December 19, 2019
The Unbearable Incoherence of Senate Obstructionism
Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus, The Ohio State University Moritz College of Law, and Distinguished Scholar in Residence, NYU Law. Member, ACS Board of Directors and ACS Board of Academic Advisors.
After the House of Representatives voted two articles of impeachment on Wednesday against Donald J. Trump, Speaker Nancy Pelosi announced a decision to delay sending those Articles to the Senate. Senate Majority Leader Mitch McConnell has made clear his preference for getting a brief impeachment trial over and done. In rendering the start of the trial at least temporarily uncertain, the postponement thus appears to be a strategic move to pressure Senate Republicans to allow subpoenas for witnesses and documentary evidence. McConnell has resisted calls for such additional factfinding, and Pelosi has said the delay is simply to help insure that she has chosen impeachment managers for the House well suited to the sort of process the Senate intends to pursue.
McConnell’s defense for opposing new witnesses is that it was the House’s job, not the Senate’s, to determine the facts that would conclusively demonstrate Trump’s guilt or innocence. Investigation, according to McConnell, is solely the job of the House.
Collusion between the White House and Senate Majority Leader Mitch McConnell in planning the Senate impeachment trial has already raised questions as to how Senate Republicans view their constitutional role. McConnell’s dismissing the Articles as “shoddy” is of a piece with statements by Senate Judiciary Committee chair Lindsey Graham that he is “not trying to pretend to be a fair juror” and would not read the transcripts of House witness testimony because “I’ve written the whole process off. . . . I think this is a bunch of B.S.” Although Senate trial rules require the impeachment jurors to take an oath to do “impartial justice,” McConnell has confessed, “I'm not impartial about this at all.” One wishes Senator Lindsey Graham would introduce McConnell to former Congressman Lindsey Graham, who bemoaned, during the run-up to the Clinton impeachment, that “[p]eople have made up their minds in a political fashion that will hurt this country long-term.”
McConnell’s statements, however, inaccurately conflate the House role in impeachment—in essence, an indictment—and the Senate’s role in actually conducting a trial. Impeachment is a civil and not a criminal process, as recently reaffirmed by House Judiciary Committee staff. Yet to some extent, the respective roles of the House and Senate can usefully be analogized to the roles of a grand jury and trial court in criminal proceedings. Grand juries may indict based on a finding of probable cause, that is, on a determination that there is sufficient evidence to warrant a trial. Trial courts do not exclude evidence on the ground that it was not presented to a grand jury.
Just as with a grand jury and a trial court, the different fact-finding roles of House and Senate are reflected in the degree of consensus required for deciding the outcome of their respective tasks of decisionmaking. In the criminal process, a grand jury may indict without unanimity; criminal jury verdicts in most jurisdictions are required to be unanimous. In the impeachment process, the House equivalent of an indictment requires concurrence only by a majority of representatives. Conviction in the Senate and the consequent removal from office require a vote of two-thirds. These differences recognize that the fact-finders confront different tasks in the two settings. The differences are also appropriate given that conviction—whether on impeachment or on indictment—carries far graver consequences than even solemn accusation.
McConnell can also not determine unilaterally whether witnesses may be called. In a trial of the President, it is the Chief Justice of the United States who presides. Under the Senate’s impeachment rules, “the Presiding Officer on the trial may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy of evidence and incidental questions, which ruling shall stand as the judgment of the Senate.” The rules further set out the precise text for testimonial subpoenas.
Whether these rules will actually govern is uncertain. The Senate may vote on a new set of rules, which seems an unlikely prospect. And even if the current rules are maintained, they permit individual Senators to call into question the rulings of the presiding officer—that is, the Chief Justice—which would then be put to a vote of the Senate. It is uncertain how a majority of the Senate would vote on procedural matters.
The procedural stance of the lead Republican actors has been peculiar throughout the impeachment investigation. House Republicans insisted they were being excluded from secret hearings, even though Republican committee members were not only attending those hearings, but questioning the witnesses. President Trump complained bitterly that House Democrats were denying him the opportunity to defend himself and then declined their invitation to do so. Against that background, it should perhaps be unsurprising for McConnell to complain that fact-finding has heretofore been insufficient, but that no further fact-finding should occur. Yet votes by Republican Senators to preclude witnesses would be politically more difficult than ultimate votes to acquit, especially were the Chief Justice to approve the Democrats’ requested subpoenas.
In Federalist No. 65, Alexander Hamilton made the case why the Senate was the ideal institution for trying impeachments. “Where else than in the Senate,” he asked rhetorically, “could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?” Hamilton would not have recognized in today’s Senate—at least thus far—the qualities of dignity, independence, and impartiality he anticipated. The majority seems far too “awed and influenced” by the President whose excesses they are supposed to help check and balance.