Senate shouldn’t cut an impeachment trial short

After intense speculation over what could happen if the House impeaches President Trump, Mitch McConnell conceded this week that the Senate would have no choice but to hold a trial. Appearing on CNBC, the majority leader announced, “The Senate would have to take up an impeachment resolution if it came over from the House.”

On the question of how the Senate would handle that resolution, however, McConnell remained characteristically circumspect, hinting that an impeachment trial could be cut short. According to reports, a Senate leadership aide similarly asserted that Republicans could move to dismiss the trial shortly after it begins.

Yet ending an impeachment trial prematurely is more complicated than McConnell and his staff let on. The Senate’s Impeachment Rules do not currently authorize a motion to dismiss the trial, and Republicans would need the support of at least some Democrats to pass a proposal to change them. More broadly, dismissing the trial before senators render a verdict of guilty or not guilty violates the spirit of the Constitution and makes little sense politically.

The Senate has adopted 26 rules of procedure to govern its proceedings when sitting on impeachment trials. Last revised in 1986, the Senate’s Impeachment Rules are designed to help its members perform their “solemn responsibility” under the Constitution by facilitating impeachment trials fairly and expeditiously.

Senators periodically adopt additional rules, by unanimous consent or by passing a resolution, that supplement the Impeachment Rules in specific trials. For example, the Senate approved supplementary rules during the Clinton impeachment trial that set aside up to 16 hours at the beginning of the proceedings for senators to question the parties. They also allowed any senator to make a motion to dismiss the trial at the end of that period.

Senators had to include the motion to dismiss in the supplementary rules for the Clinton impeachment trial because it was not already authorized by the Impeachment Rules. Those rules do not mention a motion to dismiss. Neither does the 17-page report from the Committee on Rules and Administration that accompanied the revision to the rules in 1986. Moreover, the ability of senators to dismiss active articles of impeachment against an official of the federal government is not mentioned in the 100-plus-page report prepared by former parliamentarians Floyd M. Riddick and Robert B. Dove in 1986 detailing the procedures and guidelines for impeachment trials in the Senate.

McConnell and his staff may be using “motion to dismiss” in reference to a procedure with a different name. In their report, Riddick and Dove record an instance in the 1930s when counsel for the person impeached moved at the beginning of the trial to strike a subset of the articles of impeachment. However, they also note that the presiding officer ruled that the motion to strike was not in order and that the Senate upheld the presiding officer’s ruling on appeal.

Alternatively, Republicans may be looking to the Senate’s Standing Rules when contemplating a motion to dismiss. Those rules apply if the Impeachment Rules are silent. Given this, a motion to table the pending business (i.e., to end the Senate’s consideration of it) would appear to be in order. Riddick and Dove note that a senator successfully moved to table an order made during Andrew Johnson’s impeachment trial.

Whatever the merits of moving to table an order made within an impeachment trial, moving to table the trial itself would violate the Impeachment Rules that were adopted after 1868. Specifically, cutting a trial short in this manner would violate the stipulation that the Senate shall proceed to the consideration of articles of impeachment upon receipt from the House and that the trial shall continue “until final judgment shall be rendered.”

As Riddick and Dove observe in their report, “The opening address of an impeachment trial is for the purpose of outlining what is expected to be proved. It is not for the purpose of introducing evidence to substantiate the charges.” According to this logic, senators cannot render a final verdict in the form of dismissal at the beginning of an impeachment trial.

Of course, the Senate is entitled to change its rules of procedure at any point. Republicans may use the so-called nuclear option to do so over Democrats’ objections. However, they should reconsider doing so because cutting an impeachment trial short is contrary to the spirit of the Constitution and undermines the reasons why the Senate was given the awesome responsibility in the first place.

Alexander Hamilton noted in Federalist 65 that the Senate was chosen to serve as the court of impeachment because its members were endowed with the necessary courage and possessed the “credit and authority” needed for “the execution of so difficult a task” as determining the guilt or innocence of the president. Abdicating that responsibility by moving to dismiss a trial affirms Hamilton’s fear that the parties would “enlist all their animosities, partialities, influence, and interest on one side, or on the other.” The danger, according to Hamilton, is that when viewed in this way, “the decision will be regulated more by the comparative strength of the parties, than by the real demonstration of innocence or guilt.”

Senators have, admittedly, shown little concern for either the meaning or spirit of the rules in recent years. Their behavior suggests that senators no longer see the rules as reliable goalposts that introduce predictability to an otherwise uncertain and uncontrollable process. Instead, senators interpret the rules to mean whatever they want them to say in a given situation.

Yet even in a world where the rules have lost all meaning, Republicans should nevertheless refrain from moving to dismiss an impeachment trial before a verdict can be rendered. If the trial proceeds and Trump is found not guilty (something likely to happen given the two-thirds majority required to form a guilty verdict), the president is acquitted. If, on the other hand, Republicans move to dismiss the trial immediately after it has begun, they will have denied senators the opportunity to acquit the president. The result will be a lingering cloud of suspicion that will hang over the president and Senate Republicans.

Instead of changing the rules to cut an impeachment trial short, Republicans should let it proceed. The worst that could happen is that after reviewing the evidence, a broad bipartisan majority decides that the president should be impeached. Regardless of the outcome, allowing the process to play out will strengthen our institutions and help renew public faith in the Constitution.

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Topics: Legislative Procedure