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By Frank Bowman

Over at Balkinization, David Super addresses the question of whether, even if the House were to impeach Mr. Trump, the Senate would be obliged to conduct a trial on the articles of impeachment transmitted by the representative of the House, the “managers.” This is a question I discussed with my friends, law professor and Atlantic journalist, Garrett Epps, and constitutional scholar extraordinaire, Michael Gerhardt, a week or two back. Some insights I gained from that conversation follow:

I am largely in agreement with David Super’s conclusion that Mitch McConnell could probably find plausible excuses not to commence a trial, if that outcome suited his political ends. Still, I would add a few more wrinkles.

First, I think that the Constitution’s provisions on impeachment certainly imply a duty by the Senate to address articles of impeachment approved and conveyed to it by the House. However, the Constitution nowhere says this expressly. Moreover, it’s as certain as anything can be that a refusal to act by the Senate could not be appealed by the House to the courts. Thus, action by the Senate is simply a normative expectation, and as we learn daily in the age of Trump, norms carry ever smaller weight.

Second, as Prof. Super observes, there are Senate rules about how impeachments are to be handled, but these don’t settle the question of whether a trial must follow impeachment. My analysis tracks his, but adds a couple of additional points:

  1. The Senate rules say that, once the articles are presented by the house to the senate, “then the Presiding Officer of the Senate shall inform the managers that the Senate will take proper order on the subject of the impeachment”?   But what does “proper order” mean in this context?  If it means only that the Senate will take such notice of the House’s action as it deems appropriate, or is required under its rules, then this notice to the House means no more than, “OK, House, we got this.  We’ll let you know when and if we want to go further.”
  2. The rule says that the Senate must, the day after it receives the articles, “proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.”  But I agree with David that, parsed carefully, this rule seems to draw a distinction between “consideration of such articles” and an actual trial.  For example, it seems quite clear that the rule does NOT mean that a trial must start the day after the articles are transmitted, only that the Senate must “consider” the transmitted articles in some sense.  Ordinarily, this would mean setting the rules and timing for an impeachment trial.  But an aggressive majority leader might conclude that “consideration” extends no further than, for example, an immediate vote without evidence, or more likely, a motion to table.  As to the latter, one would have to read other parts of the Senate rules to know whether tabling articles of impeachment would be possible. 
  3. In any case, as Michael Gerhardt reminded us, even if the Constitution and Senate rules are read to demand some official Senate resolution of articles of impeachment, the proceeding that produces the resolution might not be anything like what we would ordinarily view as a “trial.” Options might include an immediate vote on the articles by the Senate without a formal presentation of evidence or a truncated evidentiary presentation to a committee (which has been the norm for judicial impeachments for some years). The Senate, in his view, has considerable discretion in fashioning its method of addressing House-approved articles.
  4. Finally, the existing rules seemingly could be amended if the Republicans wanted to do that. At first, I thought that wouldn’t be possible because the Senate rules for impeachments are (I believe) “standing rules,” and the Senate rules seem to say that a motion to amend standing rules requires a 67 vote majority. https://fas.org/sgp/crs/misc/IN10875.pdf.  But the same rules were in effect when McConnell killed the filibuster for Sup Ct justices and the Republicans had only a 55-45 majority.  They got around that by having Orin Hatch in the chair declare that the motion to change the rules was in order regardless of the absence of 67 votes for a rules change or even 60 votes for ordinary cloture. https://www.nbcnews.com/politics/congress/senate-democrats-block-neil-gorsuch-s-supreme-court-nomination-n743326 

In sum, if McConnell wants to block or fast-track or trivialize the Senate’s response to House impeachment action, he probably can.