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Volokh Conspiracy

Impeaching Slow, not Fast

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

|The Volokh Conspiracy |


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

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

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

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

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

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

I flagged this possibility in a post earlier this week:

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

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

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

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

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

You heard it here first.

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and the President of the Harlan Institute. Follow him @JoshMBlackman.