The Senate should ask the House if the President has been impeached for purposes of Art. I, Sec. 2

A simple communication could resolve any doubts about the status of the President's impeachment

|The Volokh Conspiracy |

Has the President been impeached? Depends who you ask. One way to resolve this debate is for the Senate to inquire. That is, the Senate could send a formal communication to the House, and ask if the President has been impeached for purposes of Art. I, Sec. 2. The House could say "yes" or "no." And that communication would resolve the debate. Or the House could simply ignore the request, which suggests that the House is not yet prepared to announce its decision, or that the House simply has no interest in responding to the Senate's request. Either way, this communication could provide the Senate, and the public, with some greater clarity about where we stand on this important question. I see little downside for the Senate to send such a communication

I thank my colleague Seth Barrett Tillman for offering this suggestion.

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  1. Option 4: “We will respond at the appropriate time.”

  2. Excellent suggestion, I hope McConnell is reading this. And, just curious, but who exactly is the obstructionist here, the President or Pelosi?

    1. Yes.

      But the question is: are they obstructing a) in a sufficiently improper manner and b) more than their predecessors were and c) is that the right standard?

      If the Democrats could convince the Republicans that they were sufficiently bound by the new standard such that it would be applied to future presidents in a bipartisan manner I think there’s a good chance the Republicans would support the impeachment.

      But the clear pattern is not to use the same standard for both parties (whether you agree or not is immaterial, Republicans assuredly think so), so convincing them will be very hard, especially after following the track record of applying a different standard to Trump now. Had the Democrats tried to make that bargain before running down this path they’d have an easier time, but that was foregone to proclaim, in the words of the Speaker, “he’ll be impeached forever.”

    2. Meh. The very act of asking would suggest to the Democrats that McConnell is weakening his resolve.

  3. If Sen. McConnell wishes to spend the holidays wondering whether Speaker Pelosi will decide his impotent inquiry is worthy of response — and precipitate the associated spectacle — he should act on this tip without delay.

  4. Won’t the vote be reported in the Congressional Record?
    Why isn’t that sufficient?

    1. Only because current Senate rules say the Senate doesn’t act until the House appoints managers and notifies the Senate as to who they are.

      It’s not a constitutional question, it’s a question of the chamber’s rules. Which McConnell doesn’t have enough votes to be sure of amending to allow him to go ahead without the notification.

      1. It’s not a constitutional question, it’s a question of the chamber’s rules. Which McConnell doesn’t have enough votes to be sure of amending to allow him to go ahead without the notification.

        But they changed the rule about filibustering Supreme Court nominees with a mere majority vote, though Republican senators would no doubt be hesitant about normalizing that procedure especially in a case like this where they’re just dealing with technicalities.

        1. “Republican senators would no doubt be hesitant about normalizing that procedure especially in a case like this where they’re just dealing with technicalities”

          I doubt it. Nuking the filibuster to change the rules about something that happens so rarely doesn’t seem like its to controversial.

          1. I doubt it. Nuking the filibuster to change the rules about something that happens so rarely doesn’t seem like its to controversial.

            I’m just saying that every use of that procedure gets the Senate closer to just ditching the filibuster completely, and senators from both parties are very skittish about that, since most of them have been in the minority. They need a very good reason or they’re not going to go along, and the need just doesn’t exist here.

      2. I’d agree. McConnell would probably gain a good deal of support for changing the rules the longer it sits. Right now, it’s minimal delay. Wait 2 months, and still nothing, and there’s more cause to change things.

      3. There are two parts to the rule.
        1 The House notifies the Senate
        2. The House appoints Managers.

        Doing the first and delaying the second seems to achieve the same delay.
        As I understand it the Speaker doesn’t want to appoint Managers until the Senate sets the rules for a trial and want’s to impose some conditions on how the trial will be held.

        It seems clearly unconstitutional for the House to dictate procedures to the Senate.

        Article 1.
        Section 5
        Paragraph 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

  5. Nothing in the Constitution required that the Articles to be presented to the Senate in any particular fashion. Presentment is merely a Procedural step provide details for in the rules of the Senate on impeachment. Once the House vote is final and enrolled in the records of the House I think impeachment has occurred. And the Senate can then decide whether or not to commence the trial if the Articles haven’t been presented in accordance with Senate rules.

    1. That’s nonsense. That’s like saying once a lawyer has drafted an appeal, that the case has been appealed, even though he hasn’t filed the papers with the court.

      Why is legal procedure so bloody important, always, except in the case of Trump’s impeachment?

      1. Because a lawyer drafting an appeal is not an official act.

        Voting in the House or Representatives on Articles of Impeachment, and having them passed (by narrow, partisan margins), is.

        And since you raise the matter of an appeal, appeal are commenced when a Notice of Appeal is file. It’s a one-page piece of paper that says “The Plaintiff or Defendant hereby appeals the judgment of the trial court.” Usually due within 30 days. That’s it. That is then sent to the Court of Appeals, which sets a schedule for filing briefs and the record from below. If the attorney for the appellant fails to file his brief on time, then you may lose the whole appeal by default.

        1. And the analogy to the House manager bringing the details to the Senate is to serving the opposing party. Filing with the court triggers the appeal, and while failure to serve will often be held against you (especially if you take a while) it’s not dispositive. But if you think the harder line should be enforced (failure to serve the other party is grounds for dismissal of the appeal) then a failure to send the House managers over to the Senate would warrant a dismissal.

          Of course with analogies things don’t fall in line perfectly, but it provides a foundation to help think through the right way for things to work.

        2. I think the analogy is farther along than is warranted.

          The house voting to impeach is analogous to a cop writing you a ticket. He or she is accusing you of having committed a crime a bit bit charged with it. You are charged with it when the cop files the rickety with the court.

          That is how the comparison to other criminal process looks to me. I think placing a vote to impeach at the level of being charged is inaccurate.

          1. I think the Committee Hearing are closer to “writing a Ticket”.

            The voting of Articles of Impeachment is the indictment.

            The Senate holds the trial.

          2. Agree with rsteinmetz
            The best analogy is a grand jury voting to indict. The Federal Rules of Civil Procedure then provide that “The grand jury—or its foreperson or deputy foreperson—must return the indictment to a magistrate judge in open court.” The Magistrate then arraigns the person, sets bail and binds him over for trial.

            The House voting to impeach is the equivalent of a grand jury indicting. Once that happens, you have to proceed expeditiously to trial.

    2. Agreed. This is not complicated. Stop confusing non-constitutional procedural minutiae with the Constitution. The House has acted. Senate should proceed to trial.

      1. “IV. Sequence of events at the beginning of a trial……………….9
        1. First a message(s) from the House of Representatives
        is received containing the information that the House
        has voted impeachment, adopted articles, and appointed
        managers. The Senate then adopts an order informing the
        House when it is ready to receive the managers to
        present the articles of impeachment………………..”

        From: PROCEDURE AND GUIDELINES FOR
        IMPEACHMENT TRIALS IN THE
        UNITED STATES SENATE

        (REVISED EDITION)

        PREPARED PURSUANT TO SENATE RESOLUTION 439,
        99TH CONGRESS, 2D SESSION

        What’s so hard to understand about that? Has the House sent the message yet? No.

  6. I’d say the Senate should wait until one side or the other – the House or Pres Trump – requests some action on the articles of impeachment – whether it’s the House exhibiting the articles and calling for a trial, or Trump asking either for a prompt start to the trial or a dismissal of the charges.

    1. They will obviously wait a couple of weeks to let it sort itself out, but they can’t wait forever. A third of the Senate is up for election, and 4 of them are running for president, and of course all of the house including the managers have campaigns to run. Not to mention Trump has to go through the renomination process too. They can’t wait until the middle of the summer when the election is heating up to transmit the impeachment, Or if they do then 51 votes can just dismiss it, or McConnell can announce he’s delaying it until after the election and let the people decide.

      Or maybe McConnell will wait until the Democratic primaries start up, then change the Senate rules to allow them to try the impeachment as the house has already voted, then start scheduling procedural votes at the worst time for Sanders, Warren, Klobacher, and Booker.

      1. McConnell will, obviously, do what he wants and maybe his Republicans will follow along with him.

        However, in my incorrigible naivete, I’d like to hope other Senators would hold a certain aloofness in view of the fact that, in the event the impeachment comes before the Senate, they’d have to make a formal promise to do impartial justice. I know McConnell has prejudged the matter, as have some of the Presidential candidate-Senators. Maybe they’ve all prejudged it.

        This is a contest between the House, on the one hand, and the person they’ve accused, on the other. It’s an adversarial system and the Senate is the arena in which the contest will be fought.

        Let one party or the other – the House or Pres Trump – take the initiative to formally apprise the Senate of the existence of the articles of impeachment. The House need only follow the procedure spelled out in Senate rules. The Pres, like any defendant, or like someone litigating in small-claims court, has the right to petition the trying body for a speedy trial. Or, if certain commenters are correct, to obtain a ruling that there’s no right to a speedy trial and the timing is all up to the House. Such a ruling would clarify matters, and we would be able to see which Senators believe there’s less due process in an impeachment case than in a small-claims court case.

        1. ” I’d like to hope other Senators would hold a certain aloofness in view of the fact that, in the event the impeachment comes before the Senate, they’d have to make a formal promise to do impartial justice.”
          An interesting statement, did the Democrats in the house allowing the testimony of opinion, rumor, and innuendo be admitted occur in a vacuum? When Schiff gave his made up narrative of the phone call; did none of the senators watch it? I could go on; but the fact of the matter is that everything that the Democrats have, is already known by everyone in the Nation.
          People, including senators, have witnessed the entire process, seen the testimony of what witnesses there was, and know exactly the who decided what process was used.
          I have some bad news for you; the entire “impeachment” effort possessed no search for truth. It did not matter what the “charges”; the house would have voted to impeach. They were always going to impeach Trump; and the entire Nation knows it.
          McConnell is simply telling the truth; in your “incorrigible naivete” perhaps you could acknowledge that this “impeachment” is not about Trump at all; it is about hated of Trump by people that refused to accept the 2016 election results.

          1. The timing is mighty late for the Dems to have been just waiting to impeach Trump.

            And no one though Schiff talking in a goofy voice was to be taken for truth. The accusation has become a way you can tell the afactual right who care more about a narrative than facts.

            We may disagree but your novels are highly amusing!

      2. It seems to me that the Senate could pass a rule along the lines of “if an impeachment is based on information known to the House in the same year as an election for the impeached person then the Senate convicts, removed from office, and bans from further office if that person loses their election, and the Senate acquits if that person wins their election, so that the People as a whole can decide if the alleged conduct warranted impeachment. The Senate may hold hearings and vote prior to the subsequent election should they deem it necessary, and will otherwise be bound by their final assent to the electoral vote”

        I think that would work, because one Senate isn’t binding a future on (ignore their pretense that they’re still the original senate), but instead setting rules for how to ascertain their votes – you look at a proxy. That would stymie any plans for the House to sit on the articles of impeachment until after they take the Senate because the Senate would have already voted on that impeachment, but of course wouldn’t prevent the House from impeaching for any other reason.

        Less use it’s a good idea, because much of our constitution is predicated on some degree of good faith between factions, which we seem to have lost.

        1. This seems both impractical and unwise.

          A sitting President may be wholly innocent of the charges for which he was impeached, but still fail to be reelected for other reasons, such as voters disliking his policy proposals.

          Why should he then be tainted by the conviction or barred from holding some other office?

      3. A third of the Senate is up for election, and 4 of them are running for president,

        A single tear runs down Michael Bennet’s face.

  7. Trump should just announce on Twitter that Pelosi got cold feet so she dropped the case. And quote Professor Noah Feldman, Nadler’s own expert witness, that the House hasn’t impeached the President if they decline to transmit it to the Senate.

    It’s all bullshit anyway, Trump’s looking better and better in the polls the longer this goes on, and Pelosi wants to extend it further?

    1. Trump has spent his presidency drifting between 38 and 43. He’s all the way up to 43.4 today, which is better than the 41.2 of a month ago but scant indication he is going to escape the years-long 38-to-43 basement.

      If anything, the range has narrowed (to 39 to 42) during the past couple of years.

  8. Johnson was never impeached, Clinton was never impeached nor Trump because a President cannot be impeached but by the two-thirds majority of the Senate. At best, it can be said articles of impeachment were filed against them but they were never impeached by a two-thirds majority of the Senate.

    1. You are confusing impeachment with voting to remove.

  9. According to an article by Noah Feldman, if the House doesn’t send the articles over Trump can justifiably claim that he was not impeached.

  10. The Speaker of the House has said the House passed articles of impeachment; the President has said that the House passed articles of impeachment; various tabloid (formerly news) outlets have published that the House passed articles of impeachment; and the people at large believe that the President has been impeached. I don’t think the Senate Majority Leader or the President of the Senate have stated whether President Trump has been impeached, but I would

    The only people who don’t believe that President Trump has been impeached are a few lawyers obsessed with intricate (and largely irrelevant) rules and desperate partisans who realize that by passing this to the Senate means the Republicans will get a chance to fight back.

    The Senate has the sole power to hear impeachments. The Senate can decide whether there is an impeachment to hear. Speaker McConnell would be well advised to tell Speaker Pelosi that he doesn’t care about what she believes the proper procedure is in the Senate.

    1. * I would expect they’ve used the language “impeached” at some point in their comments.

    2. Problem with that is, Trump does care about the procedure, and he wants something closer to what Pelosi wants—an actual trial. Trump wants it because he thinks it will vindicate him. Pelosi wants it because she thinks it will destroy him.

      But McConnell doesn’t want a trial at all. He is worried that Pelosi is closer to right than Trump is, and that a trial would put Republican Senators in electoral difficulties. Maybe cost McConnell his own job as majority leader.

      Campaign ads featuring footage of cross-examination of witnesses could be brutal for Republicans. To avoid that, McConnell wants to make the whole thing disappear in a puff of smoke.

      1. They aren’t going to allow live testimony no matter what Pelosi says, does, or thinks.

      2. You think they are going to allow Pelosi to have whatever witnesses she wants, and not let Trump call his witnesses?

        Joe Biden has said he’ll ignore any subpoenas he receives which would be a great optic, because that was one of the counts against Trump. Hunter would certainly be called. He needs to be asked how one year after he was publicly kicked out of the navy for cocaine use, he lands a job with Burisma at 50,000 a month.

        Trump will also call the 2 Ukrainian prosecutors who will state they were investigating Burisma when they were fired, and let them publicly speculate whether Joe did it to protect his son. They’ll also testify that the money Hunter was getting paid probably came from funds diverted from US aid to Ukraine, making Hunter and Joe complicit in stealing from US taxpayers.

        1. Kazinski : Trump will also call the 2 Ukrainian prosecutors who will state they were investigating Burisma when they were fired, and let them publicly speculate whether Joe did it to protect his son.

          Uh huh. Lindsey Graham just loudly suggested he’d have Giuliani in to testify on his lasted “findings”. I just laughed. You see, after Rudy gave his little speech, it’d be time to answer questions, and that would be a GOP disaster. Multiple that calamity a hundredfold, and that what you’d see with Shokin and Lutsenko squirming under the hot lights. Both of them – Shokin in particular – have records of grotesque corruption. Imagine Shokin testifying on his “diamond prosecutors” : his underlings arrested for taking bribes with millions of dollars in diamonds found at their homes; underlings he then freed with no charges.

          The stories you want them to tell are lies: There was no investigation of Burisma when Shokin was fired. And stealing taxpayer money to pay Hunter? Even YOU can’t be imbecile enough to believe that. There has to be a limit to your gullibility.

          It would be a wonderful spectacle. John Bolton is going to unload on Trump one day, and a Impeachment trial would be the perfect place. The man who said he wanted no part of any White House “drug deals” would get to explain everything he saw and heard. Meanwhile, you would bring in two Ukrainians reeking of corruption to see their life, record, and lies all shredded to pieces. The contrast would probable swing a few GOP votes…..

        2. You think they are going to allow Pelosi to have whatever witnesses she wants, and not let Trump call his witnesses?

          Of course not. And I have already posted at least 3 times that I think both sides should get to call all the witnesses they want, including in Trump’s case at least the whistle blower, both Bidens, and Adam Schiff. Build the list to suit, but no witnesses who cannot be compelled to face a U.S. perjury charge.

          On the D side I want to hear from at least Bolton, Mulvaney, Giuliani, Parnas, and Trump. Probably also everyone who has been served a subpoena by the House, or by Mueller, and not answered it.

          I want counsel for both sides to do the examining and cross-examining. I want all the witnesses sworn. I want both sides to have access to compulsory process to produce evidence and witnesses.

          In short, I want sunlight, and I think the nation needs sunlight. If Trump has been unjustly treated, I want a trial thorough enough, and open enough, to show it. If not, Republican Senators will still remain free to return any arbitrary verdict they choose. But they will have to do it in light of the evidence.

          That will be good enough for me. With a fair trial, I am sure political accountability can sort it out from there.

          So how about you Kazinski? You good with all that, or are you looking for a sham process?

  11. The Senate gets to make the rules.
    The Republicans, for now, rules the Senate as far as rule making goes.
    Get with the program Mitch; declare the impeachment vote as sufficient, rule only the transcripts are permissible evidence, no testimony (as for Clinton), introduce the transcripts, and have the vote.
    All done. Now challenge the democrats to do some legislating.

    1. They don’t even have to go that far. They could enact a rule that says by impeachment that isn’t for an actual crime is dismissed since the constitution doesn’t provide for impeachment for non-crimes.

      1. They could also enact a rule that says people reciting the dumbest talking points they heard on talk radio will be deported to the southern side of the wall Mexico is paying for.

  12. I had this thought earlier today on another story discussing the Senate rules and started researching the House and Senate rules until I had to get back to work.

    The House rules seemed to state that the impeachment occurred when the articles of impeachment were approved, not when they were transmitted to the Senate.

    The story I mentioned earlier referred to the Senate rules that their impeachment procedures would begin when those articles of impeachment were transmitted to the Senate.

    So yes, there does appear that there may be some limbo period. And to this story’s point – what should keep one government entity from asking for clarification from another government entity? Any lack of a proper, timely response might provide insight into the underlying motives.

    For example, if Speaker Pelosi knew an impeachment conviction would never pass the Senate, it might make it more palatable to impeach President Trump since he wouldn’t actually be removed from office, just knocked down a peg or two.

    1. I need to respond via Twitter a little quicker so I can get proper credit next time…

  13. This is all minor news. What really matters is whether Palpatine is still Emperor. We thought he was dead at the end of RETURN OF THE JEDI, but now he appears in RISE OF SKYWALKER. Is he or is he not, still emperor?

  14. While discussing little details like this, one question is, who actually controls transmission of the articles of impeachment (and other bills) for that matter? Is it just Pelosi?

    This leads to a few interesting constitutional questions.

    For example, if the House of Representatives was to impeach a president, but the Speaker of the House didn’t agree, could the speaker just not transmit the Articles of Impeachment? Effectively acting as a one-person bar on impeachment?

    Are there other areas in the legislature, where a “transmission” or “recording” is needed in order to officially document an act? And where one person could effectively stop the majority from accomplishing their legal goals? IE, would a Senate Impeachment Conviction need to be recorded and transmitted? And could one person simply “decline” to do so? Thus nullifying the conviction?

    1. I don’t think a one person veto of impeachment should work.

      Could a Republican just print the Articles from the House website and hand carry them to the Senate?

      What would the Democrats say? Would they vote to expel him? (There are some retiring so it might not matter.)

      1. Oooh… I like that. Just get a member of the House to hand carry the articles of impeachment over to the Senate? I can imagine the debate…

        Pelosi: “No, no the articles weren’t transmitted”
        Senate: “We have them right here. Representative Amash brought them over”
        Amash: “Yes, I did. I thought it was important to get this impeachment proceeding started”
        Pelosi: “He had no right. It’s not official! They weren’t transmitted!”
        Senate: “But they were. An elected member of Congress brought them”.
        Pelosi: “I’ll sue!”…

        It would be great.

  15. McConnell should announce that the trial and vote are sheduled for the week of July 13, 2019.

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