After the House of Representatives’ recent decision to issue two articles of impeachment, it appears the Democrats are having second thoughts. House Speaker Nancy Pelosi (D-Calif.) thus far has refused to transmit the articles to the Senate because Senate Majority Leader Mitch McConnell (R-Ky.) publicly has expressed doubts regarding the merits of impeachment and the need for a Senate trial.
The Constitution, of course, gives the Senate “the sole power to try all impeachments.” While the House typically has appointed “managers” who act as prosecutors in the Senate trial, the manner of that trial is ultimately up to the Senate. Here, as in ordinary criminal cases, pretrial dismissal is an important means of ensuring respect for due process and justice to the accused.
Impeachment as a Quasi-Criminal Trial
Ordinary criminal procedure gives some guidance about appropriate due process for an impeachment trial. Impeachment proceedings closely resemble those of a criminal case, not least by being reserved for specified crimes like treason, bribery, and “other high crimes and misdemeanors.”
In an impeachment, the House of Representatives acts like a grand jury, investigating offenses and determining if there is sufficient evidence to proceed to trial. Like the “probable cause” necessary for an indictment, the first stage of impeachment must meet a lower threshold than conviction. Accordingly, a simple majority is enough for passing articles of impeachment.
Removal is another matter. The Senate acts more like a trial court and “petit” jury. A conviction must be made by a super-majority of two-thirds, and, like a trial court, the Senate also must evaluate whether the proposed impeachable offenses meet the constitutional requirement of “high crimes and misdemeanors.”
McConnell has pointed out the obvious after the initial party-line impeachment vote: “The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.” In response, Nancy Pelosi has criticized him as a “rogue” Senate leader, acting in cahoots with a “rogue” president.
Among other complaints, the House is now insisting on presenting witnesses in the Senate trial. While one questions whether this is going to help their cause, it would also depart from the procedures used in Bill Clinton’s 1999 impeachment trial, where the Senate had the option to consider examining witnesses only after an initial presentation by the House managers. More important, this insistence by the House on dictating the Senate’s procedures is contrary to the Constitution’s grant of power to try impeachments “solely” to the Senate.
Guaranteeing witness testimony would be a great departure from the practice of courts presiding over criminal and civil trials. Far from requiring witness testimony in all cases, due process often requires that a matter be dismissed because of some fatal legal error apparent to the court before a trial is conducted . . . the earlier the better.
Dismissal and Due Process
In other words, courts have the power to dismiss an indictment. Among federal courts, this extends to cases of “selective or vindictive prosecution,” “a defect in the indictment,” and “failure to state an offense.”
Courts also may rule on a case before it goes to a jury and after the prosecution rests, determining that “as a matter of law” no reasonable jury could convict. All of these decisions by courts either limit or dispense with trials altogether.
Trials are expensive to conduct and burdensome to the accused. In the case of impeachment, they also impose a real burden on the country as a whole, leaving the office of the president in limbo while the matter remains in question. As in ordinary criminal cases, the prosecution has no right to insist on a trial when the underlying actions set forth in the indictment are not a crime.
Generally speaking, both civil and criminal trials are rare, not only because many cases are resolved through negotiations—such as plea bargains—but also because the courts are obliged to forego trials when the allegations or evidence presented cannot sustain a guilty verdict. Courts routinely make these decisions before, during, or after a trial.
The Senate has the same authority as the courts in this regard and should dismiss the impeachment articles against President Trump for the same reasons.
In Bill Clinton’s 1999 impeachment trial, Senator Robert Byrd (D-W. Va.) rose and moved to dismiss the articles of impeachment. Both the House and the president’s defense team made lengthy arguments about the propriety of doing so. In that case, unlike here, the question was not whether a crime had been properly alleged, but rather whether an ordinary crime—perjury, in Bill Clinton’s case—met the constitutional standard of a “high crime and misdemeanor.” The motion nearly passed, with 43 senators voting in favor of dismissal.
Like a judge conducting a bench trial, senators in an impeachment trial wear two hats, acting both as the judge of the law and the trier of fact. While senators are oath-bound to be impartial triers of fact, they are not obliged by that oath to suspend their legal judgment in the face of a rank, partisan impeachment. The senators’ oath, in fact, demands they impose “impartial justice according to the Constitution and laws.” They would be violating that oath if they failed to dismiss fundamentally flawed articles of impeachment.
Here the question is chiefly one of law. Due to President Trump’s transparency, all of the relevant facts are already well known.
He called his accusers’ bluff by quickly releasing the official record of his July phone call with Ukrainian President Volodymyr Zelensky. We know that congressionally authorized military defense funding to Ukraine was briefly delayed, but ultimately released. While a discussion of possible corruption in Ukraine involving Hunter Biden occurred, the two counterparts have both said they found the call perfectly reasonable.
We also know that the now-forgotten whistleblower’s summary of the call (the one that got this entire process rolling) misstated what was said in the call. House Intelligence Committee Chairman Adam Schiff (D-Calif.) even had the temerity to make up a fake call dialogue that accorded with the whistleblower’s complaint, but not with reality.
There is no smoking gun here, nor are there new facts on the horizon.
From the articles of impeachment standing alone, the Senate could conclude that no “high crime and misdemeanor” has been sufficiently alleged against President Trump. As I and others have argued, a president has significant power and discretion over foreign policy extending to investigations of corruption. An incidental personal benefit does not turn the exercise of that power into an abuse of office. Indeed, almost anything the president does could be seen as potentially benefiting his personal ambition.
In spite of these obstacles, the Democrats have pressed forward. In the House, they took numerous depositions, heard testimony from partisan law professors, used every adjective for “deep concern” they could muster, and paraded a dozen or so deep-state apparatchiks—including Lt. Colonel Alexander Vindman with his “poor man’s Ollie North” routine—and both the public and the Senate remain unimpressed.
After three years of “resistance,” Mueller’s Russian collusion debacle, and all the other purported bombshells that turned out to be either exaggerated or outright lies, there is no one on the sidelines anymore, nor anyone left to be moved by the Democrats’ performative gravitas.
Time to End the Charade
After expressing the need to get impeachment done immediately, even though the presidential election is less than a year away, Nancy Pelosi and the House Democrats are now delaying the formal transmission of their own impeachment articles. They apparently have even floated the idea of adding some additional charges to dress them up. This all stinks of gamesmanship and desperation, as well as complete indifference to due process.
Just as civil and criminal trials cannot proceed to trial when the allegations of misconduct are fundamentally flawed, the Senate too has the power—indeed, the duty—to dispose of flawed and partisan impeachment articles without conducting a full-fledged trial through the familiar mechanism of a pre-trial dismissal.
From the time of the transition through the present, Trump’s opponents have engaged in what rightly has been described as a coup. It is high time for the Republicans to respond with a coup de grace. If the Senate gave these impeachment articles the contempt they deserve by dismissing them in summary fashion, it would not be an expression of “bare knuckles” political power, but rather an affirmation of due process and the authority of the American people and the president they elected over the deep state.