three months or so notice to leave.

      Or hell, maybe we get a chance to try out XXV.

  16. Ok, you’ve convinced me that there’s a possibility that the Senate could proceed without the formal delivery.

    You’ve missed the broader point, though.

    You’ve not given any reason why they -should-.

    What possible reason could the Senate have for proceeding with a trial? They don’t want to hold one anyway, particularly on such ridiculous Articles. I’m thinking Pelosi holding on to them is making McConnell happier than anything else has recently. “You don’t deliver means I don’t have to waste the Senate’s time on this.”

    1. I think it’s clear that McConnell and a number of the Senators would rather not deal with this, or if they must, end it as quickly as possible.

      Trump, OTOH, wants a full blown trial with witnesses, so that he can clear his name in the most straightforward way: By convicting Biden. If Biden was laundering bribes by way of his son, or something of that nature, then demanding an investigation was obviously appropriate. Demonstrating that the “whistleblower” affair was a put up job on the part of the Democrats wouldn’t hurt Trump, either.

      All things being equal, I suppose the Republican Senate would be open to this. But all things aren’t equal, too many members of the Senate, on both sides of the aisle, are every bit as dirty as Biden. A first strike against Biden risks a retaliatory strike, leading to mutually assured destruction.

      So Trump isn’t going to get his long trial. He’ll have to convict Biden without the Senate’s help.

      1. ” If Biden was laundering bribes by way of his son, or something of that nature, then demanding an investigation was obviously appropriate.”

        Except… Where was the effort to find evidence in THIS country of such wrongdoing, using THIS country’s law-enforcement apparatus? Where are the actions of Biden motivated by the influence purchased by putting his son on the board of a foreign business?

  17. OK, before we discuss the highly triggering subject of impeachment, suppose you find out you’ve been sued in small claims court (make it in Washington, D. C, for this example), but when you ask the judge when the trial will be held, you’re told that it’s up to the plaintiff to decide whether he wants to put the case on the docket, and only then – if it happens – will the court’s rules allow it to set a trial date.

    But what about a rule higher than the court’s rules – the Constitution? We know from the Ninth Amendment that the people retain certain rights not specifically spelled out in the Constitution. We know that Magna Carta required that justice be administered without “delay,” and that this requirement was repeated in several state constitutions at the time of the Bill of Rights. So the right not to have justice delayed would seem to be one of the retained rights of the people (over and above the speedy-trial guarantee in criminal cases, per the Sixth Amendment).

    Now I’ll leave it to the subtle minds of other people to explain why impeachment has more flexible rules than are permitted for a small claims court.

    1. Because impeachment is not a criminal or civil process.

      It is simply a removal from office.

      1. Not quite.

        Each of the articles of impeachment says Pres. Trump “warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

        So if you think he should be perpetually rendered ineligible for federal office, OK, but you can’t say it’s “simply a removal from office.”

        This maximum punishment is an option in every impeachment upon conviction, and has in three cases, I think, been imposed (Humphreys, Archbald, Porteous).

        But it doesn’t have the constitutional protections of a trial in small-claims court?

        1. “But it doesn’t have the constitutional protections of a trial in small-claims court?”

          The rules of small-claims court don’t come from the Constitution. They come from the legislature that created it, and the state supreme court which supervises it.

          Criminal courts have a lot of Constitutional protections. Not so much with civil courts. In FEDERAL civil court, if you’re arguing over more than $20, then plaintiff can demand a jury trial. In SMALL-CLAIMS court, you don’t even have that one. Small- claims trials are bench trials.

      2. I see this claim that it isn’t about crimes, but nobody ever justifies it with the constitution which specifically states “treason, bribery, high crimes or misdemeanors”. There is no “or political reasons” listed.

        Treason is a crime, a federal one. Bribery is a crime, a federal one. The other two times allow for state crimes such as murder. Remember that the constitution left all but a handful of crimes to the states. Thus it specified two federal crimes, and then let the states handle the rest and the congress can then decide if those crimes rise to the level of bribery and treason in justifying removal from office.

        It *should* be a criminal process. Either by letting the jurisdiction of the controlling statute convict or by trying a federal crime in congress. All of these “but this isn’t a criminal case” are demonstrating why it should be. Once you let the “prosecutor” decide what is “illegal” at their whim, and decide you don’t have any rights to oppose them, you have authoritarianism.

        You can bet your arse that if any one of those democrats were facing an impeachment like this they’d be insisting on it being done using criminal justice protections and rules. These House Democrats are repeating what King George was doing, which led directly to the revolution. In fact that process was specifically referenced. It isn’t better or right because it is a group of Democrats rather than a single monarch.

        Regardless of ones opinions on Trump or the House Democrats, the constitution specifically lists crimes as the grounds for impeachment, not “political” reasons. Thus, in a proper impeachment you have someone accused of a crime and they should be entitled to all the legal protections, including presumption of innocence, as anyone else accused of a crime.

        And yes I am aware the House articles do not accuse the POTUS of a crime. But either they should do so or they should not exist.

        1. “Regardless of ones opinions on Trump or the House Democrats, the constitution specifically lists crimes as the grounds for impeachment, not “political” reasons.”

          The Constitution grants “sole power” of impeachment to the House. This means that the House determines what is, and what is not, an impeachable offense. This means that (surprise!) all three times the power has been used, it has been for “political reasons”.

          You’re free to insist that it shouldn’t be so. But, if you want that to be the Constitutional text, you’re going to have to amend that part into the Constitution.
          (While you’re doing that, I suggest that you also might need some kind of enforcement mechanism… I leave what that mechanism is, and how it might work, as a project for you.)

        2. ” in a proper impeachment you have someone accused of a crime and they should be entitled to all the legal protections”

          You also have this wrong. Impeachment is a necessary step to accusing the President of a crime. Once removed from the Presidency, the former President can be charged with a crime just like anybody else, and if charged, the ordinary procedures of criminal court apply, including all the protections our criminal court system offers. Impeachment is, however, not criminal court, and an impeachment trial is not a criminal proceeding.

    2. “suppose you find out you’ve been sued in small claims court (make it in Washington, D. C, for this example), but when you ask the judge when the trial will be held, you’re told that it’s up to the plaintiff to decide whether he wants to put the case on the docket, and only then – if it happens – will the court’s rules allow it to set a trial date.”

      That’s pretty much how it works. There isn’t a lawsuit until the plaintiff actually goes down to the courthouse and files the paperwork. If they decide to rush and do it right away, you get a trial right away. If they decide to take their time, and get the media to report on your potential lawsuit hoping other witnesses will pop up, or more evidence will be found, they get to do that, too.

      When you try to say “this person says they want to sue me. Let’s go ahead and hold the trial now, without their input” to the clerk of the court, they probably won’t laugh directly in your face… but as soon as you leave the clerk’s office, you WILL be the subject of some guffaws.

  18. Im just shocked to find out Trump hasnt been impeached. Thats really amazing somebody should alert the media.

  19. Saying that Pelosi can halt impeachment from moving forward by simply not transmitting the articles of impeachment to the Senate is saying that the Speaker of the House can stop any legislation she doesn’t like and provides her an effective veto power that only the President has. This is clearly not a power that the Speaker has. The House has voted and it’s job is done in terms of their responsibility for impeachment. It now falls under Senate rules which the Senate can adjust as they see fit.

    1. “Saying that Pelosi can halt impeachment from moving forward by simply not transmitting the articles of impeachment to the Senate is saying that the Speaker of the House can stop any legislation she doesn’t like and provides her an effective veto power that only the President has.”

      Er, except if the caucus doesn’t back her, she won’t be Speaker of the House any more.

      Back when the R’s were running the House, they had a rule… no legislation would get a floor vote unless a majority of the majority caucus supported it.

  20. “the President is not impeached until the House says he is impeached.”

    The House, and everybody else, has been saying he is impeached for the past day and a half. They’d look pretty dumb if they tried to argue that the wasn’t impeached.

    When the Senate begins to find the lack articles inconvenient, they should simply deem them “transmitted” and proceed however they please.

    1. “When the Senate begins to find the lack articles inconvenient, they should simply deem them “transmitted” and proceed however they please.”

      Mitch said yesterday he didn’t care if there was ever a trial. I don’t really believe him but there is no need to be in a hurry.

      1. Donnie wants a trial where his allies ask all he questions, so he can be “exonerated”. Of course, no matter what actually happens in the trial, he’ll be tweeting about how exonerated he was.

  21. Josh, no point in getting too many hypotheticals wadded up in the butt crack until some definitions are cleared up.

    What does ‘transmit’ mean. Surely there is some defined process within the existing senate/house rules for impeachment, as well as how transmit is considered a daily legislative formal process.

    Give us the complete text of the decades old impeachment rules, we can cntl-f to find the word ‘transmit’ and there you go.

  22. I doubt Sen. McConnell is eager to begin a trial, if only because he likely doubts he can keep a half-dozen or so Republican senators in his partisan parade with respect to procedural issues.

    Most Americans — including a majority of Republicans — want Pres. Trump’s senior aides to testify. I doubt Sen. McConnell, Pres. Trump, or other Republican insiders concur, in part because they recognize the dangers for Pres. Trump that would be precipitated by such evidence. A Republican senator — Collins, perhaps, or Gardner; Romney or Alexander; Sasse or McSally; Ernst or Murkowski — could readily justify a procedural vote to solicit testimony by pointing toward polling and reason.

    I expect Sen. McConnell to turtle up.

  23. Someone please explain to me why POTUS can’t invoke Article II, Section 3 and hold the House in session until it either repeals the Articles of Impeachment or submits them to the Senate.

    My blog post:

    http://www.ibleedcrimsonred.com/2019/12/president-trump-can-force-house-to.html

    1. He obviously can. Why does he want to further piss off the Democrats, while also pissing off the House Republicans?

    2. Let’s see. Suppose he does exactly that. And the result would be different from the present case because…

      When the House puts into all the future appropriations bills that no government funds are to be used to transport the President to anywhere that isn’t Washington DC, or to provide Secret Service protective details to the President’s family anywhere that isn’t Washington, DC… he can revel in triumph! … in Washington DC.

  24. Someone please explain to me why POTUS can’t invoke Article II, Section 3 and hold the House in session until it either repeals the Articles of Impeachment or submits them to the Senate.

    Quote from my blog post:

    President Trump doesn’t have to put up with this. He can invoke his Article II, Section 3 powers and force either or both houses of Congress to convene, and then let them adjourn after they have addressed his concern.

    Article II, Section 3:

    “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

    All the President needs to do is cite the “extraordinary Occasion” of his ultra-partisan, unfair, rushed impeachment. He can further cite the House’s extraordinary cowardice in failing to submit its Articles of Impeachment to the Senate for its Constitutionally required examination and trial. He can then invoke his Article II, Section 3 power and command the House to convene. He can then refuse to allow the House to adjourn until it either repeals the Articles of Impeachment or submits them to the Senate.

    Whether or not he convenes the Senate is up to his sole discretion, as Article II, Section 3 grants him the power to “convene both Houses, or either of them.”

    If the House refuses to convene, the President could then submit the dispute to the U.S. Supreme Court. He would be granted cert because he only needs four members to agree to hear the case, and he would assuredly get at least a 5-4 decision that forces Speaker Pelosi to do her damned job.

    1. Hmm, and interesting thought, but even if the President can “convene” the House/Senate, can he force them to do anything – even attend?
      It might prevent them from recessing, but is there any basis for the President to force anything else out of the legislative branch?

      1. Covening a session has specific meaning. Once convened they would have to follow the rules for the session. If the session is called for a specific purpose they would have to take it into “consideration” (which is different from the rest of us using that phrase ????). They would be formally bound by their special session rules.

        I make no argument that it is a good idea, just trying to answer the question itself.

      2. the point of this would be to prevent any of the Reps from going home for Christmas; they’d have to stay in Washington. This does absolutely nothing actually make them do anything. They’d just be sitting around the Capitol, looking for ways to drop a tit-for -tat response. They actually have one… all appropriations must originate in the House. So every appropriation would have a boilerplate page in it that denies authorization to use any appropriation to take Trump out of Washington. No more weekending at Mar-a-Lago, no more traveling to rallies to be with his fans.

        Which do you think would be more bothered by having to stay in Washington?

  25. There’s a simple solution to resolve this issue – McConnell should tell Pelosi that she has until _______ (pick a date) to formally transmit the House’s articles of impeachment and the names of their impeachment managers to the Senate or else he will schedule the trial and the vote on impeachment for the week of July 13th. That’s right before the Senate’s normal adjournment in August which would enable them to carry out their regular business. It’s also the week of the Democratic National Convention which means that every Democratic Senator running for reelection this year would have to decide whether to play an active role in the impeachment of Trump (as the Democratic base demands) or get a chance to boost their campaign with a prime speaking spot at a nationally televised event. It also means that the news coverage will focus as much (probably more) on the impeachment trial which would undercut the normal “bounce” that the Democratic nominee would normally receive from their convention.

    1. “McConnell should tell Pelosi that she has until _______ (pick a date) to formally transmit the House’s articles of impeachment and the names of their impeachment managers to the Senate or else he will schedule the trial and the vote on impeachment for the week of July 13th.”

      At which point Pelosi schedules a vote on articles of impeachment for July 20th. Wonder if they’ll pass? The D’s will be on national TV, criticizing the “trial” in the Senate that’s being run without them, and then right after, pow! There are some articles of impeachment for the the Senate to deal with.

  26. “A professor on the constitutional law list-serve drew an analogy between these ministerial tasks and the formal delivery of Willam Marbury’s commission.”. this makes no sense. Marbury was denied his judgeship because the commision documents were signed but not filed.

    1. ” this makes no sense. Marbury was denied his judgeship because the commision documents were signed but not filed.”

      And, in parallel, Trump is denied his acquittal because the articles of impeachment were passed but not delivered to the Senate. He’ll start telling people he wasn’t really impeached, which will fool no one, because everyone knows what he was impeached for (for R’s, he was impeached because of partisan chicanery, for D’s, because he actually did what the articles say he did, and for non-partisans actually paying attention because he tried to get a foreign government to inject itself into our election. Trump can spin it all he wants (which will continue to be a lot of WITCH HUNTS and COUPS on twitter) but none of it is official.

  27. OMG political theater ad absurdium. What’s next?

    a) The Senate orders Capital Security to bring the impeachment managers to the floor of the Senate in chains.

    b) The Senate barricades its doors so that the articles can not be physically delivered now or in the future.

    We look more like a banana republic every day.

    1. Mitch doesn’t want to have a trial. But telling him he CAN’T have a trial is somehow worse than telling him he has to have one.

      1. I disagree. Mitch would ideally like a 10 minute trial.
        1) Call trial to order
        2) Call for a vote
        3) Declare the President acquitted
        4) Adjourn

        But that’s not real. All the politicians on both sides want the cameras to be pointed at them for as long as possible. That is what the Pelosi delay move is really about. As long as she holds out, the cameras stay focused on her.

  28. Why should the House act promptly? Why can’t they just hold onto the articles indefinitely?

    Because it creates the same situation as if a prosecutor, who has gotten a felony indictment, tells the police to refrain from arresting the accused for some months or years, presumably because the prosecutor intends to extort payoffs or other un-owed favors from the accused. Isn’t preventing this is one of the reasons that criminal defendants have a right to a speedy trial? The same logic holds.

    1. Indeed. In fact this extends right down to the police in Texas (or at least San Antonio) with traffic tickets. I’ll explain, as it is a very apt comparison.

      Say the cop pulls you over and tickets you for something. On that ticket is a court date. But what sets up that court date? The filing of the ticket. Here, the cop has a (surprisingly long) window in which to file the ticket or not. But it has a window. That window runs past the court date.

      If you show up for that court date, the clerk will tell you they don’t have you on the docket, which means the cop hasn’t filed it. They will note you showed up and that now that your appointed date has come to pass the cop must personally notify you if they decide to file the ticket later on, up to the window (I don’t recall but I think it is three or six months) closing. After that date, if they never file it, it never existed. Yes, this is all the voice of experience shortly after moving here. ????

      I see this situation as structurally quite similar. The House has essentially issued a ticket at this point. There has been no filing of the ticket and resulting presence on the Senate’s docket. What is missing is the inbuilt expiration date. I think the ending of that session is a reasonable inference as it is used for other bills.

      1. Please allow a counter example.

        Perhaps you have committed a tort against me. I inform you that I intend to file a lawsuit (perhaps I’d prefer to settle out of court and not lose a third of the judgment to legal fees, perhaps I’m just trying to extort you. It’s my hypothetical but I’ll let you assume either one). Now…
        I can file a lawsuit the next day the court is open. Or I can wait a month. Or two months Right up until the statute of limitations run out, I have the option of filing a lawsuit, or not filing a lawsuit. Your options are to A) negotiate towards a settlement to keep me from ever filing the lawsuit, or B) waiting to see if I filed the lawsuit I’ve been talking about.
        Your options do not include heading down to the courthouse, and holding a trial about the matter, without me being involved. I’m sure the trial would be entirely fair and not at all one-sided, but still, I might have a FEW doubts when you announce that the trial completely exonerated you of any wrongdoing, and precludes me from filing any lawsuits against you.

  29. It’s incredible how many fools still pretend that anything that’s come out of the House impeachment charade is anything but deceitful, corrupt, twisted nonsense based on lies by depraved lunatics like Pelosi, Nadler and Schiff infected with Trump Derangement Syndrome.

    1. Cry more.

    2. You know how, back in school, when you did your math homework, you couldn’t just put in the answers thought were right, but rather, you actually had to show your work, to prove that your answer was right?

      You didn’t show your work.

  30. To get back to the topic- the timing of impeachment:
    The Senate, having sole power to try, can decide that impeachment has occurred as soon as the House approves at least one article. The House could object, but to whom? The Supreme Court would not get involved in any way. If the Senate says the impeachment is complete and proceeds to trial, there would be nothing the House could do to stop it.
    If the Senate did that and voted to remove an official, then the person convicted could argue that the constitutional process had not taken place. They could claim that the Senate cannot remove someone who had not been impeached. Since the Senate will vote to acquit, Trump will remain in office and he would have no reason to complain that he had not been impeached.

    Of course, the House could claim that no impeachment has yet taken place and attempt to prevent a Senate trial until they are ready. Or the House could “unimpeach” the President. That is, vote that he is not really impeached. This would be politically difficult, since the House majority has been promising its constituents an impeachment. Taking it back would lead to Trump claiming that even the House majority could not bring itself to impeach him.

    If the House were to take it back, it still could not prevent the Senate from holding a trial and acquitting.

    Plus, it is not at all clear that the House can take it back, either by formal vote or by declaring the House process is not yet complete.

    The outcome will depend on what the Senate Republicans will support. If they decide that they want a prompt short trial, that is what they will get. They don’t expect the House to cooperate and it will not. If the Senate Republicans decide that delaying the trial benefits the Democrats then they will not let it happen.

  31. Please see the unanimous SCOTUS case Nixon v. United States, 506 U.S. 224 (1993). The Senate does not need to have a delivery or a trial. They can vote to acquit immediately.

    See also the article:
    https://www.thepostemail.com/2019/12/22/scotus-no-articles-of-impeachment-or-a-trial-are-required-for-the-senate-to-acquit-president-trump/

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