by Diane Rufino, December 23, 2019
My friend Joe McLaughlin said that he heard that despite House Speaker Nancy Pelosi choosing to hold back the articles of impeachment that House Democrats alone passed against President Trump from the Senate (until certain conditions are met – ie, “quid pro quo”), the Senate has the opportunity to act. He asked if this is true.
Here is how impeachment works, as I understand it. The Constitution speaks to impeachment process but not to an detailed procedure. It is a 2-part process, to be separated by 2 distinct branches of the legislature. It is an act of separation of powers, designed to temper political passions and to resort to reason and responsibility. All the Constitution says is that the House of Representatives can bring impeachment charges against the president (a simple majority is all that is required) but it is the Senate that has the power to remove him for those charges. Article 1, Section 2 states that the House “shall have the sole Power of Impeachment” – meaning it alone has the power to bring charges of “high crimes and misdemeanors” against a president. The far greater responsibility lies with the Senate, as it should, since those representatives were (as the original Constitution provided) selected by the states and not the populace and hold a far longer tenure in office and hence are (or should be) more knowledgeable and responsible. Section 3 states that the Senate “shall have the sole Power to try all Impeachments.” A president is removed from office by a 2/3 supermajority vote of the Senate. As you can see, there is no mention of procedure in the Constitution. The question we are pondering is this: Isn’t the House REQUIRED to send the articles of impeachment to the Senate IMMEDIATELY? To answer this, we have to look to the Senate’s own RULES governing how it handles its role, its procedure, in the impeachment process. Currently, those rules begin by stating: The first rule of impeachment procedure states that the Senate will not act on an impeachment until the House sends to the Senate its appointed “managers”— the representatives who will act as the lawyers during the impeachment trial. After the House has presented its managers to the Senate, then the Senate takes the reins and launches its trial. If the Senate wants to frustrate Pelosi’s “quid pro quo” attempt, all it needs to do is alter its rules outlining the impeachment procedure in the Senate. It simply needs to put a time limit on the transmission of articles of impeachment to the Senate, asserting that any so-called “crimes” levied against the President under the impeachment power must be deemed serious enough to warrant immediate action by the Senate. Otherwise, they are not serious enough to have been brought against him in the first place.
In an opinion piece for FOX News by GianCarlo Canaparo titled “Pelosi Powerless to Delay Trump Impeachment Trial if Senate Does THIS,” Mr. Canaparo pretty much summed up the very same opinion. He wrote:
The first rule of impeachment procedure states that the Senate will not act on an impeachment until the House sends to the Senate its appointed “managers”— the representatives who will act as the lawyers during the impeachment trial. After the House has presented its managers to the Senate, then the Senate takes the reins and launches its trial.
So can Pelosi delay an impeachment trial? Yes, as long as the Senate doesn’t change its current rules. But there’s absolutely nothing stopping it from changing this rule, and the Senate should change the rule to prevent this sort of gamesmanship.
The Senate should not let Pelosi interfere with its constitutional obligations and its independence in this way.
Impeachment of the president shakes the nation to its core, and when, as here, it’s done in a nakedly partisan way, it divides the country and damages our constitutional framework. It needs to be over as quickly as possible.
So the Senate should change its impeachment rules as follows: once the House has impeached the president, the Senate shall set a date for trial and shall set a deadline for the House to present its managers to the Senate. If the House fails to meet that deadline, the Senate will either dismiss the articles of impeachment for lack of prosecution or, better yet, vote on the articles immediately in light of the evidence presented to it — in this case, no evidence.
Having set this boulder rolling, House Democrats should not be allowed now to hold it up. They started this process. It’s up to the Senate to finish it on its terms alone. Not Pelosi’s.
As I pointed out earlier, the Constitution doesn’t say how fast the articles must go to the Senate. But it can arguably be assumed that some modest delay might be expected. It certainly wouldn’t be inconsistent with the Constitution. But certainly an indefinite delay – and certainly a “quid-pro-quo” type delay – would pose a very serious problem. It might even rise to a “constitutional crisis.”
But FOX News isn’t the only opinion on Pelosi’s decision to withhold the articles of impeachment.
According to leftist/ progressive Harvard Law Professor Noah Feldman, who testified in favor of impeachment and on behalf of Democrats in front of the House Judiciary Committee earlier this month, President Trump isn’t actually impeached until the Pelosi sends the articles to the Senate. He argues that impeachment, as contemplated by the Constitution, is a process. It does not merely consist of a vote by the House, but includes a trial in the Senate on those charges (the impeachment charges) to determine whether they are serious enough to warrant removal from office. Both parts – the articles of impeachment brought by the House and the trial in the Senate –are necessary to legally constitute “impeachment” under the Constitution. to make an impeachment under the Constitution: In other words, the House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.
In an article he penned for Bloomberg Opinion, titled Trump Isn’t Impeached Until the House Tells the Senate, Professor Feldman wrote:
“According to the Constitution, impeachment is a process, not a vote If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.”
In fact, President Trump is already hinting that this is his position.
And this brings us to another point – the Senate must actually hold a trial on the impeachment charges. Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Just as unreasonably holding back the articles of impeachment or indefinitely holding them back from the Senate frustrates and therefore violates the Constitution scheme of impeachment, failure for the Senate to hold a trial after impeachment would also clearly deviate from such expectations. It would deny the president the chance to defend himself in the Senate that the Constitution provides. We couldn’t, in good conscience as a “free nation,” deny the President of the United States, duly elected by the American people under the Electoral College system, the fundamental right to confront his accusers and to defend himself in a trial before a vote is taken on removal from office. Due Process demands that when there is a right at stake (the office of the presidency being the right in this case), there must be a legal procedure in place to allow the accused to confront and address those who try to deny him that right. The most debase and vile of criminals are guaranteed this right, after all.
The drafters and framers of our Constitution included the provisions for impeachment taking note of how it had been practiced in England. In England, the House of Commons brought impeachment charges and the House of Lords tried those charges. In fact, the whole point of Commons bringing the charges was for them to brought against the accused in the House of Lords, in the form of a trial. Strictly speaking, therefore, “impeachment” refers to the process of presenting the articles of impeachment to the Senate for trial. And, as emphasized earlier, at that point the Senate would be obliged by the Constitution to hold a trial.
If the House were vote to “impeach” Trump (which it did) but doesn’t send the articles to the Senate or send impeachment managers there to carry its message, then while it hasn’t directly violated the text of the Constitution, it certainly has technically violated it by intentionally acting against the implicit logic of the Constitution’s process of impeachment. Again, we see the logic in President Trump’s position.
With respect to Pelosi’s quid-pro-quo argument that articles of impeachment will be withheld until SHE deems that the Senate procedures are fair enough to the Democrats, Professor Feldman dismisses that position altogether. He asserts that only the Senate is empowered to judge the fairness of its own trial. After all, that is what is explicitly stated by the phrase “The Senate shall have the sole power to try all impeachments.”
But even if we decide to overlook GianCarlo Canparo from FOX News and Professor Noah Feldman, there is still liberal law school professor Alan Dershowitz. Dershowitz pretty much echoes the same position as Feldman.
Dershowitz further criticizes the Democrats for its second article of impeachment, which in his opinion is abusive and threatens the integrity of the impeachment process. He says that although the entire impeachment process by House Democrats smacks of partisanship, it is the second article of impeachment that particularly does so. And he is concerned for its effect in future attempts to impeach a partisanly-unpopular president.
While lamenting over this second article of impeachment, Dershowitz was encouraged by the recent decision by the US Supreme Court to review the lower court rulings involving congressional and prosecution subpoenas directed toward President Trump, which he claims “pulls the rug out from” or “undercuts” the Democrats’ second article of impeachment. That second article of impeachment charges President Trump with obstruction of Congress for refusing to comply with the congressional subpoenas in the absence of a final court order. In so charging him, the House Judiciary Committee has arrogated to itself the power to decide the validity of subpoenas, and the power to determine whether claims of executive privilege must be recognized, both authorities that properly belong with the judicial branch of our government, not the legislative branch.
In an article he wrote for The Hill, Dershowitz explained: “President Trump has asserted that the executive branch, of which he is the head, need not comply with congressional subpoenas requiring the production of privileged executive material, unless there is a final court order compelling such production. He has argued, appropriately, that the judicial branch is the ultimate arbiter of conflicts between the legislative and executive branches. Therefore, the Supreme Court decision to review these three cases, in which lower courts ruled against President Trump, provides support for his constitutional arguments in the investigation.”
He further wrote:
The cases that are being reviewed are not identical to the challenged subpoenas that form the basis for the second article of impeachment. One involves authority of the New York district attorney to subpoena the financial records of a sitting president, as part of any potential criminal investigation. The others involve authority of legislative committees to subpoena records as part of any ongoing congressional investigations.
But they are close enough. Even if the high court were eventually to rule against the claims by President Trump, the fact that the justices decided to hear them, in effect, supports his constitutional contention that he had the right to challenge congressional subpoenas in court, or to demand that those issuing the subpoenas seek to enforce them through court.
It undercuts the contention by House Democrats that President Trump committed an impeachable offense by insisting on a court order before sending possibly privileged material to Congress. Even before the justices granted review of these cases, the two articles of impeachment had no basis in the Constitution. They were a reflection of the comparative voting power of the two parties, precisely what one of the founders, Alexander Hamilton, warned would be the “greatest danger” of an impeachment.
So, we have reasoned constitutional analysis that tells us that impeachment is a process by which articles of impeachment (“the charges”) must be delivered by the House to the Senate in a timely fashion and whereby a trial must be conducted in the Senate on those impeachment charges. Removal from office is a decision made solely by the Senate, based on procedural rules decided upon solely by the Senate. We further have reasoned constitutional opinion, by both liberal and conservative constitutional attorneys, that condemns the games that Nancy Pelosi is playing with impeachment and condemns further the very articles of impeachment that Democrats alone voted in favor of.
President Trump appears to be on very solid ground in his positions first to claim executive privilege with regard to the House Judiciary Committee’s subpoenas and second with regard to his criticism of the quid-pro-quo games Nancy Pelosi is playing by withholding the articles of impeachment from the Senate.
The House Democrats pursued their evil purpose and achieved their evil goal – to bring articles of impeachment of President Donald Trump. How proud they must be that they allowed an anger over losing the presidential election in 2016 to Donald Trump to consume their very being, blind their oaths of allegiance to the Constitution, and to corrupt their ability to act as responsible representatives over the most successful free nation in the world to the point that they have made a mockery of our very institution of government and have put the interests of a political party over the best interests of the country. Such a sad day in the history of our country. But the good news is that their part in the process is over. It is now up to the Senate to complete the process. Luckily we don’t have the same level of Trump Derangement Syndrome (or the same level of abject stupidity) in the Senate. Nancy Pelosi may try to continue playing games and rigging the process and twisting the rules and perverting the Constitution, but the truth of the matter is that her part is done and the process outlined by the Constitution requires her to send the articles of impeachment to the Senate for a trial in order that President Trump can have his day and defend himself. If she continues to play games, the Senate can force the matter by simply altering the procedural rules. And we hope that will happen to shut her up and to allow her to finally seek the psychiatric help she so sorely needs.
GianCarlo Canaparo, ““Pelosi Powerless to Delay Trump Impeachment Trial if Senate Does THIS,” FOX News, December 20, 2019. Referenced at: https://www.foxnews.com/opinion/giancarlo-canaparo-pelosi-cant-stop-trumps-trial-in-the-senate
Noah Feldman, “Trump Isn’t Impeached Until the House Tells the Senate,” Bloomberg Opinion, December 19, 2019. Referenced at: https://www.bloomberg.com/opinion/articles/2019-12-19/trump-impeachment-delay-could-be-serious-problem-for-democrats
Alan Dershowitz, “Supreme Court Ruling Pulls Rug Rut from Under Article of Impeachment,” The Hill, December 16, 2019. Referenced at: https://thehill.com/opinion/judiciary/474710-supreme-court-ruling-pulls-rug-out-from-under-article-of-impeachment
Matt Vespa, “Liberal Lawyer: SCOTUS Just ‘Ripped the Rug’ from Under the Democrats’ Trump Impeachment Push,” Townhall, December 20, 2019. Referenced at: https://townhall.com/tipsheet/mattvespa/2019/12/20/liberal-lawyer-scotus-just-ripped-the-rug-from-under-the-democrats-trump-impeachment-push-n2558364?utm_campaign=inarticle