The title of my diary is the title of a provocative article in Lawfare.com. I imagine that most here believe, as I do, that if the House impeaches Trump, or anyone else, the Senate is bound under the Constitution to hold a trial, leading to a vote. If 67 or more Senators vote “guilty” the person being impeached is then removed from office. An interesting article written by Bob Bauer, who served as White House Counsel to President Obama, suggests that the Senate is not legally required to hold a trial, and that Majority Leader McConnell could continue to thumb his nose at the Constitution and not have a trial in the Senate, at all. I would encourage people to read Professor Bauer’s full article here:
www.lawfareblog.com/...
Professor Bauer, who is currently the co-director of the Legislative and Regulatory Process Clinic at the New York University School of Law, notes that the Constitution states that the Senate has the “sole power” to conduct an impeachment trial, but does not expressly delineate an obligation to do so.
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 to try any impeachment that the House elects to vote.
It is widely agreed that the Senate has a historical duty to try articles of impeachment, a point Lawrence Tribe makes here;
However, it appears that there are many parliamentary maneuvers by which a trial could be delayed, or avoided entirely. As Professor Bauer states:
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.
Avoiding an impeachment trial would allow GOP Senators from making the politically difficult choice on removal. It has been my view that if Trump were impeached that McConnell would allow any Senator, up for re-election in 2020, to vote guilty, as long as the total votes to remove remained at 66, or fewer. Not having a trial would allow all the GOP Senators to state, or not, how they would have voted on removal without effecting the actual outcome. Because of the immense media response I would expect, if a trial were not held, I imagine McConnell would have to weigh how such a maneuver would impact his own re-election chances. He will be seeking re-election in 2020.
Could the House or Senate Democrats litigate a requirement that the Senate hold a trial? This is a debatable issue, but clearly the Speaker or the House managers of the impeachment would file a lawsuit to compel the Senate to hold a trial. The Senate rules currently state that a trial will be held, but the rules can be changed by the majority. The current Senate rules can be found here:
www.law.cornell.edu/…
So what would the Supreme Court do with the lawsuit trying to compel a trial, once the case reached them? Recently the Court has given great deference to the self-governance of the House and Senate. This was demonstrated in the 9-0 decision in Canning v NLRB (2014) when BHO challenged the ability of the Senate to hold pro-forma sessions, thereby blocking recess appointments. The Court relied on three legal pillars.
In Article I Sec 5 Cl 2 of the Constitution makes it clear that the House and Senate make their own rules and procedures.
Each House may determine the Rules of its Proceedings
In US v Ballin (1892) the Court wrote in its opinion that the Senate’s discretion in its rule making is “absolute”.
In US v Smith (1932) The Court wrote that the Senate’s interpretation of its rules deserve “great weight”.
It’s very possible that the SCOTUS would agree with Professor Bauer that a trial is not mandatory.
Professor Bauer is not claiming that Mitch McConnell will block a trial, or believe that blocking a trial would be in the best interest of Trump, McConnell, the Senate Republicans, or the GOP as a whole, only that in his view, it’s possible. I found that surprising, and worth sharing.