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01/12/2020

More on Impeachment and English History
John Vlahoplus

It is dangerous to analogize to English or U.K. law because (a) it is debatable whether that law has any bearing on U.S. impeachments, and (b) I am not trained in it.  That said, here are excerpts from U.K. authorities along with analogies to impeaching and trying a U.S. President.

The first excerpts are from Erskine May, the standard U.K. authority on parliamentary practice, beginning here (1851 edition, footnotes omitted):

It rests, therefore, with the House of Commons to determine when an impeachment should be instituted…   [T]he member is ordered to go to the lords, ‘and at their bar, in the name of the House of Commons, and of all the commons of the United Kingdom, to impeach the accused; and to acquaint them that this house will, in due time, exhibit particular articles against him, and make good the same.’  The member accompanied by several others, proceeds to the bar of the House of Lords, and impeaches the accused accordingly…  A committee is appointed to draw up the articles, and on their report, the articles are discussed, and, when agreed to, are ingrossed and delivered to the lords, with a saving clause, to provide that the commons shall be at liberty to exhibit further articles from time to time...

The lords appoint a day for the trial, and in the meantime the commons appoint managers to prepare evidence and conduct the proceedings, and desire the Lords to summon all witnesses who are required to prove their charges.  The accused may have summonses issued for the attendance of witnesses on his behalf, and is entitled to make his full defence by counsel.

When the case is thus concluded, the lords proceed to determine whether the accused be guilty of the crimes with which he has been charged…  If the accused be declared not guilty, the impeachment is dismissed; if guilty, it is for the commons, in the first place, to demand judgment of the lords against him; and they would protest against any judgment being pronounced until they had demanded it…  The necessity of demanding judgment gives to the commons the power of pardoning the accused, after he has been found guilty by the Lords…

So important is an impeachment by the commons, that not only does it continue from session to session, in spite of prorogations, by which other parliamentary proceedings are determined; but it survives even a dissolution, by which the very existence of a Parliament is concluded.

The last is from the House of Commons Library Briefing Paper Number CBP7612 (June 6, 2016), page 6, available for download here.

During the Oxford Parliament in 1681 … the Commons passed a resolution ‘That it is the undoubted right of the Commons to impeach before the Lords any Peer or commoner for treason or any other crime or misdemeanour, and that the refusal of the Lords to proceed in Parliament upon such impeachment is a denial of justice and a violation of the constitution of Parliament’.

These suggest by analogy that:

(1) The Senate cannot refuse to try an impeachment brought by the House;

(2) The House has the right to manage the prosecution;

(3) The House and the President have the right that the Senate summon witnesses;

(4) The impeachment process survives the end of congressional terms; and

(5) The Senate cannot pronounce a guilty judgment unless and until the House demands it, allowing the House to pardon the President even if the Senate finds him guilty.

 

UPDATE -- FURTHER THOUGHTS (by John Vlahoplus):

Here's a bit more English legal history on impeachment, suggesting that Andrew Hyman's description and the one above have longstanding precedent.  The following excerpt is a description of the process from counsel for a defendant in an impeachment in Parliament in 1681:
The Commons they bring up the impeachment to the Lords, the Commons they prosecute the impeachment, they manage the evidence upon the trial; and when the Lords have considered of it, and have found the fact, the Commons come and demand judgment, and judgment is given at the prayer of the Commons, and no otherwise...