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Volokh Conspiracy

Can McConnell Refuse to Hold a Senate Trial


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

Here's a taste:

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

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