The Senate Should Change Its Rules on Impeachment

The Constitution gives the Senate flexibility on whether and how to hold an impeachment trial.

Now that the House has launched an impeachment probe of President Donald Trump, the Senate should reform its antiquated rules for the looming trial. Under current procedures, a trial produces the worst of both worlds. If the House has a flimsy case, the Senate must still put the country through the wrenching, divisive political spectacle without any opportunity to dismiss the case. But if the House has a strong case, senators must sit silently by without any chance to participate directly in the trial. Allowing a real trial will improve the decision-making over whether to fire Trump and will make the Congress more responsive and accountable to the American people.

With House Democrats suggesting a swift march to impeachment by the end of the year, senators can attend to the defects revealed by President Bill Clinton’s 1998 trial. Those rules give senators a passive role: They cannot reject the House’s decision to send an impeachment over, they must sit and listen to House prosecutors and White House defense lawyers without making a peep, they never see witnesses or documents, and they never make arguments over the facts or the law of conviction, particularly the meaning of “high crimes and misdemeanors.”

Senate majority leader Mitch McConnell announced this week that the Senate will automatically hold the trial if the House impeaches. Some conservative commentators argue that Senate Republicans should instead slow-walk the process. Perhaps they could repeat their success in holding open the seat of Supreme Court Justice Antonin Scalia by refusing to schedule a vote. If Republicans could delay indefinitely, or at least until after the 2020 elections, Trump might never face removal from office at all.

But all parties seem to assume that the Constitution requires the Senate to hold a trial, even if — as we saw in the 1998 Clinton impeachment — it essentially consumes all of the nation’s political attention to the detriment of other pressing national problems. This ignores the Constitution’s assignment of roles to the House and Senate. Impeachment requires two steps. The House starts the process by “impeaching” the president on a charge of treason, bribery, or some other “high Crime” or “misdemeanor.” This is akin to a bringing a criminal charge. The Senate has “the sole power to try” the case. The constitutional text underscores that the Senate plays a judicial role by including the word “try,” requiring the chief justice to preside at the president’s trial, and referring to “the Party convicted” if the Senate decides to remove the president from office. Removal requires an affirmative vote by two-thirds of the senators present.

Nothing in the text of the Constitution says that the Senate must consider a House impeachment promptly, or even at all. The Senate could postpone consideration of a House impeachment indefinitely — say, until after the 2020 presidential election. Just as a court need not schedule a trial upon a prosecutor’s wishes, so the Senate can suit its own convenience, not that of the House. Or the Senate could simply vote to reject the case, much as a court can find that a plaintiff cannot win its case, even if all the facts are accepted as true, because it cannot meet the requirements of the law. The Senate has delayed consideration of actions by other branches of the government, such as refusing to consider treaties submitted by the president for advice and consent, sometimes for years.

Read the rest from John Yoo HERE.

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