By Daniel Cotter*
The formal impeachment inquiry into allegations of President Trump’s dealings with Ukrainian President Volodymyr Zelensky is ramping up quickly. Much has been discussed about the impeachment process and what happens if Trump is impeached. Article II, Section 4 of the United States Constitution provides for impeachment, stating:
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
The Constitution drafters in 1787 then set forth the process for an impeachment of the “President, Vice President and all civil officers,” granting the power to Congress in a two-part process. Article I, Section 2, Clause 5 of the Constitution provides for the role of the House in any impeachment:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Once the House votes for impeachment, the Constitution then transfers the responsibility to the Senate. Article I, Section 3, Clauses 6 and 7 provide:
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.
Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.
Historically, the Clause 6 language that the Senate “shall have the sole Power to try all Impeachments” has been understood to require a trial if the House voted by a majority to charge an officer of the United States. However, like we saw during the Merrick Garland debacle a few years ago, there is no mandate on the Senate to act in the Constitution.
While the current Senate rules provide that upon impeachment by the House, the Senate immediately will conduct a trial, there is no mandate that the Senate move. Specifically, the Senate rules state:
Upon such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, 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.
Senate Majority Leader Mitch McConnell confirmed those rules and the responsibility of the Senate, stating that the Senate “has no choice” but to try President Trump if the House impeached him. Whether McConnell and the Senate would actually do so is an open question, given their past behavior on many historical Senate procedures and rules, including holding a hearing and exercising its “advice and consent” in judicial nominees.
As with advice and consent, the Constitution does not mandate by its words that the Senate actually hold an impeachment trial. As noted above, the Senate has “the sole Power,” but that grant does not require any activity, and McConnell and the Senate could simply revise their current rules or ignore them.
In addition, the Supreme Court has previously considered what constitutes the Senate performing its function to “try all Impeachments.” In Nixon v. United States, 506 U.S. 224 (1993), the Court held that the Article III courts could not opine on impeachment proceedings and that the Senate can, except for the few specifics included in the Constitution, use whatever procedures or form of trial it deems appropriate. So, McConnell and the GOP might start the hearings, then adjourn and never hear, or they might call only the President and have a very short examination, then vote the impeachment articles down.
The impeachment trial of Andrew Johnson might give some insights into the adjournment route. The House filed eleven articles of impeachment against Johnson. After the trial, the Senate decided to vote on the three articles they believed most likely to result in Johnson’s conviction. On each of the three articles, the Senate voted 35-19, one vote short of the required vote. Having failed on two separate days to convict on those three charges, the Senate adjourned. No vote was ever taken on the remaining eight articles of impeachment charged against Johnson.
The Trump team has indicated that even before it gets to the Senate, they might seek refuge in the courts. However, they are wrong on that count because the Constitution gives the courts no role in the impeachment process, as decided in Nixon. This issue is all the more complicated here because, for impeachment trials on the President and Vice President, “the Chief Justice shall preside.” If the courts went against Nixon and got involved in the impeachment process, Chief Justice Roberts would have an inherent conflict.
We will soon see if the executive branch and the Senate follow the rules if and when formal impeachment articles are filed by the House. The Senate might try to short-circuit the process, but that attempt might hurt Republicans come 2020. But even if the House does files articles of impeachment, the Senate has no clause definitively requiring it to hold a trial.
* Daniel Cotter is a lawyer practicing in Chicago. He currently is Co-Chair of the ACS Chicago Lawyer Chapter. He is a frequent writer on the Supreme Court and our judiciary, including on Twitter (@scotusbios) and the author of the recently published book, “The Chief Justices” (Twelve Tables Press).