IMPEACHMENT - Where Do We Go From Here?
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."