The Constitution of the United States provides in Article I that the “House of Representatives shall have the sole Power of Impeachment” and that the “Senate shall have the sole Power to try all Impeachments.”
By passing articles of impeachment, the House has impeached the President. The Senate trial is being held up because House Speaker Nancy Pelosi refuses to send the articles of impeachment formally to the Senate and to name House managers to begin the process. She may withhold the articles until she is assured that the rules of a Senate trial are, in her view, fair — that they will include, among other things, an opportunity for Senate Democrats to call witnesses of their choosing and introduce documents they consider relevant to the proceedings.
However, under the Constitution, the House of Representatives has no role to play in the trial proceedings in the Senate. It cannot dictate procedures in the Senate any more than the Senate could dictate the rules of impeachment in the House. The Constitution makes it clear that the House has the “sole power of impeachment,” and the Senate has the “sole power to try all impeachments.” Indeed, in the Walter Nixon case (1993), the Supreme Court made it clear that not even federal courts can review Senate impeachment procedures.
So, where does the generally accepted notion arise that a Senate trial may not commence until Pelosi sends the articles of impeachment to the Senate and names House managers to prosecute the case for impeachment in the Senate? It isn’t in the Constitution, nor are any such procedures required by the House’s rules. Instead, these particular processes are found in the Senate rules on impeachment. The first Senate rule on impeachment provides as follows:
The third Senate rule provides as follows:
Since it is a Senate rule that governs any impeachment trial, it would seem that Pelosi’s delaying tactics could be overcome by a simple change in the Senate rules. But that’s easier said than done. While it takes just a simple majority of 51 votes to overcome any ruling by the chief justice, who presides in a Senate trial, it takes a two-thirds supermajority vote to change existing rules. (This issue came up during the Clinton impeachment trial, where it was determined that a two-thirds majority was required to change the rules to open the Senate doors during deliberations.) Since there are only 53 Republican senators, such a rule change at this point seems unlikely.
However, some might view this effort by the House’s top official to shape the rules of a Senate trial as a usurpation — a political power grab in an area where the Constitution gives the Senate “sole power.” Under this view, Pelosi’s effort to intervene in the Senate trial undermines the entire process and bolsters the idea that this impeachment is based on politics, not the Constitution or the law.
Eventually, Pelosi will have to transmit the articles of impeachment to the Senate. There will be a Senate trial. Further delay will only serve to benefit Republicans, as it will occur during the critical Democratic primary season. This will suck all the air in the room away from the Democrats’ candidates and their messages, instead keeping all eyes on the political infighting regarding procedures for a Senate trial.
And everyone, including Pelosi, recognizes that the Senate, which is controlled by Republicans, will ultimately vote to acquit the president. At that point — and may it come sooner rather than later — the question of President Trump’s suitability to be president of the United States will be determined as it should be in a democracy — in an election, by the people.
Steve Frank is an attorney with a 30-year career as an appellate lawyer with the United States Department of Justice.
