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