Constitutional Connections: Separation of Powers, Partisanship and the Trump Impeachment

This column originally appeared in The Concord Monitor.

Our constitutional system divides power horizontally, among the three branches of the federal government, and vertically, between the federal government and the states. We refer to the former division as our “separation of powers” and the latter as our “federalism.”

The framers designed the Constitution in this way because they believed that politicians, like people generally, tend to be self-interested and lacking in virtue. They thought that the structural checks and balances imbedded in the system would prevent “factions” (think “interest groups”) from seizing power and imposing their will on the rest of us.

They also thought that the constant striving by politicians to press the advantage of their own governmental branches (which they called “departments”) would force compromise, maintain balance and dilute factional power.

The framers’ expectations regarding the virtue of politicians have been amply confirmed over time. But their expectation that politicians usually would seek to advance the interests of their own governmental departments, which is a central premise of separation-of-powers theory, has not.

Partisanship, a type of factionalism whose form and nature the framers did not fully anticipate, has time and again trumped (if you will pardon the pun) departmental loyalty.

Consider how the impeachment of President Trump is playing out. Put to the side for a moment the allegations regarding the president’s solicitation of foreign interference in our 2020 presidential election, which are set forth in the first article of impeachment charging an abuse of power.

Focus instead on the second article of impeachment. That article charges the president with unlawfully obstructing Congress by directing executive branch offices, agencies and officials not to comply with subpoenas issued by the House of Representatives in furtherance of the “sole Power of Impeachment” conferred upon it by article I, section 2 of the Constitution.

Congress’s power to impeach and remove a corrupt president, and its more general authority to conduct oversight of executive branch officials tasked with carrying out legislative directives, are among the most important tools for preserving its constitutional power and checking the executive branch.

Therefore, if the framers were correct in assuming that politicians’ primary allegiance would run to their governmental departments, one would expect widespread congressional support for, if not the second article of impeachment itself, then at least its animating principle: that the president should provide reasonable cooperation with Congress when it exercises a constitutionally authorized power.

But this has not occurred. Not one member of the president’s political party in the House of Representatives voted for the second article of impeachment or voiced support for the principle it seeks to vindicate.

Moreover, Senate Majority Leader Mitch McConnell has made it clear that partisanship, rather than upholding congressional authority or discharging constitutional responsibility, will inform his approach when the Senate exercises the “sole Power to try all Impeachments” conferred upon it by article 1, section 3 of the Constitution.

Sen. McConnell has expressed an unwillingness to call witnesses at the Senate impeachment trial and an eagerness to deliver a quick acquittal.

He also stated: “Everything I do during this [impeachment trial], I’m coordinating with the White House counsel. There will be no difference between the president’s position and our position as to how to handle this to the extent that we can.”

And he later added: “I’m not an impartial juror. This is a political process. There’s not anything judicial about it. 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.”

Compare the approach Sen. McConnell contemplates with the substance of the oath he will swear when the Senate trial of President Trump commences: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment . . . now pending, I will do impartial justice according to the Constitution and laws: so help me God.” (Article 1, section 3 expressly requires that senators “be on Oath or Affirmation” while trying articles of impeachment.)

You are not alone if you perceive an inconsistency.

So, what is to be done when our political leaders exceed constitutional limits or fail to discharge constitutional obligations, and partisanship prevents the proper functioning of constitutional processes to hold them accountable?

The obvious answer is nothing unless and until “We the People” communicate in overwhelming numbers that we value constitutional fidelity more than partisan victories. The primary (but by no means exclusive) way we can send this message is with our votes this fall.

But does a sufficient percentage of us actually prefer principled constitutional governance to the raw exercise of partisan power?

The upcoming election will be a referendum on this question. I am convinced, however, that an overwhelming majority of us would hold this preference if we were able to cut through partisan propaganda and soberly evaluate the downsides of governance by the victors in all-out partisan war.

So, how can we overcome the partisan propaganda?

This is an enormous problem. But a renewed national commitment to robust civics education would be a good place to start.

In his 2019 Year-End Report on the Federal Judiciary, Supreme Court Chief Justice John Roberts argued powerfully for just such a recommitment. “We have come to take democracy for granted, and civic education has fallen by the wayside,” Roberts wrote. “In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.”

He also opined: “Each generation has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people but the tools to understand and improve it.”

Hear, hear. “We the People” need to understand that, notwithstanding its many undeniable flaws, governance through our constitutional order is far preferable to governance by crude tribal partisanship. And a commitment to civics education is necessary to such an understanding.

(John Greabe teaches constitutional law and directs the Warren B. Rudman Center for Justice, Leadership & Public Service at the University of New Hampshire Franklin Pierce School of Law. The opinions he expresses in his “Constitutional Connections” columns are entirely his own.)

The Citizens United Decision: Another Date That Will Live in Infamy

On January 21, 2010, the Supreme Court of the United States handed down one of its worst and most activist decisions ever. Indeed, in terms of harm caused and likelihood for future harm, the Court’s decision in Citizens United is, likely, the most pernicious Supreme Court decision ever issued in our nation’s history.

A historical recap: Citizens United, a wealthy nonprofit that ran a Political Action Committee with millions of dollars in assets, produced and promoted an anti-Hillary Clinton documentary movie to be used in the 2008 Democratic primary. The Bipartisan Campaign Reform Act of 2002[1] prohibited electioneering communications within 30 days of the last primary election and within 60 days before the general election. Citizens United challenged the constitutionality of this ban, along with the Act’s disclaimer and disclosure requirements. The federal district court upheld the law and Citizens United’s appeal reached the Supreme Court.

Instead of disposing the case on the narrow legal basis before it, and in what can only be described as gross judicial activism, the Court sent the case back to the district court to be re-briefed (not to be re-heard by the trial judge) on the broader issue of whether the Bipartisan Campaign Reform Act was facially unconstitutional. Having then before it the question that the Court really wanted to decide, the Court held that the Act was unconstitutional as being a ban on corporate independent expenditures and a suppression of protected corporate political free speech.

Remember, too, that, textually, the Federal Constitution does not once refer to corporations or other non-human legal entities, much less accord any such non-human entities a “right” to anything or to be protected from anything. In point of fact, every constitutional right that non-human legal entities now enjoy was created, from whole cloth, by the United States Supreme Court. Every single one—including the right of political free speech!

That said, Citizens United and other decisions which it spawned have ushered in the unprecedented use of dark, individual and institutional mega-money expenditures to influence elections and to, effectively, silence the voices of individual small contributors and ordinary voters. This decision and its progeny have chipped away at expenditure and contribution limits imposed by Congress and by the States, upon individuals, corporations, unions, special interest groups, “nonprofits,” and trade associations.

Citizens United has resulted in multi-millions of dollars pouring into elections with little or no disclosure of the source of funding and with little, if any, accountability for the truth or accuracy of the information and messages promulgated. Indeed, candidates for political and judicial office are being “marketed” to voters in the same fashion that pharmaceuticals are hawked to consumers (unfortunately, though, without disclosure of the adverse side effects).

For example, in state judicial elections outside spending by interest groups has shattered records:

State supreme court elections have witnessed an influx of secret money and a stunning lack of transparency;
There are more million-dollar state supreme court races than ever before; more than half of all states with elected high courts are now impacted by big-money elections;
Money influences how judges vote;
Dark money campaign ads target judicial candidates, often in misleading ways, and, ultimately prejudice criminal defendants. [2]

Another example: In his book America Compromised,[3] Lawrence Lessig describes how dark money corrupts our elections. One of the ideals of democracy is that citizens are equal and that, at both the primary and general elections, in a democratic election, citizen’s votes should have equal weight.[4] If the first stage is corrupted, the results of the second stage are also corrupted.

The Citizens United effect works as an election filter—as Prof. Lessig calls it, “the Greenback Primary.” Mega and dark money funders act as the primary election nominators, and effectively pick the candidate list from whom voters get to choose. Members of Congress and candidates for Congress spend from 30% to 70% courting these big-money funders and become sensitive to the needs of, beholden to and effectively wedded to the agenda of these funders.

These funders, according to Prof. Lessig, constitute a very small number of Americans:

“In 2014 the top 100 contributors gave as much as the bottom 4.75 million—those 100 funders represent just .0000025% of all funders. As of February 2016, the top 50 Super Pac contributors had given nearly half the money received by all SuperPacs.”
“In 2014, just 57,864 contributors gave the equivalent of $5,200 (maximum across both the primary and general election cycles).”

Thus, a tiny fraction of Americans dominates the first stage of America’s two-stage election process--with the resulting exclusion of the vast majority of voters during that first, critical stage. While the Citizens United Court stated that people have the “ultimate influence” over elected officials, the fact remains that the funders have the first or interim effect—they determine or “filter” with their money, who the nominees are. As Tammany Hall’s infamous Boss Tweed said: “I don’t care who does the electing, so long as I get to do the nominating.”

A filter based on money is as illegitimate as any other filter—e.g. one based on race. Filters corrupt elections and dilute and devalue the franchise.

In short, the wolf of money, dressed up in the sheep’s clothing of corporate political free speech is driving and corrupting our elections, our political processes, our public officials, and our courts; it is drowning out the voices of ordinary citizens; it is responsible for the flood of false information and misleading media, and it is devaluing and diluting the franchise of ordinary voters.

Money corrupts and enough of it corrupts absolutely. And, as we again pass the billion-dollar expenditure mark in the 2020 elections, we’ll have the finest politicians that money can buy.

Indeed, the day Citizens United was handed down—January 21, 2010—will be remembered by those who care about our elections, the corruption of our political processes, and the value of ordinary Americans’ voice and franchise, as yet another day of infamy.

[1] 2 U.S.C.S. § 441(b)

[2]https://www.brennancenter.org/sites/default/files/publications/Politics_of_Judicial_Elections_Final.pdf; www.acslaw.org/state-courts/justice-at-risk; http://skewedjustice.org/

[3] America Compromised, Lawrence Lessig, The University of Chicago Press, 2018, Chapter 1.

How Executive Privilege Would Throw a Wrench Into Senate Impeachment Proceedings

This blog was originally posted in The Washington Post.

President Trump recently added a new complication to the struggle over the shape of his impeachment trial by declaring that he would invoke executive privilege to prevent former national security adviser John Bolton, and perhaps others, from testifying before the Senate. “Well, I think you have to for the sake of the office,” Trump told Fox News’s Laura Ingraham.

Such a claim has no constitutional merit, but it could throw a wrench into the Senate proceedings.

A privilege is simply a legal rule that permits someone to block production of evidence. Every privilege rests on a judgment that keeping certain things private is more important than insuring that legal decisions are based on full information. For example, to protect marriage, confidential communications between spouses are often privileged, even when enforcing the privilege means losing legally relevant evidence.

Privileges are of two general types: “common law” privileges and constitutional ones. Common law privileges — which can be created and modified by either judicial decision or legislation — regulate the admission of evidence in courts. Common law privilege rules do not bind Congress. By contrast, constitutionally based privileges, because they derive from the nation’s fundamental law, are not necessarily restricted to court trials and can bind Congress.

The term “executive privilege” covers several doctrines, the most important of which in the Trump impeachment context is a protection for presidential communications to and from close advisers. This privilege nowhere appears in the constitutional text but is nonetheless constitutionally based because it is implied by the separation of powers. Its rationale is that a president would be hampered in making executive decisions without candid advice from his subordinates, and this desirable candor would be inhibited by the prospect of compelled public disclosure. Therefore, neither of the other two branches should have easy access to presidential communications of this type.

Critically, however, executive privilege is qualified, not absolute. During Watergate, the Supreme Court held that President Richard M. Nixon’s executive privilege claim of privacy for taped conversations with his closest advisers was invalid against the need for evidence in a criminal trial of his subordinates. Lower federal courts have since found that presidential assertions of privilege in both courts and congressional hearings must yield to a showing that “the subpoenaed materials likely contain important evidence” and that “the evidence is not available with due diligence elsewhere.”

This standard might have been written for the present situation. Trump’s defenders claim the case against him regarding Ukraine is deficient because it lacks direct evidence that he conditioned military aid on a politically useful announcement of an investigation into the Bidens. That direct evidence could only come from the testimony of White House advisers, such as Bolton, and related documents, which have so far been withheld and as to which Trump threatens to assert privilege. Both the need for this evidence and its unavailability elsewhere are self-evident. Thus, even in an ordinary congressional hearing, the claim of privilege would fail.

Moreover, executive privilege may not apply at all in impeachment proceedings. All the cases finding even a qualified privilege arose where Congress was exercising its implied power of overseeing executive branch operations. Where the Senate is exercising its constitutionally specified “sole power to try all impeachments,” its right to demand all evidence relevant to the question of the president’s guilt would seem absolute. Even if there were a need test, a Senate decision to seek particular evidence satisfies it automatically.

Some have noted language in executive privilege decisions suggesting that protection of presidential communications is greater where the subject is national security or diplomacy. But there is certainly no warrant for the idea that a president’s misconduct is specially immune from scrutiny in the very areas where his corruption may prove most dangerous.

If a president could prevent Congress from hearing the best, and perhaps only, direct testimony about his own misdeeds by the simple expedient of saying the magic words “executive privilege,” the impeachment power would be effectively neutered. The Framers contemplated no such absurdity.

That said, a claim of executive privilege could create procedural havoc, depending on where Trump tried to assert it. If Trump’s counsel raised the issue during the Senate trial, it would be addressed by the chief justice, like any other objection, with a majority of the Senate having the last word. But if Trump went to court to seek to block testimony from his current or former aides, it could at least cause some delays.

My best guess is that a court would quickly determine that privilege rules in an impeachment trial are the sole province of the Senate, and would not order proceedings halted while that decision is appealed. But even a spectacularly expedited judicial decision could slow down the Senate’s work. That delay might not be in the president’s interest — he wants to be acquitted, after all — but it’s not inconceivable that the impeachment trial could take a detour to federal court.

Citizens United Made My Career: I Wish It Had Never Happened

Hear more from this author in the video recording of ACS's January 17 panel discussion: Revisiting Campaign Finance Regulation 10 Years After Citizens United.

Citizens United made my career. I would have preferred a healthy democracy. When I gave my job talks to become a professor of law, the topic was Citizens United. Since 2010, I have written 11 law review articles and 2 books (Corporate Citizen and Political Brands) about Citizens United and its aftermath. I’ve been invited to talk about Citizens United over 50 times around the nation including by ACS on January 16, 2020. Those who found it objectionable the day it was decided are still dismayed by it a decade later and still want to undo it or mitigate it.

Twelve years ago I was a junior lawyer at the Brennan Center when the Supreme Court took the Citizens United v. FEC case. I went out on maternity leave in 2008. When I came back to work, Citizens United was scheduled for re-argument at the Supreme Court. I spent the summer of 2009 helping to corral amici to write Supreme Court briefs and rushing home on the subway to relieve my childcare provider. But looking back I’m glad I was able to work on the amici effort. A brief from the Sunlight Foundation argued for transparency. The final opinion written by Justice Kennedy adopted many of the Sunlight Foundation’s arguments.

I attended the re-argument of Citizens United in the gallery of the Supreme Court with my fellow lawyers from the Brennan Center. I remember feeling like I was watching democracy die among high pillars and velvet drapes. Ted Olson said something lame. People laughed. Justice Scalia said something even more lame. People laughed harder. Elena Kagan, the solicitor general, backtracked on an absurd position that her predecessor, the acting solicitor general, had made in the first oral argument. People laughed again. By the time Seth Waxman got up to add a few points about Elihu Root, the oxygen had already left the room. The fix was in. It was a forgone conclusion that the Supreme Court was about to tear up decades if not centuries of laws that had kept corporations out of politics in federal elections and over twenty state elections. All we had to do between September 9, 2009, and January 21, 2010, was wait for the guillotine to fall.

While the case was pending at the Supreme Court for two years, I wrote a white paper about the worst-case scenario of what the Supreme Court could do in Citizens United. When the case came out, all I had to change were the verb tenses. The Supreme Court’s Citizens United decision gave all corporations the right to spend unlimited amounts of money buying unlimited political ads in all Americans elections henceforth.

Staffers in Congress noticed my white paper and invited me to testify. I told members of Congress that Citizens United presented two big problems for investors: a lack of transparency and a lack of consent. The transparency problem is now known under the umbrella of “dark money” which cannot be traced back to its original source, whether that source is human or corporate. The consent problem is that unlike shareholders in the UK, shareholders in the US are not given a chance to vote on corporate political spending.

Looking back at the decade between 2010 and 2020, I see that there were many ways for corporations to damage democracy and democratic norms—not all of which are traceable to Citizens United, but many which are.

The greed of corporations often makes them devalue the very people who work for them and corporations use their political clout to get their way. For example, corporate interests have worked to roll back increases in the minimum wage including urging the DC City Council to repeal an initiative by voters to increase the subminimum wage for tipped workers. Voters made it clear in June 2018 they wanted the higher wage. As Think Progress reported at the time, “the D.C. Restaurant Industry and its lobbyists have contributed more than $236,000 to the campaigns of current councilmembers and D.C. Mayor…” Businesses, including the National Restaurant Association, had the muscle to overrule their votes on wages by October 2018. The National Restaurant Association has also voiced its opposition to raising the federal minimum wage.

The fight over DC’s minimum wage wasn’t the only local election where corporations threw their weight around. In 2014, Chevron tried to buy a mayoralty and city council seats in Richmond, California. But this ended up backfiring when Chevron’s political spending became a national story and the Chevron-backed candidates lost.

Corporations also tried to put a thumb on the scale of justice in state judicial elections and empirical data from Professor Joanna Sheperd showed disturbingly: “There is a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.”

Then there is the tax dodging. From 2010-2020 Apple was the poster child for dodging U.S. taxes. But Apple wasn’t alone. Corporations lobbied heavily for the Trump tax cuts. According to a study by ITEP, 60 companies paid zero taxes in 2018. Not surprisingly, the big winner from the Trump tax cuts were corporations. The last cut in the corporate tax rate had been in 1993. For a group that wants to have the rights of U.S. citizens, they don’t appear ready to do what every tax paying person does: chip in.

Business interests have also worked to undo campaign finance reforms that voters wanted. In November 2016, North Dakota voters voted for an initiative to provide public financing in elections. But the state legislature repealed the measure and the governor signed the repeal into law by February 2017. The opponents of this change included American for Prosperity, a group linked to Charles Koch of the Koch Brothers and Koch industries.

And then there’s what I can only call the “Facebook problem.” Facebook is number 57 on the Fortune 500. I’ve seen computer scientists at DEF CON to professors at the Association of American Law Schools lament the “Facebook problem.” And people characterize the problem in a variety of ways ranging from the way that Facebook allows advertisers to target subsets of the population, to the ways that Facebook allows for manipulation of its users, to Facebook’s disregard for users’ privacy. But all of these issues may be outweighed by the decision by Facebook’s founder Mark Zuckerburg to allow lies in political ads during the 2020 election. This can only hurt democratic discourse.

Finally, as I detail in my book Political Brands, the Trump Organization brought a whole new level of corporate conflicts of interest into the White House including ongoing violations of the domestic and foreign emoluments clauses. If the original fear was corporate money flowing into the political system, the Trump Organization has shown that political money flowing into corporations can be just as problematic.

Could all of this have happened without Citizens United? Possibly. It’s hard to know the counterfactual. But Citizens United seemed to encourage corporations to be aggressive in politics and to be brazen about conflicts of interest that benefited corporations over workers, customers, investors, and citizens. After Citizens United, politicians always have to fear that if they go against corporate interests, that they will reap the whirlwind of corporate wrath in the next election.

Citizens United made my career. I wish it had never happened.

What To Expect When You're Expecting Impeachment

This blog is one in a series of blogs in a symposium examining different legal aspects of the impeachment inquiry of President Trump. View the entire Impeachment Blog Symposium.

Note: This blog was originally published on 9/27/2019: House Speaker Nancy Pelosi announced on Tuesday the commencement of an impeachment inquiry into President Donald Trump. The inquiry, when announced, was evidently, meant to be an umbrella that covers all the various investigations into presidential improprieties. Subsequent posts will delve into the specifics of those investigations and whether they provide sufficient grounds for impeachment. In this post, I will outline the mechanics of impeachment.

I. Constitutional Provisions

The operative provision – the one that sets forth the grounds for impeachment – is found in Article II:

The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery and other high crimes and misdemeanors.

The Constitution divides the impeachment power between the House and the Senate, providing that “[t]he House of Representatives … shall have the sole power of impeachment,” while granting the Senate “the sole power to try all impeachments.” This means that the House’s decision to impeach a civil officer is analogous to an indictment, which is then forwarded to the Senate for adjudication and disposition.

The Constitution says virtually nothing about the procedures the House and Senate are to employ in carrying out their respective impeachment roles. Indeed, the Constitution is completely silent regarding the procedures in the House. This means the general rule that the House of Representatives operates by majority vote applies to its power to impeach. With respect to the Senate, the Constitution provides that where the President has been impeached, the Chief Justice shall preside over the trial and that conviction (of the President or any other civil officer) requires a vote of two-thirds of the members present. The requirement of a two-thirds vote to convict has a pervasive influence on impeachments. As a practical matter, it requires that impeachment must be a bipartisan undertaking, otherwise any impeachment by the House is an empty, symbolic exercise. Moreover, the requirement of a two-thirds Senate vote operates to prevent impeachment from being used as a weapon to make the executive or judicial branch subordinate to Congress.

II. Procedure in the House of Representatives

A. Developing the Record

The Rules of the House of Representatives, like the Constitution itself, are largely silent on impeachment. For example, there is no rule that expressly assigns jurisdiction for impeachments to a particular committee. House precedents establish that impeachment resolutions are to be referred to the Judiciary Committee but leave open the possibility of assigning authority to investigate to other committees. As a result, there is a great deal of discretion in the Speaker to assign investigation of presidential wrongdoing as she sees fit. Impeachment investigations, in practice, have typically been assigned to the Judiciary Committee. The investigations of both Richard Nixon and Bill Clinton were assigned to the Judiciary Committee. Nonetheless. Speaker Pelosi’s decision to assign investigation of wrongdoing by President Trump in connection with Ukraine to the House Intelligence Committee is perfectly appropriate under the rules of the House.

The nature of the impeachment investigation can vary widely depending on the circumstances. The House Judiciary Committee’s investigation of Richard Nixon was extensive. The Committee hired 44 lawyers and employed a total staff of approximately 100 people. The Committee conducted several months of hearings, many in closed session, and extensive independent research and analysis. The Clinton impeachment, by contrast, saw the Judiciary Committee conduct a perfunctory process as the Judiciary Committee relied on the report issued by the Independent Counsel, Ken Starr, and did no independent investigation of its own.

Articles of Impeachment

The formal vehicle for accusing the President of having committed a high crime or misdemeanor is an article of impeachment. The practice of the House has been for the Judiciary Committee to draft and vote on articles of impeachment. Those articles or accusations that the Committee approves are then sent to the floor for consideration of the full House of Representatives. It was the floor debates over the articles of impeachment proffered against Bill Clinton where the House Republicans had the opportunity to make their case to the public that he should be impeached. It was the conduct of these debates that seems to have convinced the public that the impeachment effort was partisan.

View more legal analysis from the ACS network.

Once the House adopts articles of impeachment, it selects a group of managers to act as prosecutors in the impeachment trial to be held in the Senate. The selection of House managers can happen in several ways, including direct election by the full House, adoption of a resolution naming the managers, or a resolution authorizing the Speaker to name them. Under any method, the Speaker and the leadership effectively hold the power to designate the slate of managers. There is longstanding concern with this method of prosecuting impeachments as the lawyering skills of House members are often not on par with the skills of the professional counsel retained to defend the subject of the impeachment. The House managers could retain outside counsel to make oral arguments and conduct the examination of witnesses during the Senate’s impeachment trial, though House members are predictably reluctant to forego such a prime opportunity to appear in the national limelight.

The Nixon impeachment did not reach this stage because the bipartisan consensus in favor of removing him from office was so overwhelming that he resigned. In the case of President Clinton, the House appointed 13 Republican members of the Judiciary Committee. Their advocacy did nothing to dispel the broadly held sense that the impeachment of President Clinton was, in fact, a partisan affair.

III. Trial in the Senate

A. Initiating the Trial

The Constitution clearly contemplates that the Senate will in fact hold a trial upon Articles of Impeachment duly adopted by the House of Representatives. The Constitution does not, however, by its express terms command the Senate to hold a trial. Given the refusal of the Majority Leader to allow the Senate to consider President Obama’s nomination of Merrick Garland for the Supreme Court, one might anticipate that Senator McConnell would similarly refuse to hold an impeachment trial were the House to impeach President Trump (especially since the Constitution just as clearly contemplates that the Senate will consider a Supreme Court nominee and vote to confirm or reject the nomination).

The Senate has adopted Rules of Impeachment that do appear to require the Senate to hold a trial. Rule III commands:

Upon 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.

Thus, the Senate’s consideration is automatically initiated by the House managers introducing the Articles of Impeachment to the Senate and appearing at the bar of the Senate. See Rules I, II.

B. Trial Procedures

The Senate does not follow its normal rules of order during an impeachment trial. Senators may not engage in colloquy, question witnesses, or otherwise participate in the presentation of the case. The Senate Rules for Impeachment provide, in fulfillment of the constitutional requirement, that the Chief Justice shall preside over the trial when the President has been impeached. See Rule IV. The rules provide for pre-trial orders to be issued by the presiding officer, and for process to compel the witnesses to appear and give evidence. During the proceedings, the Senators are required to remain silent and to function as a jury. The trial itself functions largely in the manner of any ordinary trial, with lawyers on both sides making opening statements, presenting evidence, questioning witnesses, making motions and objections (ruled on by the Chief Justice), and making closing statements. The Senate rules provide that the function of receiving evidence may be committed to a committee. This process has been used for the impeachment trial of District Court Judges. It has never been used for the trial of a President, and it is difficult to imagine the Senate seriously contemplating delegating this function to a committee. After both sides make their closing statements, the question of conviction is presented to the Senate. At that point, the Senate meets in closed session to deliberate. When the deliberation is concluded, the Presiding officer presents the question, calls the name of each senator, and each senator must respond by saying either “guilty” or “not guilty”. No speech is permitted and no other response is in order. When called upon to vote on whether to convict President Clinton, Senator Arlen Specter attempted to vote “not proven” but this response was ruled out of order.

C. Punishment

If any civil officer, including the President, is convicted of having committed a high crime or misdemeanor, the Constitution imposes a mandatory punishment: removal from office. Were the House to impeach and the Senate to convict President Trump, he would be removed from office as President. But he would be allowed to run for the presidency again. In fact, Judge Alcee Hastings was elected to Congress after having been impeached and convicted on corruption charges. He is currently serving his thirteenth term as a Representative from Florida.

The Constitution, however, allows the Senate to impose as an additional punishment “disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” The Senate may approve this punishment by a simple majority vote, but it has imposed this disqualification only twice (against Judge West Humphreys in 1862 and Judge Robert Archbald in 1913) in the nation’s history.

Kinkopf served as Counselor to Sen. Joseph Biden for the Impeachment Trial of President Clinton.

The Unbearable Incoherence of Senate Obstructionism

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.