Saturday, December 21, 2019

The Ins and Outs of Delaying a Senate Impeachment Trial - Joseph Klein

by Joseph Klein

What the Dems are up to -- and what the Constitution says about it.

After her Democrat-controlled House of Representatives approved two articles of impeachment against President Trump Wednesday night, Speaker Nancy Pelosi said that she might just wait awhile before sending the articles over to the Senate for trial. “We will make our decision as to when we are going to send it when we see what they are doing on the Senate side,” Speaker Pelosi said. “So far, we have not seen anything that looks fair to us.” The House Democrats want the Senate to call the witnesses who House Intelligence Committee Chairman Adam Schiff and House Judiciary Committee Chairman Jerrold Nadler failed to call during their sham hearings. In their rush to impeach, they were too impatient to wait for a court decision compelling the witnesses to testify.

Senate Majority Leader Mitch McConnell responded Thursday morning to the House’s impeachment process and the latest delay tactics.  He said that “House Democrats may be too afraid to even transmit their shoddy work product to the Senate.” In a further dig, the Senate Majority Leader added, "Looks like the prosecutors are getting cold feet." He noted that the same Democrats who stressed the urgency of impeaching President Trump immediately now seem "content to sit on their hands."

Senator McConnell excoriated "Speaker Pelosi's House” for conducting “the most rushed, least thorough, and most unfair impeachment inquiry in modern history." He charged the Democrats with exhibiting “partisan rage at this particular President,” creating “a toxic new precedent that will echo well into the future."

Speaker Pelosi once again displayed her partisan rage when she went out of her way to personally insult Senator McConnell, calling him a "rogue leader." She continued to insist at a Thursday morning press conference that, before the House moves forward with appointing its prosecution managers, it must first “see the process that is set forth in the Senate.” In other words, the House Democrats want a veto power over the Senate trial process. Like petulant children, they threaten to take their marbles and go home unless they get their way. Speaker Pelosi was testy when pressed by reporters.

The House Democrats most likely got their idea to delay sending their articles of impeachment over to the Senate from Harvard Law School’s Professor of Constitutional Law Laurence H. Tribe. Professor Tribe has been a strong advocate for impeaching President Trump. Nevertheless, in an op-ed column he wrote for the Washington Post, Professor Tribe recommended delay in sending the impeachment articles to the Senate until there is clarification of the Senate trial rules. “This option needs to be taken seriously now that Majority Leader Mitch McConnell (R-Ky.) has announced his intention to conduct not a real trial but a whitewash, letting the president and his legal team call the shots,” Professor Tribe wrote. He then disputed any constitutional objections to such a delay strategy. He opined that “the House, whose historical role is to prosecute articles of impeachment in the Senate after exercising its ‘sole’ power to impeach, is under no affirmative constitutional obligation to do so instantly.”

Professor Tribe’s partisanship has clouded his judgment on the Constitution’s delegation of impeachment and trial powers to the House of Representatives and the Senate respectively. So, let’s educate him on some elementary points.

Article I, Section 2 does indeed say that the House of Representatives “shall have the sole Power of Impeachment.” The House exercised its sole power of impeachment Wednesday night. It’s constitutional role in the process is done. Now it’s the Senate’s turn. But Professor Tribe says not so fast.

Relying on Article I, Section 5 of the Constitution that says each legislative chamber sets its own rules, Professor Tribe tweeted that “It’s up to the House when and how to prosecute its case in the Senate.”

Yes, the Democrat-controlled House was free to set its own one-sided rules governing its own impeachment process. That was its constitutional right, despite having exercised that right so irresponsibly in this case. But Professor Tribe neglected to mention the power of the Senate to decide when and how it will try impeachment cases. Article I, Section 3 provides that “The Senate shall have the sole Power to try all Impeachments.”

The current Senate Rules of Procedure and Practice regarding impeachment trials set out an order of proceedings. The process in the Senate would begin currently under these rules with notice received from the House that it has selected its managers to conduct the impeachment against the president, who are directed to carry the articles of impeachment to the Senate. Speaker Pelosi and her cohorts are trying to exploit these Senate rules by delaying the rules’ trigger for Senate trial action. However, there is no constitutional requirement that the Senate must wait to act until the House formally names its prosecution managers and presents its articles of impeachment to the Senate. The Senate alone has the power to set and to change its own rules.

If the House Democrats persist in dragging their feet after rushing to complete their own rigged impeachment process, the Senate majority needs to consider its options. By majority vote, the Senate could set a firm date by which the House must provide notice of its appointment of managers and deliver its articles of impeachment. If the House refuses to comply with this deadline, the Senate could then immediately vote to dismiss the charges against President Trump on the grounds that the House accusers failed to prosecute their case in a timely fashion.

In his op-ed column, Professor Tribe referred to a Supreme Court decision involving the public’s constitutional right to observe a criminal trial. He meant to use the case to bolster by analogy his argument for the House’s constitutional right to hold back sending its impeachment articles to the Senate until it is assured that the Senate will act fairly. However, the House does not get any say in how the Senate conducts its impeachment trials. If this constitutional law professor wants to use analogies, he should start with the Sixth Amendment’s guarantee that in all criminal prosecutions the accused shall enjoy the right to a “speedy” trial.

That said, perhaps the Democrats should be permitted to dig the hole in which they find themselves even deeper. Senator McConnell said, “'It's beyond me how the Speaker and Democratic Leader in the Senate think withholding the articles of impeachment and not sending them over gives them leverage. Frankly, I'm not anxious to have the trial. If she thinks her case is so weak she doesn't want to send it over, throw me into that briar patch.”

The House Democrats were already witnessing a decline in public support for their rush to impeachment. Delaying the final resolution of the impeachment charges they rushed through the House will leave the House Democrats even more exposed as rabid, hypocritical partisans. The voters will render their verdict on November 3, 2020.

Joseph Klein


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