Re: "Impeach but Withhold": Does the House have a power to "withhold" from the Senate?

[mahatmakanejeeves]

TwoArticleHat Retweeted

Re: "Impeach but Withhold"
I must be missing something. @tribelaw @SykesCharlie & lots of other smart people suggest the House can impeach but withhold the articles from the Senate until it establishes a fair trial.
Where does the House have a power to "withhold" from the Senate?

Link to tweet

BREAKING NEWS: Schumer’s proposal to McConnell. If he rejects these reasonable ground rules & insists on a non-trial, the House should consider treating that as a breach of the Senate’s oath & withholding the Articles until the Senate reconsiders
https://www.democrats.senate.gov/imo/media/doc/Impeachment%20Letter%20To%20Leader%20McConnell.pdf …

Link to tweet

https://www.democrats.senate.gov/imo/media/doc/Impeachment%20Letter%20To%20Leader%20McConnell.pdf

[gratuitous]

1. The Constitution says the House will have the sole power of impeachment

And, considering the way this administration and its Republican stooges in Congress treat anything that isn't a black-and-white command in the law (and evens some legal provisions that are black-and-white commands), the House is on pretty firm ground not to refer ratified Articles of Impeachment to the Senate until the House is good and ready to do so, and has some suitable assurance from the Senate that the Articles are going to be fairly adjudicated.

Let the Republicans squawk about holding the Articles over Trump's pointy little head like a latter day sword of Damocles. Sucks to be you.

[hlthe2b]

2. Laurence Tribe responds to your own question (better than I was going to)

Laurence Tribe
?Verified account @tribelaw
4h4 hours ago

Laurence Tribe Retweeted Jed Shugerman

.@jedshug is indeed missing something. He gets it backwards by searching for a special House “power to withhold.” Until the body that prosecutes a case decides to prosecute it, there is nothing for the entity that “tries” the case to try. The sound of one hand clapping is silence

Link to tweet

[Hortensis]

4. He doesn't address the question of that "shall," but I'm

sure others will.

[Azathoth]

7. Tribe is losing it

When the prosecutor refuses to prosecute, it doesn't mean the trial gets indefinitely postponed while the accused sits in jail. It means the charges get dismissed.

The Senate runs the trial. If the House manager refuses to show up, the Senate is perfectly within its power to vote to acquit based on no evidence being presented.

[Cuthbert Allgood]

8. Nothing personal, but I'll take Tribe over you

when it comes to the US Constitution.

[hlthe2b]

9. You conflate a criminal trial with the constitutionally prescribed process of impeachment...

Apples and oranges & totally irrelevant, your insults toward the preeminent constitutionalist, Tribe, notwithstanding.

[Azathoth]

23. Tribe is the one who used the prosecutor "entity" metaphor, not me

And he's wrong by his own analogy, your deep concern for the slightest criticism of his twitter ramblings notwithstanding.

[hlthe2b]

25. LOL

Dream big.

[Voltaire2]

14. A prosecutor can keep a grand jury open for up to 24 months.

That is codified is federal law for grand juries. There is no explicit time limit for an impeachment process in the house. So I think Tribe is likely correct, the House could vote on articles of impeachment, and then simply continue the impeachment process until it decides to complete the process. Interpretation of the impeachment clause is entirely the domain of the House.

[Azathoth]

20. A grand jury is not a trial. And most grand juries hear multiple cases

Impeachment is the Constitutional equivalent of indicting the president, and the Senate trial is just that -- a trial. Tribe is the one who used the analogy of a prosecutor not showing up for a trial, and by his own metaphor he's wrong.

If the House impeached and tried to pretend the Senate wasn't allowed to hold a trial, it would be a true constitutional crisis.

[Voltaire2]

21. "Impeachment is the Constitutional equivalent of indicting the president" - i.e. it is equivalent to

a grand jury.

That's Tribe's point. The impeachment process can continue in the House as long as the majority party decides. It is entirely up to them if and when to present the indictments to the Senate.

[Azathoth]

22. Again, no, it doesn't work that way

A grand jury can certainly continue its work after returning a true bill, but once they've indicted someone, the process for prosecuting those charges automatically moves beyond them. They don't get to "hold on" to an indictment and control when and how it is prosecuted. They can later issue a superseding indictment and add charges, but they can't pocket an indictment.

Tribe is making an even more looney version of the "McConnell doesn't really need to hold a trial" argument -- the idea that one House of Congress can rewrite the impeachment process simply by refusing to acknowledge what the Constitution says.

I get that he's desperately grasping for a way to delegitimize Republicans' sabotage efforts the same way they're deligitimizing the entire process, but this is Constitutional crisis stuff and he should know that.

[FBaggins]

26. Nothing in the Constitution makes the House the prosecution

So that analogy was specious.

[onenote]

39. But the Senate rules do specifically make the House the prosecutors.

So how would this Senate-initiated impeachment trial without House prosecutors work? The Senate would vote to change its rules to provide some other mechanism for the presentation of the evidence? If you think that rules change would get a majority of the Senate you're dreaming.

[FBaggins]

41. I don't think the Senate would be any less willing to change their rules than the House

The Senate would vote to change its rules to provide some other mechanism for the presentation of the evidence?

I doubt that's how they would play it. I think they would set up an empty chair for the prosecution and let the defense rebut the articles and report directly... or act as a court and tell the "prosecutors" to show up or forfeit for failure to prosecute.

Of course... I don't expect any of that to happen because I don't expect the House to try this nonsensical idea. The House leadership actually wants this done quickly to avoid the primary season. I'm sure that the Senate would let them sit for weeks or even a couple months before forcing their hand.

[LakeArenal]

3. This could prove interesting....

Proceed.

[pecosbob]

5. Theoretically the only deadline is the end of this Congress...right after the next election

The Articles would expire with the Congress. If Dems gain control of the Senate in the upcoming election they (Chuck Schumer) would set the rules in the Senate for any subsequent impeachment proceeding.

[Fiendish Thingy]

15. I don't think so- see Clinton's impeachment

Clinton was impeached in Dec 98, but his trial wasn't held until Jan 99, when the new congress was seated.

[pecosbob]

16. I should have said that I believe their only option would be to delay the vote indefinitely

[FBaggins]

42. Clarification

The authority of the managers appointed by the House expires when the term ends (so new ones would have to be appointed by the new House)... but the articles wouldn't "expire".

[pecosbob]

43. That was my point if poorly stated

If the articles were not voted on by the House by the end of the session they would have to be re-authorized by the new Congress.

[Thomas Hurt]

6. Tell them they won't get the Articles until the SC hears the tax and subpoena cases.

[onenote]

10. Legally they might be able to do so, but politically/practically they won't

The die already has been cast. Schumer has proposed a trial schedule in early January and there is no chance that wasn't coordinated with Pelosi. So those imagining that the House would sit on the impeachment articles until....whenever (those who propose this strategy never seem to say exactly when they would want the articles sent over to the House) can give it up already. Not happening.

Among the practical and political reasons Pelosi and Schumer have scuttled this idea are (1) it would hand a huge PR victory to the Republicans who would be all over the media talking about the rush to a sham impeachment that the Democrats won't even allow to go to trial and (2) would put Democratic members of the House on the spot by forcing them to vote against sending the articles to the House.

This last point needs to be emphasized: Pelosi cannot simply shelve the articles. Any member (including any Republican member) can offer a resolution calling for the House to appoint impeachment managers and to deliver the articles to the Senate. That resolution is considered "privileged" in House parlance and would have to be voted on immediately. To kill the resolution, Democrats who just voted to adopt the articles would have to publicly vote to sit on them until some undefined point in time. Not. Going. To. Happen.

[bluestarone]

12. Not to argue here, ( i'm 99% sure you're right) BUT

Couldn't The house Dems. use the QUOTES from Graham and McTurtle as a reason to withold? (Just seems reasonable to me that they could decide to hold back) Would be interesting AND i think they would have lot of support.

[onenote]

19. Let's say the Democrats used the quotes as a reason to withhold

When do the Democrats finally let the articles go to the Senate? What is the event that changes things? McConnell and Graham saying, "we're sorry, we'll keep an open mind"? Graham and McConnell recusing themselves (which they wouldn't do without demanding that certain Democrats also recuse themselves, such as Klobuchar, who was quoted as saying she couldn't see herself not voting to convict)? And does anyone think the outcome would be different without Graham and McConnell?

Again...what is the endgame from holding up the impeachment trial?

[PRETZEL]

34. I think this is a point that seems to be missing,

both sides, whether it be McConnell, Graham, Kennedy, et al who have been on record as never voting for removal would be offset by the number of Democratic Senators who are on the record as saying that they would definately vote for removal.

Better question maybe, who (and in what numbers) are the Senators who will have an open mind, listen to the evidence and will make informed choices based off that.

Show trial, short trial, long trial, I don't think it matters much. The Dem's reports are the evidence by which the Senators must make their decisions off of. I would hope that between now and the date that the Senate receives the Articles, they and their staffs would have had time to read the reports and will be able to vote based off those reports.

[lame54]

11. McConnell and Graham may have opened that door

[ThoughtCriminal]

13. Meanwhile....

Announce continuing and additional investigations and possibly more Articles of Impeachment.

I still believe they have gone after EVERY Impeachable offense. Not doing this create a precedent that Trump's lawlessness is acceptable.

[Vinca]

17. Trump, McConnell, Graham, et al. don't give 2 shits about laws.

If Dems decide it's a good idea to hold it, then hold it. If they decide it isn't, send it. If the Orangutan, the Turtle and the Beady Eyed Rat don't like it they can take it to court.

[hlthe2b]

18. Roberts does, though. He'd not agree to open an impeachment trial sans legally referred articles

from the House.

[FBaggins]

27. Roberts has no real power in the matter

I rather doubt that he would allow a scenario where the House controlled when and whether the Senate could hold a trial once the impeachment exists. But even if he did, all of his decisions are subject to the will of the majority.

Of course... his role only exists once a trial begins... which makes it hard to lean on his imagined decisions.

[hlthe2b]

28. Of course he does. He can state the obvious.That no impeachment proceeding in the Senate can begin

until articles have been REFERRED to the Senate from the House.

He is NOT powerless. The constitution gives him that much latitude.

What the hell do you think they are going to do? Assign Lindsey to take the SCOTUS CHief Justice's place?

Even his issuance of a terse statement stating the obvious would be sufficient to knock this BS off the track.

[FBaggins]

29. How is that "obvious" ?

There is no such requirement in the Constitution. It doesn’t say that they have the power to try just those impeachment that the House decides to refer to them. It certainly doesn’t give the House the power to determine whether the Senate’s rules are acceptable.

[hlthe2b]

30. In your dystopian view of this country, no rules exist, But there is no more

authority to convene an impeachment trial in the Senate without duly referred articles from the House, than there is for the Senate to send a bill to Trump that has not been voted on by the House.

So, continue to argue as though there are no predicates. Maybe McConnell will take you on as a consultant. Clearly, in the real world, the House Judiciary brings in real constitutionalists and even in your view of a totally dystopian Senate, McConnell still knows there are some lines he can't cross.

Maybe we will get to your view where there are no rules and thus chaos rules. How sad for you that you believe we are there now. If I prayed, I would surely do so to ensure that level of constitutional collapse never happens.

In the real world, true constitutionalists like Tribe, Katyal, Eisen, Vladek, David Golove, Chemerinsky, Pamela Karlan, Matz, Boies, and others continue to be those worth listening to and they surely do not take your view.

[FBaggins]

31. Once again... "Duly referred" is not a constitutional term

I'm not saying that "no rules exist"... I'm saying that the one you're making up doesn't exist. There's a single undeniable rule that you keep dodging... the Senate has the power to try ALL impeachments.

You're imagining a type of impeachment that the senate cannot try... when the Constitution clearly says that no such thing exists.

So, continue to argue as though there are no predicates.

No predicates? You mean like asking you to provide an example of any impeachment that the House kept the Senate from trying? Pshaw... that would be silly.

McConnell still knows there are some lines he can't cross.


The line proposed to be crossed is the unprecedented decision to vote impeachment and try to keep the Senate from acting on it.

[hlthe2b]

33. You claim that the Senate can intitiate proceedings for which the House has not completed.

There is NOTHING absolutely NOTHING that defines timelines for the House to complete its work. If it is still in process and has not formally referred articles to the Senate, then there is nothing--no predicate whatsoever. You are instead arguing that the Senate can initiate an impeachment proceeding out of thin air. Simply by observing what is happening in the House. That is ludicrous. I suppose that is along the same line of argument that some on the right are making to suggest that Trump's tweets are the equivalent of law. It is bullshit.

[FBaggins]

37. Nope

It's you that's claiming that "completed" is not when the House votes an impeachment... it's still in their hands for some undetermined time after that.

There is NOTHING absolutely NOTHING that defines timelines for the House to complete its work.

And also nothing that says that they have any discretion at all.

You're intentionally ignoring the fact that we're not talking about a timing issue. We're talking about the House inserting themselves in determining whether they think a Senate trial will be performed properly. This isn't a new fantasy for Tribe. It's the same problem he's been grappling with for months. He wants to create a scenario where the House can effectively impeach but Trump can't claim an acquittal. He's been coming up with theories since long before McConnell made clear that he wasn't exactly unbiased.

And that's the beginning and end of the debate. You aren't arguing what the process ought to be... you're arguing that the Constitution doesn't say "The Senate shall have the sole Power to try all Impeachments"... it instead says "The Senate shall have the sole Power to try all Impeachments unless the House determines that the Senate is politically biased". And you laughably think that Roberts (who... spoiler alert... is also biased) would support such a reading.

[hlthe2b]

44. Utterly ridiculous and vacuous arguments.

I won't waste my time further.

[FBaggins]

45. Thanks for the entertainment

Yeah... we'll all just pretend that you could easily deal with it... but are just too busy. So far I just see dodging and bluster.

While you're not wasting your time:

Laurence Tribe... meet Laurence Tribe

But to think of the House of Representatives as akin to a prosecutor or grand jury is misguided. The Constitution’s design suggests a quite different allocation of functions: The Senate, unlike any petit (or trial) jury, is legally free to engage in politics in arriving at its verdict.

[Azathoth]

32. "true constitutionalists" lol

In other words, people who tell you what you want to hear at a given moment.

Hint: Dershowitz has similar if not superior academic bona fides to Tribe. The only difference between the two is Dershowitz isn't telling you what you want to hear.

[hlthe2b]

35. LOL. Who next will you refer our way as the true expert? Giuliani?

[Azathoth]

36. There is no "true" expert. But that's part of the beauty of the Constitution

It was intentionally written to be understandable by the common, modestly-educated man. Yes, there is a whole elaborate body of con law doctrine that has been built up over the centuries, but none of that supersedes the plain meaning of the text.

The House impeaches, and once it has done so, the Senate tries. Once the House Journal records it has drafted Articles of Impeachment and approved them by majority vote, the president is impeached and the Senate takes over. There's no provision in the Constitution limiting the Senate's power while the approved articles are "in the mail".

[FBaggins]

38. And the trump card (pun intended)...

... is how it would play out if and when the Senate decides to begin the trial post-impeachment.

Who does Tribe thinks would make the final ruling?

[MissMillie]

40. Probably the same place in the Constitution where

it says that the Senate can hold on to a Supreme Court nominee for several months while their pResdential nominee colludes w/ Russia to rig an election.

Just guessing.