Balkinization: How Sen. McConnell Would Justify Not Convening an Impeachment Trial

How Sen. McConnell Would Justify Not Convening an Impeachment Trial

David Super

Those urging the House of Representatives to impeach President Trump seem roughly to fall into two groups. One sees a resolution of impeachment essentially as an end by itself, either as a moral duty or as a means of mass political education. The other group sees impeachment as a step that could lead to the termination of the Trump presidency before January 2021.

As to the first group, I am uncomfortable with the indulgence of constructing abstract moral duties for ourselves on uncertain foundations at a time when an overwhelming, concrete moral duty – ensuring that President Trump is not re-elected – is upon us. I also am skeptical that an impeachment process would educate or persuade swing voters so much as it would enrage and motivate the President’s supporters. Today’s electorate is very different from that of 1973-74. I will not, however, claim sufficient political expertise to have much of value to contribute on that question.

As to the second group, however, a crucial part of the rationale for impeaching must be a plausible path from that act to the President’s early departure. (Another part of the rationale needs to be a solid reason for preferring that Mike Pence be president, either in terms of the actions he would take or his prospects in the 2020 election. That, too, I will leave to the side.)

I do not believe a plausible path exists from impeachment to removal or resignation. Most analyses of this question focus on the Democrats’ need to secure votes for conviction from twenty Senate Republicans. As I peruse the Senate’s roster, I cannot even come close to twenty plausible candidates even assuming serious new revelations. But I do not believe that the number of Republican senators that would vote to convict is even relevant because I do not believe that vote would ever occur.

Based on his handling of Judge Merrick Garland’s nomination to the Supreme Court, I do not expect Senator McConnell to convene an impeachment trial. As in 2016, this will generate considerable condemnation, but that outrage will come almost entirely from people who would not support Republicans anyway. Moreover, it will be directed at Senator McConnell alone, leaving all other Senate Republicans free to say whatever is politically expedient, just as they did on the Garland nomination.

Senator McConnell’s political justification presumably will be the same one he relied on to sideline Judge Garland: that an election is coming soon that will allow voters to decide for themselves. He will be able to make his refusal to convene a trial stick as a practical matter either if the Democrats are unable to force a vote on the question or if fifty senators support him on that procedural vote.

To hold the support of his senators, Senator McConnell may need to construct an argument asserting that he is not, in fact, violating Senate rules and precedents. Because he needs merely to make an argument that gives his senators sufficient cover not to intervene against him, I will lay out what I expect him to claim rather than assess whether this actually is the best reading of Senate rules and precedents.

The story starts well enough for the Democrats. Rule I of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials requires that, when House managers notify the Senate that they wish to present articles of impeachment, the Secretary of the Senate “shall immediately inform the House of Representatives that the Senate is ready to receive” those managers. Moreover, Rule III requires the Senate, at 1pm on the next business day, “to proceed to the consideration of such articles”. In addition, once an impeachment trial starts, Rule III requires the Senate to meet every day (other than Sundays) “until final judgment shall be rendered”.

Senator McConnell likely would argue, however, that “proceed[ing] to the consideration of such articles” does not mean actually beginning a trial. He will note that the rules call for the person who has been impeached to be personally served with notice of the date by which he or she must submit an answer to the articles under Rule X. (If personal service cannot be had, Rule VIII suggests that an advertisement on Fox and Friends might suffice.) The impeached person’s failure to enter an appearance does not prevent the trial from going forward: he or she is treated as having pleaded “not guilty” and is tried in abstentia.

Senator McConnell would argue that this implies that the trial would start later and that no date for the trial need be set when the Senate meets the day after receiving the articles of impeachment. He would also note that Rule XIII specifies the hour of an impeachment trial – 12 noon – but not the date.

Over the years, various statutes and Senate rules have established deadlines for the notoriously lethargic Senate to act. Some have been more effective than others. No such deadlines appear to apply directly to the holding of impeachment trials. Senator McConnell would note that at least two judicial impeachment trials were not completed during the Congress in which they were initiated. A common method of forcing business to the front of the Senate’s agenda is the privileged motion. Clever readings of the rules permitting various privileged motions might allow Democratic senators to try to bring the issue to the floor. The exceedingly complex procedural posture, however, likely would give Republican senators considerable cover to vote to sustain a point of order against such a motion.

The one person who possibly could frustrate an attempt by Senator McConnell to avoid holding an impeachment trial is Chief Justice Roberts. Article I, section 2, makes the Chief Justice the Senate’s presiding officer for impeachment trials of the president. Arguably he assumes this status as soon as the House presents articles of impeachment. If so, Rule VII instructs the Chief Justice to “direct all necessary preparations in the Senate Chamber”, which arguably includes setting a date for the trial. Similarly, Rule XVI provides that “[a]ll motions, objections, requests, or applications whether relating to the procedure of the Senate or relating immediately to the trial” would be submitted to him. Upon presenting articles of impeachment to the Senate, the House managers become parties and could present a request or application to convene the trial. I very much doubt, however, that Chief Justice Roberts would have any inclination to challenge Senator McConnell, least of all on such an overtly political matter.

I note in closing my genuine amazement at the House Democrats’ handling of the days leading up to the Mueller hearings this week. Even if they truly believed Mr. Mueller would be a cooperative witness – and he had given ample indications that he would not be – raising expectations that he would clearly describe “high crimes and misdemeanors” in a way the diffident public could understand all but guaranteed that the hearing would be perceived as a disappointment and play into the President's hands. Although she cannot say so publicly, I cannot help wondering if Speaker Pelosi’s reluctance to proceed with impeachment reflects her assessment of the political skills of her Members who would be responsible for leading the effort. Sam Ervin and Peter Rodino are nowhere to be seen.

@DavidASuper1

Posted 7:39 PM by David Super [link]