On December 18th, the House of Representatives approved two articles of impeachment against President Trump. After that, as we have all been taught, the Senate is supposed to take over the impeachment process based on their Constitutional right to try all impeachments. But, of course, that would be too simple.

As you no doubt have heard, the House is holding off on taking their final required impeachment steps of submitting the articles to the Senate and naming the House managers who will prosecute the case. The logic behind the delay is that House Democrats are withholding the articles until they receive assurances that the Republican controlled Senate will conduct a thorough and fair trial process, including calling witnesses, rather than a quick, dismissive one that the White House and many GOP Senators would prefer.

This strategy begs the question: do articles of impeachment expire after being approved within the House? The short answer is no. Other than outlining broad roles of each chamber, the Constitution is famously vague on matters of impeachment, leaving many of the details to be decided within Congress. And House rules do not contain any deadline or expiration clause on the submission of articles. Each chamber sets their own rules on how to conduct their own internal processes, including on matters of impeachment. The rules of one chamber do not apply to the other, just as the family rules in your neighbor’s house have no bearing on yours. So when you hear some arguing that the Senate rules suggest the House must “immediately” submit the articles after being adopted (which is itself a questionable reading of the Senate rules), you should immediately think “the House doesn’t play by the Senate’s rules.” 

And as an additional fun fact, impeachment proceedings, including adopted articles of impeachment do not even expire at the end of a Congress. They can carry over, and they have in previous impeachments, including of President Clinton. According to the House practice manual, “the articles of impeachment against Judge Alcee Hastings were presented in the Senate during the second session of the 100th Congress (100–2, Aug. 3, 1988, p 20223) but were still pending trial by the Senate in the 101st Congress, when the House reappointed managers (101–1, Jan. 3, 1989, p 84). The articles of impeachment against President Clinton were presented to the Senate after the Senate had adjourned sine die for the 105th Congress, and the Senate conducted the trial in the 106th Congress.”

So, then, other than as leverage for trial process concessions, what are other potential reasons for the House holding off on sending the articles? Here are a quick five from a recent Twitter conversation of mine:

  1. Democrats have a very easy and relatable process argument in their want to have a fair trial. The outright and explicit promises of 100% White House coordination have rubbed many lawmakers and voters wrong, especially in what they expect of a trial. Even the fact that many GOP Senators want to dismiss the trial as quick as possible goes against their talking point that the entire impeachment process has gone far too fast.
  2. The entire impeachment process is clearly annoying the President. He has been relentless on Twitter decrying the “sham process.” Democrats aren’t in much danger of losing support from folks who already back impeachment, so they are likely just fine with it distracting the President from issues he can claim victory on (such as the recent trade deal, for example). 
  3. We are still learning new information related to the Ukraine matter, all of which puts more pressure on the Senate to call relevant witnesses. Leaks, fantastic reporting, FOIA-ed emails are all still coming in regularly, giving a more complete picture of who knew what and when. Plus, court cases regarding congressional subpoenaed witnesses are still working their way through the process. Holding up the trial gives more time for favorable rulings to come back.
  4. The case for impeachment is stronger now than the day the public hearings concluded. Because of point three above, we know more now than we did even after the formal investigation concluded. Because the House was denied so much relevant information and so many relevant witnesses, it is still very likely there is a lot of evidence to still uncover that strengthens the House’s case (which will be tried before the Senate). 
  5. Getting GOP Senators on record and camera dismissing the process and their role in it will make for great campaign advertisements for Democrats.
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Topics: Legislative Procedure