If the House Passes Articles of Impeachment Solely Based on Political Animus, the Senate Has Several Options
The impeachment craze is in full force. House Democrats are in full-court-press mode and are determined to impeach President Donald Trump.
The grounds for impeachment are sketchy, to say the least, and revolve around the word of a whistleblower whose allegations were based on secondhand information (hearsay) and who is allegedly against the president.
While the House controls the decision as to whether to impeach, the Senate determines the rules regarding a subsequent trial. As such, if the House passes articles of impeachment that appear to be nothing more than a politically motivated effort to oust the president, the Senate should seriously consider delaying the trial or immediately dismissing the case upon motion by the president’s legal team.
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.”
Therefore, the Senate has the sole power to try all impeachments. However, this doesn’t mean that an impeachment trial can’t be quickly disposed of. While the Constitution provides a mechanism under which to prevent, as much as possible, a politically motivated impeachment by virtue of setting a very high threshold to convict and remove a sitting president, this does not necessarily serve to protect against the enormous time and expense that would undoubtedly result from a politically motivated and unwarranted impeachment trial.
The Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials indicate, in part, that when the Senate receives notice from the House that it has appointed managers for an impeachment, the Senate shall inform the House that it is ready to receive the managers for purposes of exhibiting the articles of impeachment.
However, given that the decision of whether or not to try an impeachment rests solely with the Senate, the Senate can creatively “interpret” its own rules, as opposed to amending them.
For example, according to Keith Whittington, professor of politics at Princeton University:
“The presiding officer of the Senate could creatively interpret those rules to allow the Senate to delay moving forward with a trial, and a simple majority of the senators could vote to sustain such a ruling. Notably, this maneuver would require the senators to go on record with a vote to delay.
“The Senate could make quick work of a House impeachment effort. The Senate could entertain a motion to dismiss the charges at the outset of a trial on the grounds that the allegations did not meet the constitutional standard of impeachable offenses, and a majority of the Senate could send the House packing without ever hearing a witness or seeing evidence. If a majority of the senators thought the House was abusing the impeachment power by bringing frivolous charges, there is no reason why the Senate would have to pay obeisance to the House by going through the motions of a pointless trial.”
Of course, while the Senate could consider some of these options, there’s an additional wrinkle when it comes to presidential impeachments, which is the exact role of the chief justice, who presides over presidential impeachment trials pursuant to Article I, Section 3.
While a delay or an early dismissal could lead to risky precedent, the circumstances involving the current president could call for such drastic measures. Congressional Democrats have threatened to impeach Trump from the day he was elected. They brought up the possibility of impeachment with regard to alleged Russia collusion, campaign finance violations, obstruction of justice, emoluments violations, and, most recently, the president’s call with Ukrainian President Volodymyr Zelensky.
To date, there has been no evidence of any impeachable conduct committed by the president. Even more concerning is that House Speaker Nancy Pelosi announced the start of the “formal impeachment inquiry” (which is absolutely meaningless without a formal House vote) without having first reviewed the transcript of the telephone call with Zelensky and/or the whistleblower complaint. The timing of the whistleblower complaint is also suspicious in light of the imminent release of the inspector general’s report(s) relating to Russia and potential FISA abuses.
The framers of the Constitution didn’t intend for the impeachment process to be utilized as a political “weapon,” or to score political points. For example, while congressional Democrats continue to blame the president for engaging in a quid pro quo exchange with Zelensky, they have failed to take any measures against former Vice President Joe Biden and/or other officials who allegedly engaged in conduct that was much more egregious.
There is absolutely no justifiable reason for this type of “selective enforcement” other than a deep-rooted and partisan desire to remove the president.
If senators believe that the House is seeking to impeach the president on frivolous (i.e., political) grounds, the Senate has several options, one of which includes the possibility of dismissing the case upon motion by the president’s lawyers at the start of the trial. If this happens, each senator will likely have to go on the record and to publicly vote.
A decision of this nature could be risky, as it’s unclear how this would play out in the court of public opinion. For example, those who support the president would likely view this decision favorably, while those who fervently oppose him would view this decision with disdain. The main question, however, is how independents and moderates would view it, and what political impact this could have on those senators who publicly voted in support of dismissal.
Finally, if enough senators knew that they would never convict the president in a subsequent trial, would it be worth the risk for them to publicly vote to dismiss the case at its infancy despite the obvious time and expense of a trial, and the devastating impact that it would have on the country and on Congress?
Time will tell how this plays out.
Elad Hakim is a writer, commentator, and attorney.
