By Keith Whittington

Since the Trump presidency is just one long excursion into the unfamiliar oddities of the American constitutional system, we must now consider whether the Senate is constitutionally obligated to hold a trial if the House of Representatives adopts articles of impeachment.

We would perhaps not be thinking about this if we had not seen so many recent instances of what Mark Tushnet has called “constitutional hardball,” actions that are within the constitutional rules but that violate earlier widespread assumptions about how government officials are supposed to conduct themselves within those rules. If politicians think the stakes are high enough, they are willing to violate long-standing constitutional norms (more disconcertingly, they might also be willing to violate the constitutional rules themselves). Lately, Republicans might have been particularly willing to play constitutional hardball, though there are good reasons to think that Democrats are more than happy to play that game as well.

Most obviously, Republican Senate Majority Leader Mitch McConnell was willing to take the huge gamble of scheduling neither hearings nor a vote on the confirmation of Merrick Garland to a seat on the U.S. Supreme Court in the fall of 2016. Holding the seat empty for months, and through a term’s worth of cases heard by the Court, paid off handsomely when Donald Trump unexpectedly won the presidential election and the Republicans more predictably retained control of the Senate. As a result, Justice Antonin Scalia was replaced not by a Barack Obama or Hillary Clinton nominee but by Neil Gorsuch. The strategy might have backfired if the Garland nomination had been withdrawn and a Clinton White House had put forward a nominee to Garland’s left, but McConnell was instead rewarded for his willingness to play hardball. The unwillingness of a Senate to confirm a Supreme Court nomination in the final months of an opposite-party presidency is hardly surprising, and McConnell was certainly acting within the constitutional rules by obstructing the nomination and waiting out the clock, but McConnell’s refusal to concede that the Republican majority should even go on record to vote down the nomination was unexpectedly aggressive.

With that episode still fresh in the public mind, it is not hard to imagine that McConnell might likewise prefer to play hardball with the procedures of a presidential impeachment, perhaps by simply refusing to schedule a trial of an impeached President Donald Trump and letting the voters resolve the impasse in the fall of 2020. In January 1999, a lame-duck Republican Senate took the opposite approach and rushed through a trial of an impeached President Bill Clinton so as to quickly reach the inevitable conclusion of an acquittal. That Republican Senate was ready to move on and was eager to get the impeachment fight over with. McConnell might instead calculate that an acquittal in 2019 or 2020 is not so inevitable and that regardless of the verdict, a full-blown impeachment trial might politically damage both the president and Republican senators, and so the political fortunes of the GOP would be better served by allowing the impeachment to hang over the election.

Can he do that? The current Senate rules certainly seem to contemplate an orderly initiation of a Senate trial once the House of Representatives has sent notice that the House has appointed managers and is prepared to exhibit articles of impeachment. But the presiding officer of the Senate could creatively interpret those rules to allow the Senate to delay moving forward with a trial, and a simple majority of the senators could vote to sustain such a ruling. Notably, this maneuver would require the senators to go on record with a vote to delay. They could not so easily hide behind McConnell. The necessity of taking such a vote might reduce the incentives for avoiding a trial, and McConnell might have a hard time keeping his majority in line to cast such a vote.

But should Republican senators feel constitutionally free to cast such a vote? The impeachment process is one instance in which legislators can be fairly confident in having the final word on what the Constitution requires. The Supreme Court is unlikely to weigh in to instruct the senators on their constitutional duty regarding an impeachment trial. Some might take that to mean that there effectively are no constitutional rules in that case, but I think that is a mistake. Congress is capable of interpreting the Constitution for itself and acting on its own constitutional understandings, and politicians can be reasonably criticized and held to account for failing to live up to their constitutional responsibilities. Cynics might say that the Constitution is meaningless and irrelevant here, but that would be an unhealthy approach to take if we hope to sustain the American constitutional order, and not actually consistent with our lived constitutional experience.

Should a constitutionally conscientious senator ever agree to table or significantly delay an impeachment trial? The text of the Constitution does create some space for that kind of hardball. The Constitution says that the Senate “shall have the sole Power to try all Impeachments,” and provides some directions on what should happen when the Senate is “sitting for that Purpose,” but the Senate is empowered to have a trial, not mandated to have a trial. If the Senate wants to take action against an officer, it would need to go through the constitutionally specified process of holding a trial, but if the Senate is content to allow an officer to remain in place it is not clear that the Senate needs to follow any particular procedure. Moreover, the fact that the Senate has the “sole Power” to try impeachments emphasizes that the impeachment process is a cooperative one. There is no way to end-run a Senate that does not want to remove an individual from office.

There are circumstances in which it might make sense for the Senate to cut the process short. The Senate has always had the power to adjourn without voting on every article of impeachment presented by the House. When President Andrew Johnson was impeached, the House approved 11 articles of impeachment. After the trial, the Senate voted on only three of them, the three that the proponents of removal thought were the strongest. The House fell one vote short of winning conviction on each charge, and the implications were obvious. The Senate then resolved to adjourn without voting on the remaining articles. In the very first impeachment case, the Senate resolved that it did not have jurisdiction to hold a trial on impeachment charges because Senator William Blount was not an officer subject to impeachment. When Judge George English resigned before his Senate trial, the House resolved that it did not wish to proceed with the prosecution and the Senate voted to dismiss the charges.

The Senate could make quick work of a House impeachment effort. The Senate could entertain a motion to dismiss the charges at the outset of a trial on the grounds that the allegations did not meet the constitutional standard of impeachable offenses, and a majority of the Senate could send the House packing without ever hearing a witness or seeing evidence. If a majority of the senators thought the House was abusing the impeachment power by bringing frivolous charges, there is no reason why the Senate would have to pay obeisance to the House by going through the motions of a pointless trial.

In the late stages of the John Tyler presidency, as the White House and the Senate were at complete loggerheads, the Senate had no interest in confirming the president’s nominees for any office of any significance. Describing the “want of concord” between the White House and the Senate, one senator later recorded that “nominations and rejections flew backwards and forwards as in a game of shuttlecock.” Tyler would sometimes nominate the same individual after he had already been rejected, leading the Senate to reject him again “within the same hour.” If a president can sit in a Senate anteroom scribbling the same name over and over again on a scrap of paper only to have it repeatedly rejected, it is at least imaginable that a similarly stubborn House might repeatedly vote articles of impeachment against an officer even as the Senate refused to budge in its view that the officer was not guilty of any impeachable offenses. If articles of impeachment were ever to fly backwards and forwards between the House and the Senate as in a game of shuttlecock, it is easy to imagine that the Senate would dispense with the necessity of holding a trial each time before informing the House that the charges had not been sustained by the necessary two-thirds majority.

The prosecution and defense do not stand on the same constitutional footing when going before the Senate for an impeachment trial. An impeached officer has a right to demand a trial before being convicted and removed, but the House has no claim on the Senate such that it could demand a trial before an officer is acquitted or charges are dismissed.

The Constitution is flexible enough to allow the Senate to peremptorily reject impeachment charges that the majority of the senators find baseless. Significantly, however, the historical practice and easily imagined examples that result in articles of impeachment being dismissed or set aside all involve a majority of senators going on record with their refusal to convict. If a majority of the senators cannot envision ever entering a guilty vote on an impeachment case, then the result of a trial is a foregone conclusion. That Senate majority might make their will clear rather promptly.

However, Senators ought to be extraordinarily reluctant to acquit an officer on the basis of such minimal proceedings. The constitutional requirement that an officer can only be convicted after a trial recognizes that only an extensive procedure of hearing and evaluating evidence and arguments is adequate to determine the veracity of any charges. The textual requirement that senators take an “Oath or Affirmation” is indicative of the seriousness and deliberativeness with which the senators should take their duty to sit in judgment of articles of impeachment. A senator who refused to listen to any evidence or argument and chose to snooze through an impeachment trial would rightly be condemned for failing to take his constitutional oath and duties seriously. Likewise, a senator who was content to hide behind a majority leader and neither sat for a trial nor recorded a vote would be failing to meet his constitutional responsibilities or fulfilling the office with which he had been entrusted by his constituents. A constitutionally conscientious senator should approach an impeachment with an open mind, prepared to “do impartial justice,” as their oath would have it, prepared to set aside prejudgments and weigh the arguments and evidence that are laid before them. The Constitution itself does not require the House to undertake an elaborate process before voting on articles of impeachment, and the House has not always done so. A Senate trial, by contrast, holds open the possibility of persuasion. Senators should not seek to close themselves off from that possibility.

Individual senators have a responsibility to their office and their constituents to individually evaluate and judge articles of impeachment that have been presented by the House, but the failure to hold a trial or otherwise render judgment on an impeachment would have deleterious institutional consequences as well. If we think of the expectation of the prompt start of a trial upon presentation of articles of impeachment as a constitutional norm, then we might not think that a trial is always constitutionally required but we would still have good reason to think that the norm should generally be upheld.

There is a long history of the Senate refusing to take votes on nominations made by the White House and bills passed by the House of Representatives. Allowing such measures to expire through inaction is a recognized and accepted part of our constitutional practice, though it might frequently be frustrating to those who would prefer to see action taken. There is no such history of ignoring impeachments. Refusing to take action when presented with one would be a significant break from tradition, and as a consequence a significant escalation of institutional and partisan conflict.

Although the Constitution creates a default expectation that individuals will retain their offices unless their opponents clear a high bar to justify their removal, the Senate would be doing more than simply preserving the status quo if it refused to hear charges against an impeached individual. The Senate would be ignoring a legislative chamber’s considered judgment that the impeached officer presented such a danger to the republic that there was an urgent need for his removal. Perhaps the House might behave in such a way that would justify a Senate’s belief that the lower chamber no longer deserved a presumption of being taken seriously, but the Senate should not rush to take such a view or treat the House with such contempt.

A minimal presumption by the Senate of good faith on the part of its constitutional partners both facilitates the continued functioning of the government and nurtures the public legitimacy of all its components. If the Senate were to dismiss the House’s concerns that the republic was endangered, solemnly expressed through a vote of impeachment, then it would unavoidably subvert public confidence in the American constitutional system as a whole and stoke profound distrust in all governmental action. It would be dramatically escalating partisan strife for minimal countervailing gain. The Senate need not be persuaded by the House’s concerns, but it has an obligation as a responsible partner in government to give the House a hearing. The constitutional design of fragmented power does not assume that the various coordinated parts of government will always agree, but it does presume that those coordinate institutions will attempt to find points of agreement and will deliberate together in search of the common good. An institution that stops even trying to do so is broken nearly beyond repair and derelict in its duty to the people.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and the author of the forthcoming Constitutional Crises, Real and Imagined.

Photo Credit: Gage Skidmore under CC BY SA 2.0