Memo re impeachment trial

Senators have been given a memorandum written by Democratic former senator Russ Feingold and Republican former senator Chuck Hagel entitled: Presidential Impeachment Trial: What a Senator Should Know. What I found particulary interesting is Section III.

Section III explores the ways in which an impeachment trial could be avoided or shortened, concluding that it would be inconsistent with both precedent and senators’ constitutional duties to avoid holding a full impeachment trial.

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Senators have several mechanisms at their disposal that they might use to limit an impeachment trial. While avoiding a trial entirely would represent an abandonment of constitutional duty, senators could attempt to end a trial early by passing a motion to adjourn or a motion to dismiss.

In our view, the Senate’s failure to hold a trial would contravene senators’ constitutional oaths to “support and defend the Constitution of the United States [and to] well and faithfully discharge the duties of the [senatorial] office.” [...] Such disregard for the House’s decision to impeach would also demonstrate lack of reverence for the House’s duty to bring charges against an official believed to have committed impeachable offenses.

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[I]f senators were to abandon their constitutional duty by declining to hold a trial on articles of impeachment they would be ceding a core constitutional function of the Senate, as holding an impeachment trial is one of just four actions Article I, Section 3 specifically empowers the Senate to take.

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The sixteen currently serving senators who previously voted in President Clinton’s Senate trial would find it particularly difficult to explain a contrary decision to forego their constitutional duty to conduct an impeachment trial this time. Finally, a decision not to hold a trial would also contradict prior statements by Senate Majority Leader Mitch McConnell that the Senate will “take the matter up” and that the Senate intends to “do our constitutional responsibility. trial

Somehow I don't think Mitch McConnell cares what his prior statements might have been. Nor any of the various and plentiful congress critters who have been shown to reverse their positions depending upon which party is in the White House.

While a Senate majority could invoke the procedural tactics of adjournment or a motion to dismiss to cut short trial proceedings, it would be inconsistent with both Senate precedent and constitutional duty for senators to cut an impeachment trial short.

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There is historical precedent for adjournment: during the trial of President Johnson, the Senate adjourned “after the president was acquitted on three articles of impeachment; no votes were held on the remaining eight articles” after it became clear that a two-thirds vote could not be politically achieved. But during the Clinton trial, the Senate did not adjourn and instead decided on both articles of impeachment.

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The more likely path for the Senate to truncate the trial would be through a motion to dismiss, which White House lawyers may decide to bring forward. [...] During President Clinton’s impeachment trial, the motion to debate dismissal in open session failed on a vote of 56-44, and not along strict party lines.

At the time, the Republican Managers repeatedly argued that the motion to dismiss was inappropriate. House Manager Charles Canady, for example, explained that “adoption of the motion would be inconsistent with constitutional standards and harmful to the institutions of our Government.” Likewise, House Manager Asa Hutchinson asserted that “to dismiss the case would be unprecedented from a historical standpoint, because it has never been done before; it would be damaging to the Constitution, because the Senate would fail to try the case; it would be harmful to the body politic . . . .” Lead House Manager Henry Hyde, then Chair of the House Judiciary Committee, further argued, “this motion elevates convenience over constitutional process” and pushed for a bipartisan approach that would allow the country to move forward.

In the end, the Senate accepted the House managers’ arguments and rejected the motion to dismiss in a bipartisan vote. It has been reported that in the current proceeding, Senate Republicans have already told the President’s defense team to “prepare for a full Senate trial, stating that any motion for an early dismissal of impeachment charges likely won’t have the votes to pass.”

The procedures outlined in the memorandum are also interesting. And they specifically address the question of what constitutes bribery for impeachment purposes (Page 19).  If there is any honesty at all amongst Republican senators, they at least have to acknowledge the legitimacy of the charge of bribery in the articles of impeachment against Trump.  But that would automatically mean removal from office, so I don't expect to find enough honest Republicans to do it.

Check it out and be in the know when Mitch McConnell thumbs his nose at precedent and rules.

...but hey, do what you want...you will anyway.