UPDATED: What's The Principled Way For The Senate To Handle An "Impeachment"

During the past week Hugh Hewitt has written a pair of thoughtful articles on impeachment for the WaPo. Hewitt espouses the view that any articles of impeachment sent to the Senate by the House should be rejected--and he explains the mechanism for doing so. He also makes the argument for why this is the best approach, for the good of the Constitution and our republic. I'm going to present his arguments by combing the two article (which are both very much worth reading in their entirety. I know a lot of us are tempted by the idea of having it out in a big Senate trial, calling a million witnesses, etc. Hewitt himself confesses that he, too, is strongly attracted by that idea--and he presents the arguments in favor of that approach. Overall, however, I suspect that Hewitt has it right when he recommends a rejectionist approach.

Here are links to the articles:

The Senate must not legitimize the House’s sham impeachment

How the Senate can stop a purely partisan impeachment

Now here is Hewitt's argument. I have at places taken some liberties with the formatting. I've also omitted ellipses in the interests of, perhaps, smoother reading. Among my omissions are some details of Senate procedure:

There are three paths before Senate Majority Leader Mitch McConnell (R-Ky.) when it comes to any articles of impeachment the House of Representatives eventually sends the Senate’s way. 

One is short: a quick dismissal by the Senate of the House charges. 

One is long: an extensive trial that would let the president and his defenders expose wrongdoing by Democrats and their ”permanent bureaucracy” allies. 

The third — the only approach that is obviously wrong but that may also be the most likely outcome — would be a far more limited trial that would serve only to reward Democrats for their bad behavior before reaching the foreordained conclusion that the president will not be removed from office.  

Those questions greatly benefit from being reframed: What’s in the best interest of the Constitution, the Senate and President Trump? Looked at this way, the arguments for the first or second approaches become clear, along with the risks of the third. 

A long, drawn-out deep dive into what the president has long inveighed against as a rigged system would improve the president’s reelection chances. That would include a look at the activities in Ukraine of Hunter Biden and sweep in findings from U.S. Attorney John Durham’s probe into 2016 election-related controversies. Taking no prisoners and insisting on an accused right’s to put on a full defense, Trump, with the consent of McConnell and the GOP majority, could force proceedings that will turn the tables on his partisan accusers and rebut the idiocy, introduced by the Steele dossier, that he is some kind of “Russian asset.”

There’s a lot of appeal to such a deep dive, and I have advocated it myself. But I am also torn about how to proceed, because there is a substantial cost, which is the legitimization of Rep. Adam B. Schiff’s (D-Calif.) process, already irretrievably compromised by alleged ex parte contacts with the “whistleblower,” secret hearings, and circumscribed rights for the minority and the president. The assault on due process, accelerated by leaks and inflamed by deep wells of hatred for the president in much of the media, is too far advanced to correct.

But it could be rebuked. 

Americans can be counted on to back McConnell if Senate Republicans decide that bogus articles of impeachment do not merit the Senate’s sustained attention. Peremptory dismissal — think of it as a motion for summary judgment — would serve future presidents of both parties even if it would deny Trump the high-profile political theater he delights in and almost invariably has succeeded in dominating since he came down the escalator. I’d love to see a competent defense team unravel Russiagate or Spygate or whatever you call the last three years of guerrilla political war waged by “the Resistance.” 

But the price of defining “high crimes and misdemeanors” down is steep. “That which gets rewarded gets repeated” is far more than a cliche, it’s an iron law of politics. If House Democrats succeed — in their own eyes and the eyes of their base — in getting the Senate to infuse their Star Chamber proceedings with respectability, then future House majorities have a road map for their own vendettas (and fundraising machines). 

McConnell will be assailed by Democrats and their Manhattan-Beltway media elite annex. But the leader will have done the Constitution a great service.

The one path he cannot allow the Senate to follow is to hold a trial in which the House sends over its prosecutors to blather about the president’s telephone call and quid pro quos for a few weeks, after which the Senate, entirely predictably, falls far short of the two-thirds vote needed to convict and remove. That way is all pain and no gain, except for endorsing the precedent of sham show trials.

There is nothing yet revealed by the Ukraine investigation that supports a “yes” vote on any “impeachable offense” by the House, or “offense of any kind” to anyone familiar with the combustible history of politics, foreign affairs and back channels.   

The current House investigation is deeply compromised by secret hearings, selective leaks and what looks to be the first purely partisan vote to impeach from the House since 1868. Given these assaults on fair process and the horrible precedent a purely partisan impeachment would set, it is fair to ask, should the charges that come out of the House be legitimized in any way? 

Kelly D. Johnston is former secretary of the Senate, a former Senate GOP aide and former staff director for the Senate Republican Policy Committee before that. The secretary of the Senate is the chief legislative, administrative and financial officer of the upper chamber.

Johnston says a critical moment will arise as soon as any “Articles” arrive in the Senate, but before any substantive proceedings occur. Under the standing rules of the Senate, the Senate must approve a “Motion to Proceed” to consider the articles. And it is at that moment that senators — even and especially those critical of Trump for other reasons — should think of a future littered with partisan impeachments born of secret proceedings and abuse of the House minority’s rights, as well as the rights of future presidents. 

If House Intelligence Committee Chairman Adam B. Schiff’s (D-Calif.) sham charges aren’t throttled in their crib by Majority Leader Mitch McConnell (R-Ky.), they will birth future similar charades. But McConnell and fellow Republicans, perhaps with support by Democrats willing to brave enormous blowback from the “resistance,” should step up and say, "This far and no farther. We will not put our nation at risk of a future littered with these sort of vendettas dressed in the garb of impeachment. We won’t ever approve a purely partisan Article of Impeachment for trial.” 

Johnston informed me that when then-Majority Leader Trent Lott (R-Miss.) launched the Senate trial of Clinton, on the opening day of the new Congress, Jan. 6, 1999, he did so with a unanimous consent request for the Motion to Proceed. “Not only was there no objection,” Johnston added, “but it was also clearly worked out in advance with the Democratic leader then, Tom Daschle.”

This is where the fork in history will confront McConnell and Republicans. 

Johnston imagined a scenario in which McConnell offered a measure to move forward, either with a full trial or something shorter, and a senator from either party objected. That would be McConnell’s cue to shut the entire thing down. “Under the rules, there would be unlimited debate until the leader files a cloture motion,” he explained. “That triggers an additional 30 hours culminating in a vote.  

“McConnell could first block the filibuster on any motion to proceed and then move to dismiss any article of impeachment with a simple majority.” 

Which means there would be no trial. 

This process — the refusal by the Senate to approve a “Motion to Proceed” — is how the Senate should flush articles of impeachment from the record as it stands today. Invite the House to begin again if it wants to, but using due process if it does, and backed by a bipartisan majority.

UPDATE: Gregg Jarrett has a nice article today that lends support to the notion that the Senate should not dignify Schiff's impeachment "Clown Show" by affording it a hearing:  The Trump impeachment inquiry is already in big trouble. Here's who Democrats have to thank. Concluding paragraphs:

In the court of public opinion, Schiff increasingly reveals himself to be the court jester playing the fool. He presides over an investigatory charade that is anathema to fundamental fairness and due process. 

If the inquiry was equitable, both sides would be able to call their own witnesses. Yet, the House of Representatives passed its impeachment measure giving Schiff the right to veto GOP witnesses. He has already made it clear that he will do so, rejecting a request that the faux “whistleblower” testify. It is clear that other witnesses, including Schiff and/or his staff, will also be rejected. 

To his credit, Sen. Lindsey Graham, R-S.C., has made it clear that if the unidentified informant who precipitated the impeachment "witch hunt" is not allowed to testify in the House, “this thing is dead on arrival in the Senate.” 

In truth, it was DOA the moment Schiff was put in charge of this clown show.

There have been an increasing number of opinion pieces during the last week suggesting that Pelosi is letting Schiff, with his antics, sabotage an impeachment that she opposes.