Has Trump actually been impeached? Ask Chief Justice Roberts.David Weisberg

Speaker Pelosi’s current refusal to convey to the Senate the articles of impeachment adopted by the House has raised the question whether Pres. Trump has actually been impeached.  I am in the camp that says that, purely as a technical matter, he has not.  But the implications of that position are not as crystal-clear as one might initially think.

Sen. Lindsey Graham insists that, even if the articles are never conveyed to the Senate, the Senate can and should conduct a trial.  Legal scholars have responded that, if the president has not been impeached, then the Senate cannot try the impeachment (because, in fact and law, there is no impeachment to try).  Again, as a purely technical matter, I think this is correct.  But it does not follow that the Senate cannot conduct a trial; it follows only that any such trial would fall outside the scope of Art. I, Sec. 3.

Everyone would agree, I think, that the House cannot be compelled to convey the articles of impeachment to the Senate, because it has no duty to do so.  And I have argued that, even if the articles were officially conveyed, the Senate cannot be compelled to try those articles, because it has no duty to do so.  Both conclusions follow from the general proposition that each congressional body is a self-governing part of a co-equal branch of government, and they can expend their energy and resources in any way they choose, provided only that they do not violate any explicit or implicit duty under the Constitution or federal law.  Thus, if a majority of the Senate agree, the senators could spend their time playing bingo, with the presiding officer spinning a wheel and calling out numbers.  The only sanction they would face would be in voting booths the next election day.

Because the Senate is free to do anything that does not violate an explicit or implicit duty, the Senate can hold a trial of articles of impeachment that have not been officially transmitted by the House.  From the perspective of those who believe Pres. Trump has not actually been impeached, it might be thought of as an ‘unofficial’ impeachment trial of ‘unofficial’ articles of impeachment.  I don’t think anyone could prevent such a trial from proceeding—the person with the strongest potential objection would be Trump himself, but he’s insisted all along that he wants a Senate trial and so he won’t be objecting.

The question then arises: if the Senate were to go ahead with a trial without officially receiving the articles of impeachment, what would Chief Justice Roberts do?  The Senate would, of course, never characterize its proceeding as in any way ‘unofficial’; it would simply announce that, under Art. I, Sec. 3, it will try the articles adopted by the House.  The C.J. would then have to decide whether to “preside” over the Senate trial.  He might argue that, because there had been no official transmission of the articles, the Senate could not "try" the impeachment under Art. I, Sec. 3, and so he would have no duty under that provision to "preside".  Although perfectly defensible, I think it would be very difficult for the C.J. to take that position.  As a practical matter, the pressures on the C.J. to preside would be great.  And, even if the articles were never officially transmitted, a Senate trial with the C.J. presiding would certainly convince the general public that Trump had indeed been impeached.  The history books would undoubtedly agree.