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03/05/2019

Bob Bauer on the Senate's Refusal to Try an Impeachment
Michael Ramsey

At Lawfare, Bob Bauer: Can the Senate Decline to Try an Impeachment Case? From the introduction:

Does the Senate have an obligation to conduct a trial of the president if the House impeaches him? With the increased prospects for an impeachment inquiry now that the Democrats have taken control of the House of Representatives, most discussions of impeachment have assumed that, should the House vote to impeachment, the Senate will then hold a trial. This is the logical construction of the Constitution’s provisions setting out the impeachment process: If the House impeaches, then it would follow that the Senate tries the case. This is what the Senate did on the two occasions, in the cases of Andrew Johnson and Bill Clinton, that the House voted articles of impeachment.

And from further along:

But it is also possible that, in this time of disregard and erosion of established institutional practices and norms, the current leadership of the Senate could choose to abrogate them once more. The same Mitch McConnell who blocked the Senate’s exercise of its authority to advise and consent to the Supreme Court nomination of Merrick Garland, could attempt to prevent the trial of a House impeachment of Donald Trump. And he would not have to look far to find the constitutional arguments and the flexibility to revise Senate rules and procedures to accomplish this purpose.

The Constitution does not by its express terms direct the Senate to try an impeachment. In fact, it confers on the Senate "the sole power to try,” which is a conferral of exclusive constitutional authority and not a procedural command. The Constitution couches the power to impeach in the same terms: it is the House’s “sole power.” The House may choose to impeach or not, and one can imagine an argument that the Senate is just as free, in the exercise of its own “sole power,” to decline to try any impeachment that the House elects to vote.

Sounds like a good textual argument to me.  The post counters with Laurence Tribe: 

Professor Laurence Tribe has argued that the Senate retains a clear constitutional “duty” to proceed with a trial. He grounds that obligation in the "structure, history, function, and logic of the impeachment Power, not from any mandating language." On this we agree: the Senate does have this duty to try any impeachment voted by the House. The individual senators would violate their oath in altogether ignoring the House’s constitutional judgment that the president, having committed impeachable offenses, is unfit to retain the office. For the Senate and a majority to adopt this course is wrong and dangerous. 

It might be wrong and dangerous but that does not make it unconstitutional.  And the oath argument does not seem to have much traction if the individual Senators think the impeachment is a political stunt without foundation.

I thought the Senate had no duty to formally consider the Garland nomination, as a result of a lack of any duty being specified in the text.  So I'm sympathetic to a "no" answer here too.  But there might be at least two distinctions.  First, the practice might be stronger.  The post mentions two presidential impeachments, but what about judicial impeachments?  Has the Senate ever refuse to try?  (I guess no).  There remains the difficulty of whether an affirmative constitutional duty can be created by practice, though.  A second possible distinction is textual.  The reference to "try[ing]" impeachments evokes a judicial role.  Judges have no power to refuse to try cases brought to them (although they can dispose of them summarily).  If we think of the Senate in a judicial role, perhaps a judge-like duty to try attaches.