Rule of Law

OP-ED: The Constitution and McConnell say so: Senate will hold trial if House impeaches Trump

There’s no wiggle room for McConnell on a Trump impeachment trial, and he seems to know it. Plus it’s the least destructive path for him politically.

Senate Majority Leader Mitch McConnell once boasted about keeping a Supreme Court seat vacant for more than a year. He said that blocking Judge Merrick Garland’s nomination from even getting a vote was “the most consequential decision I’ve made in my entire public career.”

McConnell also calls himself the “grim reaper” of the raft of legislation passed by the Democratic-led House of Representatives. In the legislative graveyard of his Republican-controlled Senate, McConnell has buried House-passed bills to prevent gun violence, lower prescription drug prices, prevent violence against women and many others.

As President Donald Trump faces scrutiny in Congress for allegedly attempting to pressure the Ukrainian government for political dirt on former Vice President Joe Biden in exchange for military aid, it’s natural to wonder whether McConnell would try to bury impeachment, too.

No wiggle room for McConnell

Some argue he could simply ignore impeachment, but McConnell himself said Monday that he “would have no choice but to take it up.” He was notably vague on what exactly that would mean, adding that “how long you’re on it is a whole different matter.” But months ago, he said the Senate “immediately goes into a trial” if the House approves articles of impeachment.

Let’s be absolutely clear, neither the Constitution nor Senate rules give McConnell any wiggle room to try to “Garland” his way out of this critical process of constitutional accountability.

To begin, Article I, Section 3 says, “The Senate shall have the sole power to try all Impeachments.” Every Senate to consider impeachment since the founding has read this critical passage to require them to undergo some sort of process.

In the 230 years since the Constitution took effect, the House has impeached 15 federal judges, one senator, one Cabinet member and two presidents. Sixteen of those impeached individuals received a full Senate trial, while the other three resigned before the Senate trial concluded. Never in that entire time has the Senate understood its power to try impeachments as discretionary. Never.

Impeachment trials are not optional

Think about why that is. Our Constitution does not work — it simply falls apart — if this critical power of Congress to check and balance the other branches is discretionary. Acquittal is obviously an option: Seven impeached officials have been, including Presidents Andrew Johnson and Bill Clinton.

Dereliction of duty, however, is not an option. One half of Congress indicting a sitting president for committing treason, bribery or other high crimes and misdemeanors, only to meet silence from the other half — no trial, no review of the evidence, no vote — leaves a cloud of illegitimacy hanging not only over the nation’s chief executive, but also over our nation’s founding charter.

As if the text and structure of the Constitution, plus hundreds of years of unbroken historical tradition, weren’t enough, Senate rules require Sen. McConnell to stand aside and allow the prescribed impeachment process in the Senate to commence. The Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials are explicit and clear about this. The House sends impeachment managers to the Senate, along with the articles. Chief Justice John Roberts would be sworn in to preside, and in turn he would swear in all 100 senators. The process would be underway.

There is no discretion in the Senate rules, no menu of options for the majority leader to choose from. Now, if McConnell wanted to change the rules, then he’d better buckle up. Any motion he could make to change the rules is likely debatable, requiring 60 votes to pass, which he doesn’t have. Winning would mean not only shielding Trump from an impeachment trial, but also possibly nuking the filibuster for everything else in the Senate(it’s now only eliminated for court and executive branch nominations).

This isn’t like blocking Merrick Garland

Such a vote would be the equivalent of a vote on impeachment anyway. Choosing this bizarre and destructive route doesn’t make sense for someone as calculating as McConnell, especially with the possibility that one of a strong field of Democratic presidential candidates could be driving the national agenda in 2021.

Still, for the sake of argument, let’s nod to the darkest corner of McConnell’s proven cynicism. Could he disregard the Constitution and Senate rules altogether? Could he engage in an act of blatantly anti-constitutional, nihilistic obstruction and refuse to allow any impeachment proceeding whatsoever — even if, say, House Speaker Nancy Pelosi herself walked the articles of impeachment across the Capitol and banged on the doors of the Senate?

Sure, McConnell could do that. But doing so would mean wrecking the Senate by violating one of its written rules, maybe for the first time in his career. McConnell faced no explicit contrary instruction when he blocked President Barack Obama’s Garland nomination to the Supreme Court. This is different, and the majority leader seems to recognize that.

At the end of the day, both houses of Congress are faced with Benjamin Franklin’s timeless, bracing challenge — “a republic, if you can keep it.” With the Constitution, the Senate rules, Mitch McConnell’s own self-interest and the raised voices of We the People, we can bear witness to a full Senate trial of President Trump should the House vote to impeach him, and indeed keep our republic for many generations to come.