Some Clarity On An Impeachment Trial

Since the House impeachment vote, coupled with Pelosi's decision not to appoint "managers" for the House's case, we've been treated to a series of arguments about what has just happened. Some--including one of the Dem legal witnesses--have argued that Trump wasn't "really" impeached. Some conservatives have toyed with that idea, as well. The other part of the argument is: How should the Senate treat what has just occurred? My position has been that the House vote ipso facto accomplishes impeachment and that the ball in now in the Senate's court. We get some clarity on that issue today from two sources.

Today, in the Daily Caller, Alan Dershowitz has called on Mitch McConnell to set the ball rolling for a Senate impeachment trial. His argument is that the House vote for impeachment places the issue ipso facto before the Senate. The House cannot stop the Senate from acting--Pelosi Doesn’t Have The Impeachment Power She Believes:

“Whether the House wants it to be in the Senate or not, the matter is now properly before the Senate,” Dershowitz said in a call with the Republican National Lawyers Association. “The presiding officer of the Senate can set a trial date, convene the chief justice and begin the trial. So I don’t think that Pelosi has the power that she thinks she has, or that my colleague Larry Tribe thinks she has.”

...

“I can imagine nothing more unconstitutional than a House impeachment without sending it to the Senate,” Dershowitz said. “It’s just unheard of. The Constitution provides that it is a two-step process, not a one-step process. It doesn’t say the president may be impeached, period, that’s the end of the matter. It says the president may be impeached, and if he’s impeached by the House, the Senate then gets to decide whether he should be removed.

“The idea that a stain would remain on the books, that the president would remain impeached, without an opportunity for the president to get acquitted by the Senate, is plainly unconstitutional,” he added. “It would be as if a prosecutor decided he had insufficient evidence to get a conviction, so he went after an ordinary citizen and said, ‘Look, I’m just going to indict him. Let the public know he’s indicted. For the rest of his life, he will stand indicted. But I have no intention of bringing him to trial. I will deny him his Sixth Amendment right to a speedy trial. I’m going to let the indictment just hang out there.’ Obviously, no judge would tolerate that.”

Dershowitz said the president could seek to have the matter dismissed if it did not proceed to trial, but that it would “probably be a mistake” at this stage. ...

The WSJ's lead editorial makes the same basic argument: McConnell should set a trial date. If House managers don't show, then the Senate can appoint lawyers to present the case and proceed to a trial.

However, GianCarlo Canaparo--a legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies--makes an important point in an article for Fox News: Pelosi powerless to delay Trump impeachment trial if Senate does THIS. Canaparo's point adds to Dershowitz's argument by covering a key procedural detail.

Canaparo basically agrees with Dershowitz--the articles of impeachment are now before the Senate. The House vote accomplished that and there's no taking it back or delaying it--if the Senate doesn't want a delay. The hangup comes with the current state of Senate impeachment rules, which provide that the Senate will not act on an impeachment until the House sends to the Senate its appointed “managers”--prosecutors. Here's Canaparo's solution:

Is the impeachment process truly on hold until Pelosi decides to transmit the articles to the Senate?

Let’s start with the Constitution. Article 1, Section 2 states that the House “shall have the sole Power of Impeachment.” Section 3 states that the Senate “shall have the sole Power to try all Impeachments.” 

Critically, there is no mention of procedure here. So where does this supposed transmittal requirement come from? The answer is the Senate’s own rules. Specifically, its rules governing impeachment procedure. 

The [Senate's] first rule of impeachment procedure states that the Senate will not act on an impeachment until the House sends to the Senate its appointed “managers”— the representatives who will act as the lawyers during the impeachment trial. After the House has presented its managers to the Senate, then the Senate takes the reins and launches its trial. 

So can Pelosi delay an impeachment trial? Yes, as long as the Senate doesn’t change its current rules. But there’s absolutely nothing stopping it from changing this rule, and the Senate should change the rule to prevent this sort of gamesmanship. 

... 

So the Senate should change its impeachment rules as follows: once the House has impeached the president, the Senate shall set a date for trial and shall set a deadline for the House to present its managers to the Senate. If the House fails to meet that deadline, the Senate will either dismiss the articles of impeachment for lack of prosecution or, better yet, vote on the articles immediately in light of the evidence presented to it — in this case, no evidence. 

Having set this boulder rolling, House Democrats should not be allowed now to hold it up. They started this process. It’s up to the Senate to finish it on its terms alone. Not Pelosi’s.

In some ways, I think the WSJ solution may be the best. Present the articles and vote to acquit. That vote would be a judgment on the merit or lack of merit in the articles, rather than a purely procedural move. But I'd be happy with any of these alternatives.