The Senate Should Change Its Rules on Impeachment By John Yoo
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.
But the Senate under its own rules has chosen to give up its constitutional flexibility. Those rules state that upon receiving the House’s articles of impeachment, the Senate must “proceed to the consideration” of the articles. It must remain in session every day “until final judgment shall be rendered.” These rules senselessly require the Senate to move immediately to a trial no matter how meritless or partisan the House’s case for impeachment. Suppose the House impeached the president for a simple difference over foreign policy where the president had done nothing wrong; even then, the Senate would have to go to a trial that would consume all of the air in our nation’s political system for months.
Still, the Senate remains master of its own procedures. Because each house of Congress enjoys unilateral control over its own procedures, the Senate can structure its trial role as it sees fit. In the Walter Nixon case (1993), the Supreme Court also made clear that federal courts will not review Senate impeachment procedures. When sitting as a court trying an impeachment, the Senate is the supreme court.
Because a simple majority can change its rules at any time, Republicans can establish a new rule to require a vote to begin an impeachment trial, rather than allowing one to begin automatically. Republicans recently have used their power to change Senate rules, such as ending the filibuster for Supreme Court nominations. The same goes for Democrats, who earlier ended the filibuster for lower-court nominees.
Those who believe that the House may produce strong grounds to impeach the president should also wish to reform the current process. Under the existing rules, individual senators cannot speak. They never question witnesses, never test documentary evidence, and never interpret the law. They never debate the meaning of “high crimes and misdemeanors.” While silence may treat senators like jurors, it also curbs debate and diminishes political accountability. A trial provides the American people — through the lens of the Senate — the opportunity not just to see but to judge the weight of all of the factual evidence and the legal arguments against President Trump. Under current Senate rules, though, a trial amounts only to a trailer of the House impeachment hearings.
The political effects of changing the current rules are harder to assess. House Democrats are driving impeachment as quickly as possible. They fear that Trump will be reelected if they do not remove him swiftly. Representative Al Green (D., Texas) admitted, “I’m concerned that if we don’t impeach this president, he will get reelected.” But if the House rushes to judgment, Senate Republicans should have the ability to treat a House impeachment with the same seriousness simply by ignoring it. Why must Congress thrust aside measures on gun control or economic growth for a trial if the Republican Senate will acquit Trump anyway?
The Democrats would raise a hue and cry about changing the Senate rules in the middle of the game. But Republicans too may have a political desire to hold a trial, which would force Democrats to vote on removing a sitting president for the first time in our 230-year history. Even if Senate Republicans dismiss the case, the people will have the chance to render a direct verdict in the 2020 elections, which is still the Constitution’s primary mechanism for removing presidents who abuse their powers.
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