The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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."
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.
Last month I considered several hypothetical rule changes. One of them would have allowed the Senate to dismiss approved-but-not-yet-transmitted articles of impeachment.
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 rule was premised on 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.
I thought such a rule could pass constitutional muster:
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.
Senator Hawley, joined by ten other GOP Senators, has introduced a resolution to change Rule 1 along the lines I proposed. Rule 1 would now contain this additional clause:
If, following adoption of such articles, the House of Representatives does not so notify the Senate or otherwise provide for such articles to be exhibited to the Senate within 25 calendar days from the date of adoption of such articles, as recorded in the Journal of the House of Representatives, such articles shall be deemed exhibited before the Senate and it shall be in order for any Senator to offer a motion to dismiss such articles with prejudice for failure by the House of Representatives to prosecute such articles. Such motion shall be adopted by an affirmative vote of a majority of the Senators, duly chosen and sworn, without debate by the yeas and nays, which shall be entered on the record.
And I think Hawley's proposal would also be constitutional.