Why must our presidential impeachment process in the year 2020 resemble the stuff of Alice in Wonderland?

‘You’re nothing but a pack of cards!’ –Alice “Pelosi feels her phony impeachment HOAX is so pathetic she is afraid to present it to the Senate, which can set a date and put this whole SCAM into default if they refuse to show up!” — Trump tweet, 12/19

Talking Heads Have Thrown The Impeachment Proceedings Into A Disarray

Media pundits and experts are claiming there is an “impasse” with the impeachment proceedings. On one side, the House Speaker has held the articles of impeachment in abeyance while the Senate Majority Leader (and presiding officer of the Senate Trial) has said there is nothing for the Senate to do at this time. Meanwhile, the President has taken to a tweet storm, calling the proceedings a “hoax” and asking for a “default” in the Senate. For the American people, the entire proceedings have taken on an Alice in Wonderland type of veneer.

One Harvard law professor and constitutional scholar, Lawrence Tribe, has opined that the House need not transmit its articles of impeachment to the Senate and can simply let the status quo stand. This proposal is simply unconstitutional as it is absurd. An impeachment in the House is tantamount to an indictment or filing of charges. Those charges cannot simply hang in abeyance, as a defendant has a Constitutional right to due process, the presumption of innocence, and the right to cross examine his accusers. These rights are fundamental to the 14th and 6th Amendment of U.S. Constitution. Surely the Constitution still applies to the impeachment proceedings.

On the other hand, another Harvard law professor Professor Noah Feldman, who testified as an “expert” for the House Democrats, now believes the impeachment by the House is not valid unless it is transmitted to the Senate for trial. While somewhat closer to the truth, this result also lacks meaningful precedent. In all previous presidential impeachments, such as those of Presidents Bill Clinton and Andrew Johnson, articles of impeachment were quickly transmitted to the Senate for a trial as soon as the House appointed the managers. A vote was taken by the Senate and both presidents were acquitted of the charges.

A third Harvard law professor, Alan Dershowitz, renown criminal defense attorney, has stated the position that that the Senate can act on its own and hold the trial without awaiting for the articles to be transmitted by the House. This interpretation assumes the the Senate has the standing and authority to start the trial without awaiting the formalities from the House. But this interpretation also lacks precedent or a basis in the rules.

I don’t know what is more troubling — the fact that Congress cannot or will not follow the rules of impeachment — or the fact that three Harvard law professors have taken completely divergent and contradictory views of the impeachment process.

What Do the Constitution and Congressional Rules Say?

Let us quickly revisit the rules to see how this is supposed to play out and dispel some of the popular myths in the media.

The Constitution grants the sole power of impeachment to the House of Representatives. U.S. CONST. art. I, § 2, cl. 5. The House Rules describe procedures for the House to draw up articles of impeachment, vote on those articles, and appoint “managers” or prosecutors to try their case before the Senate. If “articles of impeachment” are approved, the House chooses managers to present the matter to the Senate. A good faith reading of the Constitution and the rules requires the House to transmit the “articles of impeachment” to the Senate after it has chosen managers.

The idea that the House can simply hold the articles of impeachment in abeyance until there is a guarantee of a fair trial in the Senate and agreed upon plan about witnesses and evidence is wrong. The Constitution grants the Senate sole authority “to try all impeachments.” U.S. CONST. art. I, § 3, cl. 6. As such, the Senate thus enjoys broad discretion in establishing procedures to be undertaken in an impeachment trial. The Senate Rules, which govern the impeachment trials in the Senate, authorize the Senate, largely through the “Presiding Officer” or Senate Majority Leader, to accept the articles of impeachment from the House, and set the time for the presentation of arguments, evidence, and witnesses. The Senate is also required to summon the President to trial, although the President is not required to testify pursuant to the 5th Amendment.

So Will Congress Follow the Rules or Engage In More Political Theatrics?

The House cannot simply hold the articles of impeachment indefinitely from the Senate, nor can the Senate simply try the case without awaiting the articles from the House.

The idea that certain Senators can somehow be partial, as cynically suggested by the Senate Majority Leader also flies in face of the oath the Senators are required to take when they are sworn in as jurors in the impeachment trial. The Constitution requires senators to take a special oath or affirmation to participate in impeachment proceedings. It does not specify what the oath must say, though the chamber’s practice has been to require each senator to promise “impartial justice.” Article I, Section 3, Clauses 6 and 7.

Can the House or Senate go to the Supreme Court if they cannot agree on the rules? Good luck. In Nixon v. United States, 506 U.S. 224, 238 (1993), the U.S. Supreme Court rejected a lawsuit challenging the use of a Senate Committee to set the rules and practice for handling the impeachment trial. The Court stated that impeachments were political processes by nature and reasoned that the Framers “did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word “try” as it applies to the Senate’s power to try impeachments. Id at 230. Thus, the Senate enjoys substantial discretion in establishing its own procedures during impeachment trials. Accordingly, the Supreme Court’s role in impeachment proceedings is limited. The Supreme Court Chief Justice presides over the Senate trial, administers oaths, and accepts questions written questions from Senators to be presented during the trial.