Can the Senate Decline to Try an Impeachment Case?

By Bob Bauer, Lawfare

22 January 19

oes the Senate have an obligation to conduct a trial of the president if the House impeaches him? With the increased prospects for an impeachment inquiry now that the Democrats have taken control of the House of Representatives, most discussions of impeachment have assumed that, should the House vote to impeachment, the Senate will then hold a trial. This is the logical construction of the Constitution’s provisions setting out the impeachment process: If the House impeaches, then it would follow that the Senate tries the case. This is what the Senate did on the two occasions, in the cases of Andrew Johnson and Bill Clinton, that the House voted articles of impeachment.

The current Senate rules would further support this view. They contemplate that when the House has voted an impeachment, the Senate will be notified, the House managers will present their case and trial proceedings, which the rules prescribe in some detail, will begin. 

But it also possible that, in this time of disregard and erosion of established institutional practices and norms, the current leadership of the Senate could choose to abrogate them once more. The same Mitch McConnell who blocked the Senate’s exercise of its authority to advise and consent to the Supreme Court nomination of Merrick Garland, could attempt to prevent the trial of a House impeachment of Donald Trump. And he would not have to look far to find the constitutional arguments and the flexibility to revise Senate rules and procedures to accomplish this purpose.

The Constitution does not by its express terms direct the Senate to try an impeachment. In fact, it confers on the Senate "the sole power to try,” which is a conferral of exclusive constitutional authority and not a procedural command. The Constitution couches the power to impeach in the same terms: it is the House’s “sole power.” The House may choose to impeach or not, and one can imagine an argument that the Senate is just as free, in the exercise of its own “sole power,” to decline try any impeachment that the House elects to vote.

The current rules governing Senate practice and procedure do not pose an insurmountable problem for this maneuver. Senate leadership can seek to have the rules “reinterpreted” at any time by the device of seeking a ruling of the chair on the question, and avoiding a formal revision of the rule that would require supermajority approval. The question presented in some form would be whether, under the relevant rules, the Senate is required to hold an impeachment “trial” fully consistent with current rules—or even any trial at all. A chair’s ruling in the affirmative would be subject to being overturned by a majority, not two-thirds, vote.

This is a replay of the argument and related procedure followed for the “nuclear option” that changed the threshold for “cloture” of judicial nomination debates from a two-thirds to a majority vote. When the Republican leadership floated the option in 2005, some made the case that because the Constitution conferring the Senate’s advice and consent authority does not subject that authority to any supermajority confirmation requirement, the Senate rules could not provide otherwise. Some might argue that the rules also cannot constitutionally bind the Senate to a trial of a House impeachment if, in the exercise of its “sole power” to try, it decides against one. In this way, the Senate rule may be “reinterpreted.” 

The Senate has options for scuttling the impeachment process beyond a simple refusal to heed the House vote. The Constitution does not specify what constitutes a “trial,” and in a 1993 case involving a judicial impeachment, the Supreme Court affirmed that the Senate’s “sole power” to “try” means that it is not subject to any limitations on how it could conduct a proceeding. Senate leadership could engineer an early motion to dismiss and effectively moot the current rule’s call for the president or counsel to appear before the Senate. The rules in place provide at any rate only that “the Senate shall have power to compel the attendance of witnesses”: they do not require that any other than the president be called. Moreover, the Senate could adjourn at any time, terminating the proceedings and declining to take up the House articles. This is what happened in the trial of Andrew Johnson, in which the Senate voted on three articles and then adjourned without holding votes on the remaining eight.

This discussion does not engage in depth with all the parliamentary possibilities and intricacies. But it is sufficient to say for present purposes that, if the House of Representatives were to impeach the president, Senate Republicans would be in a position, if so inclined, to scuttle any trial.

Of course, this might never come to pass. If Trump were to be impeached, the evidence for his removal from office could turn out to be so overwhelming that it would be politically untenable for McConnell to adopt this course or impossible for him to hold his caucus in line. These outcomes are particularly likely if public opinion at the time swings decisively against the president. Or alternatively, one might hope the Republican leader retains institutional instincts that would kick in and lead him to follow Senate rules and precedent.

But he might not. Republicans have laid the groundwork for rejecting the legitimacy of a House impeachment. The president and his party’s leadership and supporters have repeatedly and vociferously characterized the strong Democratic criticisms of Trump as infected to the core by unremitting partisanship, personal hatred, an unrelenting refusal since Election Day to accept the result of the 2016 election and unlawful or unethical conduct by the Department of Justice, the FBI, the special counsel and the press. And whatever evidence eventually surfaces, Senate Republicans have already shrugged off the president’s appearance in a successful criminal prosecution as “Individual 1,” an allegedly active participant in a conspiracy to violate the campaign finance laws. As the debate over impeachment process plays out over 2019, and as the 2020 presidential campaign already underway intensifies, those advancing this case may argue for letting the voters decide.

Professor Laurence Tribe has argued that Senate retains a clear constitutional “duty” to proceed with a trial. He grounds that obligation in the "structure, history, function, and logic of the impeachment Power, not from any mandating language." On this we agree: the Senate does have this duty to try any impeachment voted by the House. The individual senators would violate their oath in altogether ignoring the House’s constitutional judgment that the president, having committed impeachable offenses, is unfit to retain the office. For the Senate and a majority to adopt this course is wrong and dangerous. 

But such a duty is not the same as a clear-cut constitutional obligation expressed in the text, and, depending on events and their political impacts, the Republicans may be motivated to exploit the difference. If a Senate majority can readily enough accomplish the result of altering its rules and sidestepping a trial, then the opposition can only respond to this initiative through the application of public pressure and the threat of harsh electoral justice meted out in the next election. No one disputes that there is no judicial remedy or other means of enforcing the constitutional duty that Tribe identifies.

All of this may seem academic in the extreme when the House has yet to even initiate an impeachment inquiry. But the country could see a rapid move toward an impeachment and, most predictably after the special counsel concludes his investigation, an accelerated process in the House toward that end. It may not be too soon to ask McConnell and his Republican colleagues whether they support the Senate’s duty to try in full a House impeachment of Donald Trump, in conformity with current rules.