Rule Based Impeachment

In an intramural tiff, Harvard prawfs Larry Tribe and Noah Feldman have taken to the twitters.

Until the current kerfluffle, the process of impeachment had been fairly unremarkable. It wasn’t a matter of coming up with imaginative means of circumventing the rules of the game, whether voting but holding would somehow manage to both impeach a president while simultaneously precluding the Senate from trying the impeachment.

Tribe is in his comfort zone, claiming he can have it both ways, with the president impeached since the vote was held and Articles approved, but by not “sending” it to the Senate, precluding the Senate’s ability to move impeachment forward. There are a list of things that are supposed to happen, the House naming its managers to try the case, the Senate getting some “official” notice of impeachment and the Chief Justice walking over to preside.

But all of these things exist in some squishy academic world. There are, at least at the moment, “rules” about how this matter should proceed, as enacted by the Senate.

The Senate’s impeachment rules were adopted in 1986. Rule 1 provides that impeachment process begins in the Senate “[w]hensoever the Senate shall receive notice from the House of Representatives that managers are appointed on their part to conduct an impeachment against any person and are directed to carry articles of impeachment to the Senate.” At that point “the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment, agreeably to such notice.”

Rule 2 then explains that “the Presiding Officer of the Senate shall inform the managers that the Senate will take proper order on the subject of the impeachment” after the “the managers of an impeachment shall be introduced at the bar of the Senate and shall signify that they are ready to exhibit articles of impeachment.”

Pursuant to Rule 3, after “such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.”

Of course, rules are made to be broken, or in this case, changed, modified, amended or suspended by a majority vote of the Senate. Because these aren’t constitutional mandates, but just a bunch of rules made up back when people took such things seriously. But now, with Tribe coming up with more imaginative ways to game the rules so as to provide the Democrats in the House with “leverage” to force Senate Majority Leader Mitch McConnell to acquiesce to their (frankly reasonable) demands, the assumption that these rules will hold, remain in force and somehow constrain the Senate to sit there with its Republican thumbs discretely hidden in a certain orifice, seems aspirational at best.

Whether McConnell wants to change the rules is another matter. He may be fine waiting out the clock, assuming there’s a clock to wait out since the Constitution is silent on that as well, as the Articles of Impeachment may have worked the #Resistance into a frenzy, but haven’t moved the dial much on the Trumpian side of the playing field.

As Josh Blackman says, the assumption that the subconstitutional rules somehow dictate the legitimacy of this constitutional process creates a curious, if academic, scenario.

The rule I proposed above would trigger something of a Schrödinger’s impeachment–the President is simultaneously impeached, and not impeached, depending who you ask. That is, the House says “not impeached” but the Senate says “impeached.” Moreover, the Senate trial could begin before impeachment managers were even appointed. Would such a Senate rule be constitutional?

Except as Tribe says, Trump is both impeached and not by the House as well. They get the benefit of having voted for Articles of Impeachment while also enjoying the benefit of a “pocket veto” by refusing to acknowledge that C-Span can be trusted.

The House would likely argue that the Senate rule is unconstitutional. That is, the President is not impeached until the House says he is impeached. And the House would argue that the act of impeachment is not final unless, and until the House deems it final. Under the current framework, the House would have to appoint managers, and transmit the articles of impeachment. This position would flow [from] Article I, Section 2, which gives the House the “the sole Power of Impeachment.” The phrase “sole” suggests that the House, and not the Senate, decides when an impeachment is complete.

Is the president impeached when Articles of Impeachment are voted and Speaker Nancy Pelosi bangs her big gavel and, in her stentorian mom voice, announces it to be so, or does the House get to create additional rules, such as the Minister of Funny Walks carries a silver platter upon which the articles rest from one side of the capital to the other?

And what would the House do if Mitch McConnell called Nancy and C.J. Roberts and left a voice mail, “we’re holding an impeachment trial starting Monday at noon. Be there or be square”?

11 thoughts on “Rule Based Impeachment

  1. phv3773

    Pelosi is only trying to expose McConnell to a little adverse publicity, and the Senate rules give her a bit of cover. The delay is unlikely to last past the holidays during which the Senate is going to be in recess.

    1. SHG Post author

      Given that nothing seems to move the dial for either side, this is more to keep prawfs and pundits off the streets at night. It’s not doing much for people who go to work everyday.

  2. Richard Kopf


    The delicious irony of the Senate suing the House in federal court, probably by way of seeking a writ of mandamus, to deliver the Articles makes me tingle. I can’t remember when I last tingled. So, I am very appreciative. This just keeps getting better.

    All the best.


    1. SHG Post author

      In the alternative, the House suing the Senate (also mandamus) to stop the trial from doing forward until the Minister of Funny Walks appears at their door.

  3. B. McLeod

    So, impeachment was urgently necessary to alleviate the alleged Trumpian peril, but now the House itself is blocking it, out of concern the Senate will not convict. Either way, it doesn’t accomplish anything. This is stupid.

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