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 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.