Laurence Tribe : the Senate can't require the House, to "immediately" whatever is

[syringis]

Link to tweet

Senate rules requiring the House to “immediately” present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules. It’s up to the House when and how to prosecute its case in the Senate

[FBaggins]

1. That's a non-unique argument

The House can’t require the Senate to wait for them either.

It’s up to the House when and how to prosecute its case in the Senate

Sorry. The same principal applies. The House only gets to “prosecute” because that’s the rules that the Senate created for the trial. The House has no power to enforce that rule or keep them from changing it.

What’s worse is that Republicans don’t seem like they’re in any rush. They were hoping to run the trial into February and influence the primaries... but that would force them to hold weeks of it... leaving the possibility that something new would come out. Now they just have to let the House delay for a few weeks before they force their hand.

[shawn703]

2. If they don't have any Articles, they can't hold a trial

Maybe they should hold off on transmitting them until the primaries are wrapped up. If the cloud of Trump not being “exonerated” after being impeached hangs over him in the general, oh well.

[FBaggins]

3. Sez who?

Where does the Constitution say that?

More importantly... who would judge whether that was required for a trial?

“ Article I giving each house the sole power to make its own rules.” cuts both ways

[Bernardo de La Paz]

8. Sez logic. If you don't have something you can't use it. . . . nt

[FBaggins]

12. The articles are public

The Constitution says that the Senate has the power to try ALL impeachments. “Logic” says that you can’t modify that with “unless the House says you can’t “

[UpInArms]

28. Without a management team delivering the Articles, the senate has ...

Nothing ...

[FBaggins]

34. Sez who?

When they start the trial... who would object that they can't start without physical delivery of the Articles? Who would finally rule on that objection?

Just as the Senate cannot say "deliver paperwork to use within one week" (let alone "immediately&quot ... the House cannot say "do not begin until we say you can".

[DetroitLegalBeagle]

60. Exactly

The 2 houses in Congress cannot control the other, outside of the Constitutionally mandated permission needed for long recesses.

The Articles of Impeachment are public and in(or will be shortly, I forget how often its published) the Congressional Record. That's it. The articles do not have to be physically handed off to the Senate. Are bill's physically handed over for Senate consideration? No, they are voted on, recorded in the journal, and if passed, the Senate takes it up when it sees fit.

[FBaggins]

64. One error there

I think that bills actually are physically handed from one chamber to the other... they certainly are conveyed physically between Congress and the White House for signature/veto.

[DetroitLegalBeagle]

82. You may be correct

My impression is that the Senate typically already has a companion bill for ones in the House and are free to act on it when they please. For laws, they do not need to wait for a copy to be handed to them as way of "giving them permission" to start working on it. Now for impeachment, obviously there are no companion articles since the House owns it, but the principle still stands, they do no need to wait for physical paperwork, only a passing vote. Hope that make sense, haven't fully woke up.

[napi21]

208. I read this on another post here on DU. RE: the rules..........

Senate rules on impeachment require the Senate to begin action "immediately" after receiving notice from the House that impeachment managers have been appointed. When such notice is received from the House, the rules require the Senate to "receive" the managers to present the articles and upon presentation, the Senate must begin the trial at 1:00 pm the day after the presentation. https://www.govinfo.gov/content/pkg/CDOC-99sdoc33/html/CDOC-99sdoc33.htm

So, under its own rules, the Senate cannot begin its part of the impeachment process until the House notifies them that managers have been appointed - meaning that it's completely up to the House when the Senate process is triggered. Until Pelosi appoints managers and notifies the Senate thereof, there's nothing for the Senate to do.

I don't know the answer myself but this exp. sounds convincing to me.

[FBaggins]

209. Not much wrong in there... but also nothing that rebuts the argument

One error to note is that a rule that says that you do Thing B after Thing A happens... would not be construed by a court to say that Thing B is forbidden without Thing A - unless the rule said so.

But that misses the point that Tribe is making, but not recognizing in reverse. Both chambers make (and can change) their own rules. So we can't say that the Senate "cannot do X under their own rules" when the rule can be changed tomorrow to say the opposite.

[Eyeball_Kid]

72. So your thinking is that...

... the Senate only needs the few pages of public documents to commence with a quickie trial. And that they don't need the volumes of supporting documentation that underlies the articles. There would be no discussion, no debate, no witnesses; just two articles presented on any given morning followed by an immediate vote, if I get your drift correctly. It would be something on the order of a resolution to encourage employers to give paid family leave to parents of a newborn, yes?

Sure, the Senate could do that. They would sully their own integrity and would diminish for all time their power as a deliberative body, but, yes, it's possible. Anything is possible with Trumpian cultists in charge.

[uponit7771]

211. "They would sully their own integrity" Moscow Mitch cares about money and power not integrity & ...

... the other senators are taking Russian money like Kevin McCarthy did and "gave back"

[Bernardo de La Paz]

89. No jury has a right to try until they have been given the charge by the prosecutors (HOUSE). Logic.

Article 1 Section 2, Clause 5: The House of Representatives ... shall have the sole Power of Impeachment.

The exact sequence is not defined in the Constitution, but there are well established rules:

Also, the House will adopt a resolution in order to notify the Senate of its action. After receiving the notice, the Senate will adopt an order notifying the House that it is ready to receive the managers. -- Wikipedia

Thus it is clear that the Senate can't begin until they are officially notified that the House is ready to provide the managers.

The House has not chosen managers yet.

The House has not officially notified the Senate yet.

[FBaggins]

93. Untrue

Because the Senate is not just "jury" (as the Chief Justice ruled the last time around)... they are the court. And the court can absolutely act on an indictment that prosecutors fail to bring.

Thus it is clear that the Senate can't begin until they are officially notified

That falls to the same analysis that Tribe presents in the OP. That's a House rule. The Senate rule says "immediately"... but he argues (correctly) that the Senate can't really require that. The House rule says that they'll notify the Senate (I point out that the rule doesn't say "may adopt a resolution if they think the Senate is ready" )... but the same argument says that the House can't really bind the Senate on how and when a trial occurs... or even IF.

[Bernardo de La Paz]

96. Fine. No COURT has a right to try until they have been given the charge by the prosecutors (HOUSE).

[FBaggins]

101. Already answered

Yes... they absolutely do.

If a grand jury brings an indictment and the prosecutors delay proceeding to trial... the defendant can go to court and ask the judge to force the matter (right to a speedy trial, etc.). The court can absolutely set a date for trial without the prosecution asking the court to begin. And the court can dismiss the charges for failure to prosecute if they don't show up.

[dumbcat]

190. Then the Senate could say impeachment didn't happen.

[Bernardo de La Paz]

204. ... until the House actually tenders it. . . . nt

[FBaggins]

210. The Senate can't say that... but the House might

I don't see any court taking the case, but if one did... I think it's pretty clear that "the power to try all impeachments" would be interpreted to mean that if an impeachment exists... the Senate can try it. But the court doesn't have the power to determine whether or not an impeachment exists... because the House has the sole power to do that. My opinion has always been that "the House" or "the Senate" can only speak through majority votes. So when an impeachment vote is held and it passes... an impeachment exists.

But I could see a court deferring to the House regarding whether or not one exists. They could plausibly claim that the impeachment process includes the naming of managers and the conveying of the Articles to the Senate. Then and only then does an impeachment exist (and thus then and only then does the Senate have the power to hold the trial).

That scenario would allow Pelosi to delay as long as she wants... or even decline to proceed... but it would also mean that impeachment didn't happen.

[syringis]

23. You're missing the point.

Republicans have made numerous public comments which raise legitimate concerns for a fair trial.

[FBaggins]

57. Absolutely!

But the House isn't given the power to judge the legitimacy of the Senate's actions... any more than the Senators who publicly challenged the House's process have the power to declare it null and void.

What your saying is probably the real plan here. Pelosi just wants make it clear to the public that the House doesn't consider THIS Senate's acquital to be justice as things stand now. THAT is worth saying and gimmicks that get it some coverage could be clever strategy... but she can't win in the end if that's the fight.

I suspect, however, that "the fight" is really just a strategy to give Schumer a little leverage in negotiations.

[wnylib]

77. If the impeachment process is still ongoing,

with continued investigations and more impeachment articles yet to come, is that reason for the Senate to wait on completion of all the articles? Or, alternatively, to negotiate a fair trial now?

If the Senate begins a trial on the 2 articles already passed, and the House continues to investigate and add articles, I can envision a perpetual impeachment process tying up both houses for months.to come, into and past the 2020 election.

[FBaggins]

88. Each impeachment is it's own thing

It's a remarkable commentary on Trump that we're even talking about multiple impeachments.

But the answer doesn't change. This isn't an "ongoing" impeachment. There are now two articles and the book is closed on them. Additional articles coming in a few months would be an entirely different trial. If the House started a process that looked like more articles would appear next week? The Senate could choose to wait and try both at the same time OR deal with them independently.

I can envision a perpetual impeachment process tying up both houses for months.to come, into and past the 2020 election.

Sure. But let's not forget that the goal is to influence public opinion for the 2020 election. Pelosi probably scores some points with the public by insisting that the Senate trial be fair... but perpetual impeachments for months would very likely backfire (absent explosive new evidence). Our presidential candidates want coverage of their own... they don't want impeachment to run all of 2020.

[wnylib]

100. Of course we don't want to overshadow our

candidates. Trump sucks the air out of everything already.

I'm just trying to understand the point of currently holding onto the articles as a trial negotiation move if the Senate could proceed anyway.

Since the House committees will continue to investigate, I also wonder how any future discoveries will affect -- or counter -- the spin and accusations the Republicans will be spewing in the general election.

[Laura PourMeADrink]

141. That's very interesting. That the House can't add

An article. If McGahn we're to testify and substantiate the obstruction of justice, they would have to start over?

[FBaggins]

144. Sorry.. they CAN add a new Article

They just can't change the two that have already passed.

If McGahn we're to testify and substantiate the obstruction of justice, they would have to start over?

The House can impeach any way that it wants. This includes someone standing up tomorrow and saying "Impeach the MFer for that ugly tie he's wearing!" If the House gets a majority vote on it that same day... he's impeached again. That's "starting over" and shortening the process... But it's a new Article (and potentially a new trial if the Senate wants to hold it that way).

[Laura PourMeADrink]

148. Well guess Mueller findings ship has sailed. Too many

on record as saying nothing was bad enough. No unequivocal declaration of impeachable offenses at the time. Hard to explain that if you drug out now.

It would be SO interesting to know what Mueller thinks.

[Recursion]

99. But delaying the inevitable doesn't change anything

It's not like it's going to result in any pressure from their base to actually do a trial. The opposite, really.

[Cuthbert Allgood]

54. Also, by the way, sez Laurance Tribe

Probably one of the foremost Constitutional scholars. He literally wrote the book my wife used in her Con Law class in law school.

But, yeah, random internet person makes good points, I guess.

[FBaggins]

59. Your "appeal to authority" fallacy is accepted

I could point out that plenty of other "foremost scholars" disagree... and then we could both say "well I choose to listen to THEM over YOU" - but that's not really a debate.

Unfortunately for Tribe's position... there's an exactly equally "foremost" scholar who said:

"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."

Care to guess who that was?

[Cuthbert Allgood]

69. It's not an appeal to authority. It's data for a claim. And it's solid data.

Yeah. It's Tribe in the Post.

That is not on point. That does NOT say they can run a trial without the Articles being presented. It means that they don't have to be "impartial" jurors. They can use politics to reach their verdict.

Do you have him or any other Constitutional scholar saying that they Senate can run a trial if the House doesn't present the Articles? They could pass their own bill saying they don't agree and wouldn't vote for removal. Sure. But they can't run the trial until the House gives them the articles.

[FBaggins]

74. Which takes us full circle

The House is claiming (were they to adopt this strategy) that they would withhold the articles because they're not impartial jurors. Except that the Constitution gives them neither the power to pronounce judgment upon the other chamber, nor the power to set their rules.

It's not an appeal to authority

Of course it is. It's the very definition of one. If there are constitutional scholars on both sides (as there always are) and you say "I'll take his word over yours" the fallacy is complete.

[Cuthbert Allgood]

85. That's a whole different argument.

You have been making the claim that it doesn't matter if the House sends the Articles; the Senate can just start the trial. That is patently not true. The Senate rules, the Constitution, pretty much every Constitutional scholar says your point is not true.

If we are now going to talk about whether the Senate needs to be impartial, that's a different argument all together. It's not coming full circle.

Unless you are saying that the House can't withhold for that reason. I don't believe it matters what the reason is for them withholding it. The trial can't start until they send the Articles to the Senate.

It's not a fallacy to use an authority as a claim. And I have seen you use ZERO authorities that say the opposite about the Senate being able to start the formal trial without the House delivering the Articles. I'll wait for that, though. And I would also argue that if you do happen to find someone saying what you are saying, the quality of the authority becomes important. I can find some random asshole saying whatever I want on the Internet. I have Tribe supporting my claim. I'm pretty confident in that.

[FBaggins]

98. Not really

It's their justification for holding back (were they to actually do so).

The Senate rules, the Constitution, pretty much every Constitutional scholar says your point is not true.

Untrue. Tribe admits that the Senate rules say "immediately"... so you can't argue that they say my point is untrue. The Constitution says that the Senate has sole power to try all impeachments. You have yet to cite a single authority that "all" somehow means something other than "all"... and Tribe is not "every Constitutional scholar".

Unless you are saying that the House can't withhold for that reason.

I'm saying that the House can't withhold it at all. They can choose to do something other than impeachment (as Tribe suggested in June)... but once there IS an impeachment... it's part of "all" in "all impeachments".

It's not a fallacy to use an authority as a claim.

You'll have to take that up with the fallacy police. But the fallacy isn't in citing someone who is an authority... it's in saying "He is and you aren't and thus your argument falls"

[Cuthbert Allgood]

108. I don't think they need a justification. Have never heard they do.

The Senate does not try impeachments. They try removal after an impeachment. The House can't try removal and I have never claimed they can.

Tribe says the House doesn't have to send the Articles to the Senate. You have given me nobody that says they have to.

I have a constitutional scholar saying the House doesn't have to send the Articles to the Senate. You have nobody but yourself. That isn't a fallacy to say that the constitutional scholar is a better source than you are.

[FBaggins]

112. "The Senate does not try impeachments" ???

Despite the Constitution saying "The Senate shall have the sole Power to try all Impeachments."

Tribe says the House doesn't have to send the Articles to the Senate. You have given me nobody that says they have to.

Nor have I tried. What I have said (and which has gone unrefuted) is that there is not rule that says "all impeachments" means "all impeachments that the House sends them". IOW... the Senate doesn't need the House to send anything. Both chambers have rules currently that says that's the way it's supposed to work... but (as Tribe points out)... neither chamber has the ability to create rules that bind the other chamber in their constitutional roles. The Senate can't tell the House how/when/if to impeach... and (unacknowledged by Tribe, but just as obvious) the House can't tell the Senate how/when/if to hold a trial.

[Cuthbert Allgood]

115. Right. My miswording. The House impeaches. The Senate tries the impeachment to remove (or not).

The House has to appoint managers and then send the Articles to the Senate via the managers. There is nothing (and this is Tribe's point) that says the House MUST appoint managers and send the Articles to the Senate after impeachment. And there is nothing that says the Senate can hold the trial without the House appointing the managers.

[FBaggins]

117. Sigh

There is nothing (and this is Tribe's point) that says the House MUST appoint managers and send the Articles to the Senate after impeachment.

Again... this is true. But there is also nothing (and it exactly parallels Tribe's point) that says that the Senate MUST wait for the managers... or that mangers even need to exist (other than current Senate rules that can be changed).

And there is nothing that says the Senate can hold the trial without the House appointing the managers.

Yes... there certainly is. Still unanswered in scores of posts here and elsewhere... how on earth do we read "sole Power to try all Impeachments" in a way that means "but not this one"??? They could try to argue that it isn't an impeachment until they say that it is... but what does that get us? If it is an impeachment - then the Senate has the power to try it.

[Cuthbert Allgood]

120. There are clear Senate rules that state they have to wait

It has been posted on this thread.
https://www.democraticunderground.com/?com=view_post&forum=1002&pid=12799362

The Senate can only hold the trial if the House sends the Articles to the Senate via the managers. In all of this, you have provided NO CONSTITUTIONAL SCHOLARS that say your point is true. I'm sure you've googled it. Tribe says my point is true. That adds a huge amount of weight to my claim. I don't know how to argue with someone who won't recognize evidence from valid sources. You are just wrong. Until you provide some data/evidence to support your claim beyond your reasoning, I have no inclination to believe you. Sorry.

[FBaggins]

145. That was actually a correction of Tribe

But it isn't relevant to the disagreement... because you're talking about Senate rules in the context of Tribe's claim that explicitly confirms that the House and Senate make and can change their own rules.

[SlimJimmy]

215. Tribe also said that the travel ban was unconstitutional.

So much for his expertise, huh?

[Cuthbert Allgood]

216. You mean the one courts rejected as unconsitutional?

Seems like a weird flex, but you do you.

[Cuthbert Allgood]

121. Also, I don't know why you are flexing so hard on McConnel/RW talking points.

You are saying what the Republicans want us to believe but it not something that the Constitution nor the Senate rules support.

[FBaggins]

146. I'm not. I haven't seen any RW argument on the matter at all.

You are saying what the Republicans want us to believe

Nope. As I read it... the Republicans will be perfectly happy to let Pelosi run the clock down for several weeks. He wants the trial to take place during the primaries - pinning our candidates down and sucking up the oxygen from the campaign.

[StarfishSaver]

125. What do you think the "trial" would look like with no managers and no Chief Justice?

There's nothing stopping the Senate from retrying Clinton's impeachment if they want to, but that doesn't mean they're going to do it, because that would be stupid.

The same applies here. Of course, the Senate could decide to have a trial without the House referring the impeachment to them. But that would be stupid.

[FBaggins]

147. Sorry... it's an unsupportable fantasy that Roberts would take Pelosi's side

With no managers?

Either the show trial some of them want (calling the whistleblower... Biden and his son... etc...) - or a simple vote on dismissal on the grounds of failure to prosecute by the House.

There's nothing stopping the Senate from retrying Clinton's impeachment if they want to, but that doesn't mean they're going to do it, because that would be stupid.

Sorry. You've confused me. The certainly can't retry after he was already acquited.

Of course, the Senate could decide to have a trial without the House referring the impeachment to them. But that would be stupid.

Just as stupid as getting to March and saying that the House hasn't decided whether to send it over or not. Which is why I don't expect either to happen.

[StarfishSaver]

156. That's not "taking Pelosi's side."

But some people are certain that Pelosi's got this wrong and Democrats are going to fail, seem impervious to facts or reason, so ...

[FBaggins]

161. It would be in Tribe's imagined scenario

As things stand now? She hasn't gotten anything wrong. She's just trying to gain some leverage in a negotiation.

If this were to go for several weeks and she refuses to appoint managers in an attempt to keep the Senate from acquitting? Then she doesn't have a chance at Roberts backing that play.

I don't expect it to happen. I also don't expect her to get much unless a couple of R senators get "concerned" - but it will give her ammunition to point out the obvious (that McConnell is acting politically).

I haven't had an issue with Pelosi yet and don't anticipate one.

[Karma13612]

182. Then answer me this:

Without managers from the House, who prosecutes the trial in the Senate?

[FBaggins]

186. Whoever the Senate decides

The use of the House managers as prosecutors is not in the Constitution. It's in the Senate rules. If the House chooses not to play by the Senate's rule, they have the flexibility to do lots of things:

Rule based on the Articles themselves - without prosecutors
Allow the Senate minority to appoint someone to prosecute (not a Senator)
Dismiss the case for failure to prosecute

[pnwmom]

196. They don't have the authority to end the H's investigation and decide the two articles

thus far voted upon will be the ONLY articles voted upon.

[FBaggins]

197. Nobody has said anything about controlling the House's ability to investigate

Nor would starting a trial (with or without the House) mean that those were the ONLY articles.

There can be multiple impeachments and multiple trials. The Senate has no ability to stop investigations OR impeachments... they DO control trials.

[pnwmom]

200. The Senate doesn't control the initiation of the impeachment. The House does.

And it hasn't completed its job, and it won't have completed its job, till it delivers the articles of impeachment to the Senate which THEN conducts the trial.

The Senate can't grab impeachment articles from the Internet and consider it all good. The internet didn't exist in the founders era, of course, but this would have been equivalent to running into the House office and grabbing a copy of the articles there, instead of waiting for it to be voluntarily delivered from the House to the Senate.

[AncientGeezer]

217. "The Senate can't grab impeachment articles from the Internet and consider it all good."

That wasn't suggested...that I have read.
BUT...there is no Constitutional rule that there has to be a transfer of House Articles for the Senate to consider what is already a public record.

The House passed the Articles.....nothing stops the Senate from debating..'trying' them in lieu of actually receiving them....won't be an acquittal...per se...but it will help them write political ads for the GE.

[Bernardo de La Paz]

91. Not a fallacious Appeal to Authority. Tribe makes cogent arguments which you have not refuted. . nt

[pnwmom]

126. It's not a fallacy when the person IS an authority and the poster is anything but.

The quote you just posted doesn't address the issue at hand.

The Senate is legally free to engage in politics. But the Senate can't appoint House managers, and that's who the Constitution says run any Senate impeachment trial.

[FBaggins]

131. That isn't how the "appeal to authority" fallacy works

It isn't overcome by the person actually being an authority.

But the Senate can't appoint House managers, and that's who the Constitution says run any Senate impeachment trial.

Please present the Constitutional text involved.

Hint - it doesn't exist. There is nothing in the Constitution that says that the House even gets to be involved once they impeach. All of that is the current Senate rules for how impeachment trials are handled... and just like House rules are controlled by the House... Senate rules are controlled by the Senate. There's similarly nothing that says that the House "runs any Senate impeachment trial". Just the opposite... it explicitly says that the Senate runs the trial.

[honest.abe]

163. I believe the House is involved in the Senate trial.. at least the Managers are.

They are the ones who will present and argue the case to the Senate. I know this is not in the Constitution but that is normal standard procedure as we know it now. I suppose the Senate could change the rules but that is another matter.

[FBaggins]

167. That's the current model, yes

They are involved... and I'm pretty sure that they negotiated some of the rules when they got there (of course... both chambers were republican-controlled at the time)... but the Senate has the power to make and change their own rules. That includes who (and whether) argues the case to the Senate.

[LiberalFighter]

178. You got it!!

[Upthevibe]

71. Cuthbert Allgood

Very good post! (Laurance Tribe vrs. random internet person) LOL!

[StarfishSaver]

66. Senate rules require the trial to start after the House notifies them managers have been appointed

and the managers present the Articles to the Senate.

Unless and until Pelosi appoints managers, notifies the Senate of said appointment, and the managers present the Articles, there's nothing for the Senate to act on.

I guess the Senate could just hold a trial, but it wouldn't be an official "impeachment" trial since impeachment wouldn't be before them, the Chief Justice wouldn't participate, so it would just make them look even more ridiculous than they would otherwise.

[FBaggins]

76. Two problems with that

1) To the OP... Tribe tells us that those same rules require the House to do so "immediately". They're going to be bound by one and not the other?

2) Those are Senate rules and (back to Tribe above)... they make and change their own rules.

[StarfishSaver]

86. The Senate rules don't require the House to do anything, much less do it "immediately"

The Senate rules only require the Senate to take certain steps on a specific timeline AFTER the managers are appointed and the Articles presented to the Senate.

Of course, the Senate can change those rules, but right now that's what's in place. And the Senate cannot tell the House what to do.

[FBaggins]

150. Much closer

If you want to argue that Tribe is wrong in other ways... I'm not going to disagree. The Senate rules are voluminous and I was willing to take him at his word. If you've read them all and disagree - I won't dispute it.

The Senate cannot tell the House what to do.

Of course not... but you're arguing that the House can tell the Senate what to do.

They can't.

Once again... we're scores of posts into the thread and nobody has a single theory that justifies "The Constitution says that the Senate has sole power to try ALL impeachments... but not this one"

The silence on that question is deafening.

[StarfishSaver]

164. I'm not arguing that Tribe is wrong. I'm saying you are

And I've never said the House can tell the Senate what to do.

You're arguing in circles and seem to just be trying to be contrarian.

[FBaggins]

169. Then you should re-read what you're replying to

It's Tribe's point that Senate rules require "immediately", but that those rules would be unconstitutional to the extent that they purport to require something of the House. I'm saying that he would be correct if that's the Senate rule... but in saying that it isn't their rule, you're correcting him, not me.

And I've never said the House can tell the Senate what to do.

I agree. You've recognized that the Senate can change their rules and that it's those rules that control.

You're arguing in circles and seem to just be trying to be contrarian.

Not really. It's just that moot court is one of my favorite pastimes and some of these arguments are coming into my wheelhouse. As I said... Pelosi hasn't said this (and I don't expect her to actually try)... and Tribe is really just playing the game to help us gain some advantage... but there are DUers thinking that this is a way out of the bind that we've been in since the impeachment process started. They think there's a way to keep the Senate from acquiting.

The only way for that to happen is for something new to blow up that convinces 20 Republicans to vote for removal. I don't think that Pelosi expects that to happen... and is (correctly) taking the path she thinks will make them pay at the ballot box. I don't think that she would try to actually say "if you won't play by rules, I'll take my ball and go home". It isn't her ball anymore.

[Bernardo de La Paz]

94. Tribe says Senate rules "immediately" DON'T (DO NOT) apply to the House. Read that. . . . nt

[FBaggins]

149. Um... that was the point of the very first reply on the thread

The Senate can't bind the House from its power of impeachment by the Senate's rules or actions... but the same argument applies in the opposite direction. The House cannot (by rule or action) tell the Senate "we won't let you try this one".

[pnwmom]

124. Per the Constitution, they can't hold the trial without the House Managers, and there aren't any. nt

[FBaggins]

154. Per the constitution?

Someone else posted that a bit ago. The Constitution doesn't say anything at all about impeachment managers. Let alone that the power to try ALL impeachments is actually predicated on something other the existence of an impeachment.

On edit - Apologies. The earlier reply was also to you.

[pnwmom]

158. The House has the sole power of impeachment.

Without the cooperation of the House, the Senate has nothing to try.

[FBaggins]

159. Note - They already did that

The Senate has the sole power to try ALL impeachments. The Constitution says not thing one about whether the House even has a role to play once an impeachment exists.

Does an impeachment exist?

[pnwmom]

162. The impeachment case won't be turned over till the House managers are appointed. Without the case

there will be no impeachment trial.

The Senate could always have a show trial, just for their amusement, but without the House case it won't be an impeachment trial.

[FBaggins]

166. There is no such rule

The constitution has no "unless the House decides not to send them" clause.

[pnwmom]

170. The Senate won't have the impeachment case that the House voted on unless the House sends it.

They can make up any fake show they want, but it won't be Impeachment, because only the House can impeach.

[FBaggins]

173. That's really an imaginary argument

The Senate does have the Articles. They're public. There is no rule that says "unless I hand it to you in 12-point Times New Roman font with one inch margins... and then recite 'One Two Three Four... I declare it now is Yours!' - you cannot exercise your power to try ALL impeachments". As I told Star, Pelosi can't say "play by my rules or I'll take my ball and go home" - because they make the rules for the trial AND they act as the judge when those rules are questioned.

Or, better put, there ARE "rules" that both House and Senate agreed to that detail the process from here... but they aren't binding on either party if one of them says "we won't be doing this step... so you can't do yours!".

We can say that it's "fake"... heck, we're already saying that. But we don't have the power to make it so in any legal sense. We can only shout it from the rooftops and hope that enough voters agree with us to blow out the 2020 elections.

[Azathoth]

20. They have the Articles. They were posted online and read on national TV

And the official vote approving them is now in the House Journal. There is absolutely nothing in the Constitution about the House being required to "transmit" the Articles after impeaching before the Senate can begin its trial

Tribe is *really* barking up the wrong tree here. This is a "check is in the mail" kind of argument.

[Cuthbert Allgood]

58. As I said elsewhere above, I'm going to go with Tribe over you. No offense.

Because, well, Tribe is the foremost expert on the Constitution and you are random person on the internet.

[StarfishSaver]

67. They don't "have" the articles

The articles have to be presented by the House managers in order to trigger the impeachment trial. Right now, the Articles are just a piece of legislation passed by the House but the Senate can't act on them until they are officially referred or presented to them.

[Bernardo de La Paz]

97. They have not officially been given the Articles. They are not officially given until separate House

They are not officially given until a separate House resolution is passed to transmit them to the Senate.

It is not just the Articles, but the official reports and the appointment of the trial managers by the House.

[ancianita]

6. What can the Senate do to force the House to turn over the case. Can there be a standoff.

If there is, what legal recourse is there.

[FBaggins]

9. Tribe's correct that they can't do anything to force the House

to turn over the case.

But there also isn’t any way the House can insist that a trial can’t be held until they turn it over. All of the rules for how the trial works are Senate rules... subject to the same principal that Tribe cites above.

[bucolic_frolic]

11. The Senate has nothing to try. They have no genuine Articles of Impeachment until

they receive them from the House.

[FBaggins]

14. Again... there is no such rule

The only rule you could claim exists within the Senate... and the “court” that would interpret that rule? Is also the Senate.

[bucolic_frolic]

18. I don't see it, or how it would play, or why any Supreme Court Justice would support it

It would be totally bogus, and viewed as bogus by the legal community and the public. It wouldn't fly.

[FBaggins]

25. And there you see the weakness of the argument

"How it would play" is entirely determined by the Senate. The House can't appeal rules of the Senate trial to the courts... it would get ruled on by (wait for it) the Senate.

There's no way that the courts would try to rule on a dispute between the House and Senate over their own individual rules. If the Senate creates a rule that says "All impeachment trials must commence within 100 days of the original impeachment vote or they can be dismissed" the Supreme Court likely wouldn't hear the appeal. They would cite the same article that Tribe cites.

[honest.abe]

81. Sorry to barge in here but I think the problem with your scenario is Chief Justice Roberts.

Roberts would have to play along with McConnell and his sham trial and I dont think he would show up unless he received official notification from the House Impeachment managers. And if he doesnt show up then I think the trial would not be legit.

[FBaggins]

90. Not a chance

I could see Roberts making some rulings that Republicans won't like (Rehnquist had one or two)... but he doesn't have the final say.

More importantly. I very much doubt that he would rule that the "The Senate shall have the sole Power to try all Impeachments" can be interpreted to mean "unless the House thinks it isn't fair"

[honest.abe]

92. Im not talking about a SCOTUS ruling.. just the interpretation of the standard procedures.

If Roberts doesnt receive official notification from the House impeachment managers, I dont think he shows up.

You do realize Roberts would be presiding over the trial in the Senate...right?

[FBaggins]

103. Notification to the Chief Justice does not come from House impeachment managers

It comes from the Senate... and all of the rules around that process are Senate rules.

Back to Tribe's original argument... no court is going to mess with the Senate's ability to make their own rules.

You do realize Roberts would be presiding over the trial in the Senate...right?

Of course. Though "preside" doesn't mean what you may think it means.

[honest.abe]

104. Right, but clearly Roberts will know McConnell is playing games...

forcing the trial without official notification from the House. I doubt Roberts would play along.

[FBaggins]

106. Um... let's not miss the obvious here

Pelosi is playing games too (if she were to actually try this... which I doubt).

This was part of Tribe's argument months ago. Everyone knew that the Senate would not convict and people were asking whether it makes sense to impeach if we knew that the Senate would acquit and Trump would claim to be exonerated. Tribe (and quite a few others) were trying to come up with a way to stain Trump with impeachment (or, in Tribe's earlier theory, something close to it) without allowing the Senate to vote to acquit.

It's a clever trial balloon... and fun to debate as a moot court exercise... but Roberts isn't going to agree that the House can keep the Senate from acting on an impeachment.

[honest.abe]

107. Pelosi's "game" is just fighting for a legitimate trial..

McConnell's game is just the opposite. I believe Roberts will see it that way.

[FBaggins]

111. You and I might see it that way

Roberts wouldn't... but wouldn't have to. There is no Constitutional power of the House (or Chief Justice) to evaluate whether the trial is legitimate. As Tribe unfortunately admitted when he floated his first theory... the Senate is free to be as political as they want in how they make their decision.

Roberts would wash his hands and say that the Senate makes their own rules (just as Tribe recognized above for the House). He would either rule that way... or (as with Rehnquist) submit the ruling to the "court" for decision (the Senate).

[honest.abe]

113. Roberts is a serious principled justice and would not want his legacy tainted..

by some sham trial that would be in the history books forever. I think he will say to Mitch I wont show up until you receive official notification from the House. That is the correct standard procedure which we must follow. In fact he may have already sent that message privately which may be why the Senate has not done anything yet.

[FBaggins]

116. Good luck with that

It's interesting to see such a high opinion of him here on DU... but I agree he would like to LOOK that way.

But I don't see any chance of him saying that the Senate must hold a trial that Pelosi agrees is fair or that the Senate can't have a trial at all if she doesn't let them.

[honest.abe]

118. He would simply be requesting that the Senate follow standard impeachment procedures..

that have been in place for hundreds of years. That's doesn't mean he is taking sides in the matter.

[Proud Liberal Dem]

136. I think that it's fair to say that nobody realistically believed that the Senate would convict

BUT what do you do when you have Senators (Jurors in this scenario) outright saying that they have already dismissed the evidence and/or planning to coordinate with the Defendant in the case who is on trial? In essense, they are outright planning a sham trial and are openly admitting it. They're refusing to allow witnesses to be called as well. Why should the House, which has invested a lot of time and effort in the AOIs hand them over to the Senate until there are assurances that they will get a fair and partial hearing in the Senate. I'm well aware that they could vote to acquit in the end, but at least we can have something resembling a fair trial in the Senate, right?

[FBaggins]

142. You shout it from the rooftops and hope that voters are paying attention

Which is what I think Pelosi is actually doing.

But there's no appeal from what the Senate decides to do (just as there's no way for someone to appeal that the impeachment itself was not valid).

but at least we can have something resembling a fair trial in the Senate, right?

We deserve one... and should vote out anyone who refuses to give us one... but we don't have an enforceable right to one (and Pelosi isn't empowered to give it to us). Tribe admitted this months ago when he floated his earlier version of this balloon. The Senate is free to act in an entirely partisan/political way.

[StarfishSaver]

127. The Chief Justice is NOT going to "preside" over a "trial" with no House managers in a process that

hasn't been officially referred to the Senate.

You can argue all you want that somewhere somehow that would be possible - just as it would have been possible for OJ's lawyers to try a case in front of Lance Ito without an indictment and without prosecutors - but that's not going to happen.

[Fiendish Thingy]

160. You are misinterpreting the phrase "sole power"

That clause means the Senate is the ONLY body that can try impeachments, but not that the Senate has the power to try EVERY impeachment, regardless of whether the house transmits articles and appoints managers or not.

The Senate rules currently prohibit conducting a trial until articles are presented by house managers. McConnell could try and change the rules to proceed without formal transmittal of articles, but even if he succeeded, I think we'd have a Constitutional crisis on our hands, regardless of your adamant opinion that the Senate proceeding in such a manner would be perfectly acceptable.

No one, except perhaps Breitbart, not even McConnell, is suggesting the senate can proceed without formal transmittal of articles from the house and appointment of house managers.

[FBaggins]

165. Not at all

You seem to agree (and I haven't seen a disagreement) that nobody else can try an impeachment... but the argument revolved around the interpretation of "ALL impeachments" - not "sole power"

The Senate rules currently prohibit conducting a trial until articles are presented by house managers.

Not really. They anticipate house managers (they certainly don't say "shall not proceed until..." ). And the key there is "currently". Pelosi wants a voice in how the new rules will be written - there's no valid argument that they can't be changed.

I think we'd have a Constitutional crisis on our hands

Once again... entirely unrebutted... the Constitution clearly and unequivocally gives the Senate the power to try ALL impeachments. The "constitutional crises" would be someone trying to enforce "not this one".

No one, except perhaps Breitbart, not even McConnell, is suggesting the senate can proceed without formal transmittal of articles from the house and appointment of house managers.

That's because no legitimate source has really suggested that the Articles won't be transmitted. It has only recently been even suggested that they consider not sending them over. I doubt very seriously that Tribe will extend the argument to a claim that the House can block a trial entirely by ANY action now that impeachment has passed.

[Fiendish Thingy]

177. As this will be only the third impeachment trial in US history, there is little precedent

Most of the process relies on "traditions", and since SCOTUS has no jurisdiction on internal congressional processes, there is a lot of grey, and we could indeed have a Constitutional crisis, depending how things unfold.

I'm sure you can agree that regardless, we will all learn a lot in the coming weeks...

Here's a hypothetical:

What if, tomorrow, McConnell changes the rules to remove the "receiving house managers" clause, passes rules that allow the senate to dismiss all articles without trial, and then, after the senate's "dismissal", Pelosi selects managers and sends over the articles.

Don't you think there would be a bit of a Constitutional kerfuffle?

[Fiendish Thingy]

181. Your certainty is refuted by McConnell's own words:

McConnell told reporters that it’s “fine with us” if Pelosi decides not to transmit articles of impeachment, averting a Senate trial of Trump.

“If the speaker wants to hold on to them, that’s fine with us,” the Republican Senate leader said.

Earlier, McConnell scoffed at the notion that Democrats could gain leverage by delaying the transmittal of the articles and told reporters that he is “not anxious” to hold a Senate trial.

“It’s beyond me how the Speaker and Democratic Leader in the Senate think withholding the articles of impeachment and not sending them over gives them leverage,” McConnell told reporters in a hallway of the Capitol. “Frankly, I’m not anxious to have the trial. … If [Pelosi] thinks her case is so weak she doesn’t want to send it over, throw me into that brier patch.”

So, even Moscow Mitch disagrees with you, and doesn't appear to plan to hold a trial unless/until Pelosi selects managers and transmits articles to the Senate.

[FBaggins]

185. I don't think you read that correctly

He's saying just what I speculated that he would. He wants the trial to take place overlapping the Democratic primaries. He's just saying that he isn't feeling any pressure.

If he is instead saying that he would be perfectly happy with the House failing to prosecute at all... I would disagree with him (on the principle that impeachments require a trial) - but maybe he feels like his members are better off spinning it as a weakness in the case and protects a couple of them from having to run on a vote to acquit. In which case... we should reevaluate whether we gain from not holding a trial.



So, even Moscow Mitch disagrees with you

Oh good. Maybe that will forestall the ridiculous "you're making McConnell's case for him" nonsense. But it wouldn't change the constitution.

[StarfishSaver]

172. Thank you

But I think it's a lost cause ...

[Bernardo de La Paz]

102. Yes, there IS such a rule. Look it up.

Jefferson's Manual, which is integral to the Rules of the House of Representatives,[19] states that impeachment is set in motion by charges made on the floor, charges proffered by a memorial, a member's resolution referred to a committee, a message from the president, or from facts developed and reported by an investigating committee of the House. It further states that a proposition to impeach is a question of high privilege in the House and at once supersedes business otherwise in order under the rules governing the order of business.

The House Practice: A Guide to the Rules, Precedents and Procedures of the House[20] is a reference source for information on the rules and selected precedents governing the House procedure, prepared by the House Parliamentarian. The manual has a chapter on the House's rules, procedures, and precedent for impeachment.

In 1974, as part of the preliminary investigation in the Nixon impeachment inquiry, the staff of the Impeachment Inquiry of the House Judiciary Committee prepared a report, Constitutional Grounds for Presidential Impeachment.[8] The primary focus of the Report is the definition of the term "high Crimes and Misdemeanors" and the relationship to criminality, which the Report traces through history from English roots, through the debates at the 1787 Constitutional Convention, and the history of the impeachments before 1974.

The 1974 report has been expanded and revised on several occasions by the Congressional Research Service, and the current version Impeachment and Removal dates from October 2015.[1] While this document is only staff recommendation, as a practical matter, today it is probably the single most influential definition of "high Crimes and Misdemeanors." -- Wikipedia

Cole, J. P.; Garvey, T. (October 29, 2015). "Report No. R44260, Impeachment and Removal" (PDF). Congressional Research Service. pp. 15–16. Retrieved September 22, 2016. An earlier version from 2005 is at https://www.senate.gov/reference/resources/pdf/98-806.pdf.

[FBaggins]

105. I think you missed the point

Tribe's argument is that Senate rules do not bind the House in their core constitution prerogatives (e.g., deciding on impeachment) and that the House can change their own rules.

The same argument applies here. You cite House rules - but House rules can neither override the Constitution nor bind the Senate in their core constitutional prerogatives (e.g., trying ALL impeachments).

My "there is no such rule" was saying that if House and or Senate change their existing rules, there is no rule above that that says that the Senate can't act until the House says so. The only such higher rule actually says that the Senate can try ALL impeachments... not just ones that the House decides to hand them.

[ancianita]

19. So it's to be assumed that those rules will be public. In writing.

Given the public pronouncements of the Senate leader re consultation with the White House, whatever rules are used would rightly have to be in writing.

Then the House would have to study those rules in prepping the managers' case.

[FBaggins]

29. Of course

Then the House would have to study those rules in prepping the managers' case.

Not if they, for instance, change the rule allowing the House to present the case at all.

[ancianita]

31. Got it.

[Karma13612]

184. The Senate has no trial and hence no power

Regarding the case until they get the official articles, and House Managers are appointed.

[FBaggins]

188. That keeps getting repeated... but it never get's supported

"the senate cannot try the case until..." directly contradicts "the senate has the power to try ALL impeachments". One is based on "here's how we've handled the paperwork in the past" and the other is in the Constitution.

I'd love if someone could at least imagine a plausible theory for how a paperwork process trumps "ALL" in the constitution. Instead... I keep getting a repeated variation on "they have to hand them a piece of paper or the Senate is stalled"

[Karma13612]

205. The Senate has the power to try all Impeachments

Fine, that means no one else can run the trial. Only the Senate.
But that doesn’t mean they can try a case that has not been presented to them.

Although they are not in the Constitution, agreed upon rules are in effect until they are changed.

Yes, the Senate can change their rules, but they can’t try a case that has not been presented to them.

Otherwise, they could just decide to try any sitting president without any articles of impeachment just for grins and giggles.

[syringis]

13. Yes, but...

I think Laurence Tribe synthesised at maximum to make it easily understandable to non-experts and due to Twitter's limits.

It goes without saying that while each house is fully independent, there are some core principles which by definition set limits.

[FBaggins]

15. And those core principles come from the Constitution

Which does not envision a type of impeachment that the Senate cannot vote on.

[syringis]

43. Not even!

Those I'm talking about, are the very core principles, which prevails any constitution wherever in the universe.

[FBaggins]

45. In the universe?

Um... ok. Can't help you with that one.

[syringis]

49. You missed another point.

I'm a non English native speaker, this is why my arguments are quite simple. However, I would have thought that the irony was obvious...

[FBaggins]

53. Sorry... I didn't see it as a language issue and didn't mean to imply that

I read it as saying that there was a principal higher than the Constitution that could overrule even that.

That isn't an uncommon (if unspoken) thought here and I'm sympathetic to it. "There just HAS to be a way to get rid of this guy! He does NOT have "the consent of the governed!" - I feel it to... but that isn't how the world works.

[Farmer-Rick]

48. How is the Senate going to impeach without the House?

I guess they could get their House toady RepubliCONS to present a limp prosecution...but how much of a sham trial does the Senate want?

No, everything I hear out of Trumpy Dumpy is he wants it over now. Since Moscow Mitch has turned the sham trial over to Dumpy, Trumpy is the final word on the abjecation of Senate impeachment power to king Dumpy.

[FBaggins]

51. The Senate doesn't impeach... but I get the point

I'm not sure they even need to hold a "sham" trial if the House actually tries this (which I rather doubt will actually occur).

They can just declare that the trial starts on February 14th and the House is invited to make their case. If they choose not to do so, the "court" will consider it a failure to prosecute and rule on the basis of what is contained in the Articles.

[Cuthbert Allgood]

55. It's a trial.

Think about a criminal trial. Think Law & Order. The district attorney goes to the grand jury to get an indictment. Once they get that indictment, they can take it to the court. Or they don't have to if they don't want to. Or they can wait a while. It's up to them. The court can't just say, "Well, we're starting the trial on Joe Blow now." No. That's not the court's role. They have to wait for the prosecutor to file the case. The House is the prosecutor here. The Senate is the court. The court can't start something until the prosecutor brings them the case.

[FBaggins]

78. Tribe answers that too

It isn't a criminal trial. But let's play that game.

The district attorney goes to the grand jury to get an indictment. Once they get that indictment, they can take it to the court.

Except that in that model, the House is both grand jury and prosecutor. But the Senate is both judge and jury.

The court can't just say, "Well, we're starting the trial on Joe Blow now."

They absolutely can. The prosecution doesn't set trial dates... both the prosecution and defendant ask the judge for what they want and the judge decides. If the prosecution says "we can't be ready by then"... the judge absolutely can say "tough luck". And if they don't show up when the court tells them to... the court can dismiss the case for failure to prosecute.

They have to wait for the prosecutor to file the case.

No they don't. If there's an indictment, the accused can go to court and claim the right to a speedy trial. If the prosecution needs more time, they have to convince the judge that it's warranted.

[Cuthbert Allgood]

87. I used the criminal trial analogy for the use of prosecutor/court.

Yeah. The prosecution doesn't set trial dates. But if they don't bring a case before the court, the court doesn't just randomly say "Hey, that one thing that we think should happen—trial starts tomorrow." And the judge only says "tough luck" if there is a case before the court. If the prosecution doesn't file, there is no case so nothing needs to be scheduled.

The accused can't claim a right to a speedy trial when there are no charges before the court. If they go to the judge and say "I want my trial to start now" the judge will say "there are no charges against you."

[FBaggins]

109. That goes back to my earlier point

Again... ignoring Tribe's (correct) earlier analysis that we can't take the metaphor too far.

The prosecution can hold off on having the grand jury issue indictments. But they can't indict... make the indictment public... and then refuse to prosecute until some other party does something that they want. In this case, the laughable parallel would be telling the court that they refuse to bring charges until the court negotiates the rules of the trial with them.

he court doesn't just randomly say "Hey, that one thing that we think should happen—trial starts tomorrow."

Oh... that's certainly true. If it takes a few days (or after the holiday break) to pick managers, it would be silly for the Senate to try to force things. They already said that they didn't intend to act until next year anyway and McConnell previously floated the idea of holding the trial through Feb/Mar.

If this is just PR leverage for negotiations, it isn't a big deal (though also not much leverage). It's only an issue if the House actually tries to keep the Senate from holding the trial.

The accused can't claim a right to a speedy trial when there are no charges before the court.

Nope. The right to a speedy trial begins when a grand jury indicts. The exception would be if the indictment is sealed. Unfortunately... not only is this indictment public, the court has to approve sealing indictments anyway.

[H2O Man]

139. I suspect that

what you are intending to say is that the prosecutor can file a sealed indictment, to be opened at the appropriate time.

[Cuthbert Allgood]

140. Yeah. I wasn't trying to go too far into the analogy

and was, instead, looking at something to convey that the court can't just do something until something is brought before them.

I'm now at the point where I have exams to grade and beating my head against a wall just isn't a good distraction anymore (that is, in no way at all, a response to your point—I agree with what you are saying).

[H2O Man]

168. Thanks.

We are, as you know, in uncharted territory. No one can accurately say they know for sure how this will play out, since it is a unique situation in our nation's history.

[FBaggins]

151. Prosecutors CAN get sealed indictments

The problem with that? The court has to do the sealing... not the prosecutor nor the grand jury.

And the Senate is the judge in this (strained) model.

It's also moot... because sealing an indictment is intended to keep it out of the public eye... and the impeachment was televised.

[H2O Man]

171. I understand and

appreciate what you are saying. And, of course, impeachment isn't a criminal trial, and doesn't follow the exact process of a civil trial. And while there have been two impeachments tried in the Senate, this current situation is unchartered territory. "Constitutional law" is, for better or for worse, what the USSC rules it is -- at least until a later USSC changes that interpretation.

We've never had a situation quite like this. Thus, while someone can give their opinion --and some give their bias (in the best sense of the word) -- that opinion remains an educated guess at this point. Though not always, in most cases it is possible to get a sincere attorney to argue both sides of any case, which is a good thing.

[triron]

155. So you know more than Prof. Tribe? I seriously doubt that.

[LiberalFighter]

176. Speaker Pelosi is fully aware what can and can't be done.

Apparently more than Senator Graham who was a house manager back in 1999. I'm sure with the Speaker's seniority and the help of other members they know what they are doing.

If as you say that the Senate does not need to receive the Articles of Impeachment from the House then why hasn't McConnell or Graham begun the trial?

As someone else has posted...

The House is not required to refer the Articles of Impeachment to the Senate at any particular time or even at all.

While in the Senate, the rules require the Senate to begin action immediately after receiving notice from the House that impeachment managers have been appointed. When such notice is received from the House, the rules require the Senate to "receive" the managers to present the articles and upon presentation, the Senate must begin the trial at 1:00 pm the day after the presentation.

[FBaggins]

180. I'm sure that she is

Note that she hasn't said that she's going to try to stop a Senate trial. All she's doing is trying to put the spotlight on the rules for that trial and gain a little leverage.

If as you say that the Senate does not need to receive the Articles of Impeachment from the House then why hasn't McConnell or Graham begun the trial?

Why would they? Right now they aren't worried about the outcome of the trial... they (like Pelosi) just want to use it for the best political outcome. If McConnell thinks that he can get away with calling Schiff and the whistleblower as witnesses and make hay out of whatever supposed colluding he thinks they had... then he'll do it. If he thinks that it would hurt Republicans... he won't. If he thinks that letting Trump call Biden and his son will score points, he'll do it... if it hurts, he won't.

In direct answer to your question - my assumption is that McConnell wants the trial to start in February. That was their hinted strategy a month or two ago and Pelosi responded by speeding things up. Right now I think he's perfectly happy to wait.

The House is not required to refer the Articles of Impeachment to the Senate at any particular time or even at all.

While in the Senate, the rules require the Senate to begin action immediately after receiving notice from the House

That's incorrect. The House rules do say that managers will be appointed... it just doesn't force the timing. And the Senate rules (which they can change) state what the Senate does WHEN they receive notice. That does not mean that they CAN'T do anything until then.

[Hermit-The-Prog]

207. Moscow Mitch could shit in the floor and walk off and leave it, too.

Doesn't mean it's very likely.

[Nitram]

214. Frodo, I think you don't get how the rules favor the House in this case.

The House can wait until the Senate's rules and willingness to hear witness testimony comply with accepted legal procedure. The Republican Cartel want to rush this through without due process of law. We can wait until they comply. Let them dangle in the wind for a while. See how they like it. Meanwhile, investigations continue and further evidence is bound to come out. Let's watch right wing heads explode in the meantime.

[3Hotdogs]

4. Sorry, Mitch.

We want to make sure the 2,000 page document is grammatically correct. That's gonna take a long time for all these professors of English to review it with their red pencils -- one professor at a time.

Then, we gotta give it to the lawyers to look over.

[FBaggins]

5. Cute

Unfortunately... they can’t be changed once they’re voted on.

[Scarsdale]

27. Can additional charges be added?

He is busy violating the emoluments clause as we speak. The tRump hotel in DC held a fundraiser, and room rates were up to $6,000, 13 times their going rate. I wonder who got the extra funds??

[FBaggins]

30. The House can vote new articles whenever they like. nt

[FailureToCommunicate]

37. Rep Nadler specifically entered "...including five days to make additions and corrections"

on the floor of the House yesterday.

[FBaggins]

40. I doubt that they care

The delay doesn't become an issue until it runs beyond when the Senate wants to hold the trial.

My read is that that's in February when our primaries start.

Long before this fantasy was put forward... it was clear that the trial wouldn't start until after the holidays anyway.

[kentuck]

7. She will pass the Articles to the Senate when they are prepared to receive them.

As of right now, they don't have a plan.

[JudyM]

174. She could highlight the ludicrousness of McConnell's claim of lack of thoroughness by holding it

back until the subpoenas are met.

[bucolic_frolic]

10. Senate cannot create their own Articles of Impeachment

They must use the genuine article from the House, and the House creates its own rules as to when those Articles are official and complete and transmitted. Requires Speaker signature. The House must use what power it has. Timing is their perogative.

[FBaggins]

17. So you're saying that he hasn't been impeached?

That would certainly work. But probably isn’t what they want

[bucolic_frolic]

21. I'm saying the process must be completed before it is official

Just like the Electoral College must be voted on by the House. 99% of paperwork is not good enough for law.

[FBaggins]

33. Where is "the process"?

That's the point... that Tribe only wants to look at when it's a House rule.

The Senate can't create a rule that says "only impeachments voted on a Tuesday are valid"... but they can create rules governing the trial that they control.


Just like the Electoral College must be voted on by the House.


That process is outlined in the Constitution. With this one... the only process is that the House has the sole power to create an impeachment... and the Senate has the sole power to try it. All of the "paperwork/process" beyond that is in the rules of the two chambers.

[StarfishSaver]

70. There are processes that must be followed to refer legislation passed by the House to the Senate

before the Senate can act upon it.

In cases of impeachment, there are specific rules and processes.

[FBaggins]

73. That's true

In cases of impeachment, there are specific rules and processes.

There are... but to Tribe's point, they are merely agreements between the two chambers and must fall if, as applied, they violate the Constitution.

I see no wiggle room in "The Senate shall have the sole Power to try all Impeachments." That's the point of post#17. I think the House could say "it isn't an impeachment until we say that it is" ... but they can't say "it IS an impeachment, but you can't try it until we're satisfied that you'll do so correctly"

[StarfishSaver]

75. The House isn't preventing the Senate from trying the impeachment. It's totally up to the Senate

when that happens. When they provide the information needed to appoint Managers, Pelosi will proceed. Very simple.

She's not saying "We're not giving it to you until we know you're doing the way we want." She's saying, "As soon as you tell me what your process will be, I will be able to appoint appropriate managers."

She has him in between a rock and a hard place.

[FBaggins]

84. I"m missing the rock and hard place

Seems like you have it correct. She has no power to keep the Senate from holding a trial... she can only make it look more partisan in the eyes of the final jury (the voters).

But again... I've missed where you've answered the question. When did this switch from Pelosi being in a rush and McConnell hoping to stretch things out to February or even March? I could see that switch in July or August... but right now I see a delay of a few weeks playing right into what McConnell wants.

Pelosi absolutely has the ability to try to negotiate the rules of the trial. I'm pretty sure that the impeachment managers in the Clinton impeachment were part of negotiations for witnesses (etc.)... she just doesn't have much leverage. Just like she controlled the process in the House and the Republicans (in both chambers) whined and moaned that it wasn't fair... the Senate majority controls the rules on their side and we are unlikely to think they're fair. This could have been predicted months ago.

What would change things is if the PR press convinces a couple of Republican senators to say that they're "concerned" that the rules might not be fair. But my guess is that this would play out just like the Kavanaugh hearings. Collins might say that she's concerned and will for McConnell to at least look like he's giving some ground... but not in any way that matters in the end.

[StarfishSaver]

110. She's forcing the Senate to lay out the process they plan to use before they're ready

They want to talk a lot of shish and keep things kind of flexible for awhile and threaten to do this and threaten to do that and spring some rule and process changes in down the line when everything is out of the House's hands. She cornered them and is forcing them to put the rules in place for all to see before she'll release the Articles to them. And she's using their own processes against them - they can't start until the managers deliver the articles and she's tying the appointment of the managers on their confirmation of their rules and processes.

It's a very smart move.

[FBaggins]

114. She's insisting on it... she isn't forcing it.

If/when they decide to adopt a rule that she isn't happy with... she can use this to draw attention to them (granting more weight to Schumer's arguments)... but neither of them has the power to force it - just try to swing public opinion.

It's a very smart move.

It absolutely is... for now. If it doesn't get her what she wants pretty quickly, it ceases to be useful. Because she can't say "ok... then you can't hold a trial"

[pnwmom]

179. They can't try the impeachment unless the House turns it over to them, and the House

has not yet finished with it.

There is no reason the House couldn't wait to see if they wanted to investigate more, and add more articles.

There is nothing that requires the House to finish its consideration of impeachment just because the Senate wants them to.

[FBaggins]

183. What do you mean by "not finished with it"

If the argument is that an impeachment isn't final until managers are named and the House sends it to the Senate (and the House takes that position)... then you would be correct. The Senate can't act... but it's because he hasn't been impeached yet.

I don't think that's a position that we want to take.

If, OTOH, he has been impeached (and I'm pretty sure that we all agree that he has) - then this isn't correct. We can't argue that paperwork trumps the constitution. "They can't try the impeachment unless the House turns it over to them" and "power to try ALL impeachments" are directly contradictory. One of them is in the Constitution and the other one is in the imaginings of people who fervently hope that there's SOME way to keep this from happening.

[pnwmom]

187. He has been impeached on those two articles, but there's no Constitutional limit on the number

of articles, and no Constitutional reason the House can't continue its work -- and investigate and vote on even more articles, before turning the whole matter over to the Senate for trial.

[FBaggins]

191. Nobody is arguing that the House can't keep investigating and/or impeach again

That doesn't bear on whether the Senate can hold a trial. Each impeachment can have its own trial.

[StarfishSaver]

68. In addition, the Senate has rules and processes for accepting the articles from the House

They can't just act on Articles that haven't been presented. And they can't be presented until the managers are appointed and take them to the Senate (they actually physically walk them over). And Pelosi just said she won't appoint managers until the Senate lays out its plan.

[FBaggins]

119. Seems entirely logical

Until you accept that Tribe's analysis applied both ways. Yep... the Senate has rules... but those rules:

a) can be changed... and
b) he's already said don't apply if they conflict with core constitutional prerogatives (like the House deciding how/when/if to impeach... but also like the Senate deciding how/when/if to run the trial).

There isn't anything outside of those rules that says that managers need to exist... or that Articles need to be presented. If he's going to argue that the House gets to make their own rules and doesn't need to follow the existing processes (and he's correct)... the Senate gets to do the same thing.

[StarfishSaver]

123. Of course the Senate can make its own rules

What rules do you think they would make that would get them around what Pelosi is doing right now?

[FBaggins]

128. They would have all kinds of options

They could, for instance, simply schedule a trial. Say "if you think that you have arguments in defense of the Articles you've passed... you are invited to make those arguments. If you choose not to show up... we will act accordingly. Including possibly ruling on the Articles as presented or by dismissing them for a failure to prosecute".

What could Pelosi possibly do (apart form shout from the rooftops to influence public opinion... which I think is the current plan). No court is going to take a case where the House says that they should have a say in Senate rules... and the only real appeal ends up before the Senate anyway.

See the exchange with Cuthbert above. In the semi-valid example that the House is both grand jury and prosecutor... prosecutors can't indefinitely fail to prosecute once an indictment exists. The court determines when the trial is held - and in this model the Senate is the court.

[pnwmom]

189. Sure, they can dismiss them. And Trump will never be able to say he was exonerated by the Senate,

as Clinton was able to do.

[FBaggins]

192. We could try to spin it that way... and no doubt some would...

... but dismissal is bigger than an acquittal. That's why Democrats moved for one in the Clinton trial.

[pnwmom]

194. No, dismissal is NOT bigger. It only takes 51 votes to get a dismissal, but 67 to get a conviction.

[FBaggins]

195. You're applying the wrong comparison.

It takes 51 votes for a dismissal... it only takes 34 votes for an acquittal.

A conviction would be a bigger deal than either of those.

[pnwmom]

198. Let's pretend that Pelosi had already sent the articles.

They could get it over with by moving to dismiss, and some have suggested that, because they'd only need 51 votes to dismiss.

But Trump and others have made it clear they want the full up and down vote for conviction, because that's the only way to say he's been exonerated.

Which brings me back to my first point. Dismissal does not equal exoneration. It is of less value to Trump than surviving an attempt to convict, like Clinton did. It is merely a refusal of the Senate to take up the charges, and the Senate has already promised to act in a partisan fashion.

[FBaggins]

199. Let's consider the reverse scenario

Why did Democrats move to dismiss in the Clinton trial if they didn't think that was preferable to an acquittal?

[pnwmom]

201. I have no idea. n/t

[FBaggins]

202. Good enough for me

As long as we agree that dismissal is a higher (voting) threshold, I don't have any energy around what we think Republicans think about which is better for Trump. I suspect that neither of us knows or cares.

Though I could be convinced that we could make hay with shouting "he was never acquitted!" and let them deal with whether voters understand the difference.

[TheRealNorth]

203. Because of the nature of the charges and situation at the time

Nobody wasn't saying that Clinton didn't lie about a BJ. The Democrats were saying that lying about a BJ was not what our founders were talking about when they talked about "high crimes and misdemeanors".

[FarPoint]

16. I am so glad Laurence Tribe is assisting the Team essentially...

[JudyM]

175. +1 if ever there was a time for all hands on deck, this is it. Now we just need strong PR quips to

take over the narrative!

I am sick of listening to NPR playing clips of the repukes’ faux outrage, so often without calling them out on their lies.

[FarPoint]

193. Absolutely....

We definitely need a message format to overcome the Trumpster's faux narratives and diversion shocker statements....Focus is on the Rule of Law Standards requires as well...

[Mr. Ected]

22. If the House stalls in naming its Impeachment Managers

There can be no impeachment trial in the Senate.

That's Nancy's play.

[Azathoth]

26. Yes, there can be a trial

And Republicans can simply vote to acquit based on no evidence being presented.

Delaying appointing the managers is a limited stall tactic.

[UpInArms]

32. I distinctly heard Nadler give everyone at least 5 days to

Make certain their remarks were correctly placed in the record.

[FBaggins]

35. Which is not an issue

The House was the one rushing to complete impeachment before Christmas... the Republicans in the Senate want it done before the general election season starts... but they would be happy to hold the trial in March. I suspect that they would be perfectly happy for the House to take a few weeks to tidy up their recordkeeping.

[UpInArms]

38. Without a clear and approved record, it cannot be transmitted

The senate cannot take up a Bill from the House until it passes through the appropriate channels

[FBaggins]

41. Repetition doesn't add clarity

Again... "sez who?"

What rule says that the Senate's power to hold a trial is predicated on someone else's paperwork?

What "channels" are you talking about and why would they have any more constitutional existence than the rule that Tribe is saying is unconstitutional? (And he's right about that)

[UpInArms]

44. Frodo?

Is that you?

[Azathoth]

42. The Bill is already done from a Constitutional standpoint

It's been voted on and its text is public and unchangeable.

Proofreading the record is nice, but has nothing to do with whether the Senate can hold a trial. They are trying the Articles, not remarks in the record by Rep. Somebody.

[StarfishSaver]

130. No, it's not

The Senate can't take up a measure until the House finalizes it and sends it to them.

For example, the House can pass legislation, but until they refer it to the Senate, the Senate can't take any action on it.

[Azathoth]

39. That's fine, but it has no effect on whether the House can block a Senate trial

Ensuring the record is correct, appointing managers, etc. are all limited delay tactics. They maybe put a little public pressure on Moscow Mitch.

Eventually, however, the Senate is going to move on this, regardless of what the House tries to do. Either they'll hold a short trial and acquit because no case was presented, or they'll change their rules to dismiss the case outright.

[UpInArms]

46. Here's a link for you

https://www.cop.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm

The United States Constitution provides that the House of Representatives "shall have the sole Power of Impeachment" (Article I, section 2) and that "the Senate shall have the sole Power to try all Impeachments…[but] no person shall be convicted without the Concurrence of two-thirds of the Members present" (Article I, section 3). The president, vice president, and all civil officers of the United States are subject to impeachment.

The concept of impeachment originated in England and was adopted by many of the American colonial governments and state constitutions. As adopted by the framers, this congressional power is a fundamental component of the constitutional system of “checks and balances.” Through the impeachment process, Congress charges and then tries an official of the federal government for “Treason, Bribery, or other high Crimes and Misdemeanors.” The definition of “high Crimes and Misdemeanors” was not specified in the Constitution and has long been subject to debate.

In impeachment proceedings, the House of Representatives charges an official of the federal government by approving, by majority vote, articles of impeachment. A committee of representatives, called “managers,” acts as prosecutors before the Senate. The Senate sits as a High Court of Impeachment in which senators consider evidence, hear witnesses, and vote to acquit or convict the impeached official. In the case of presidential impeachment trials, the chief justice of the United States presides. The Constitution requires a two-thirds vote of the Senate to convict, and the penalty for an impeached official upon conviction is removal from office. In some cases, the Senate has also disqualified such officials from holding public offices in the future. There is no appeal. Since 1789, about half of Senate impeachment trials have resulted in conviction and removal from office.

[FBaggins]

50. Notice where the link comes from?

Ignoring the fact that it's just an explanation of the current process (rather than the rules themselves) - it's the Senate that creates the rules for the trial. The post is really no different from whatever Tribe is replying to. Do the Senate rules say "immediately"? Doesn't matter because they can't be applied if the Constitution gives the House the power to impeach and the power to make their own rules. Do the Senate rules give the House the role of prosecution? Yep... but the Constitution gives the power to rule on impeachments to the Senate and the power to make their own rules. This Ouroboros doesn't get us anywhere.

He's saying (at the core) the same thing that I'm saying. All of the "rules" apart from the Constitution itself must give way if, in application, they contradict the Constitution.

Unfortunately for this argument... there is no wiggle room in that language. "The Senate shall have the sole Power to try all Impeachments." does not permit the House to rule on whether or not the Senate's rules provide justice and more than the Senate has the power to say that the House cannot vote to impeach unless the charges include a violation of law. "All" impeachments leaved open only an argument that impeachment isn't done yet (which IS within the House's authority)... else the Senate controls from here.

[UpInArms]

52. Hi Frodo!

Why are you vested in Moscow Mitch’s wishes?

[FBaggins]

63. Um... Hi?

Why are you vested in Moscow Mitch’s wishes?

Seriously? Your argument is that we should twist our constitutional interpretations to match our political desires? And thus if I don't agree with the strategy of the moment... I must be on the other side?

Have you no better argument?

[Drahthaardogs]

80. My argument is that your repeated use of "sez"

Really diminishes everything else you say. Like when a grown adult says "yummy for my tummy" or c alls a vegetable "veggies", I just find it hard to take whatever they say after that seriously.

[FBaggins]

122. That's ironic

It was intended as a way to point out the quality of the original claim.

People keep saying "the Senate can't act until the House lets them"... when no such rule exists. It's particularly ironic because the claim is that the rules that do exist don't hold weight and should be ignored... but a different rule should be inferred from the lack of an explicit rule...

... all while effectively claiming that "all" does not mean "all".

[Drahthaardogs]

132. Well, it was lost on me

You obviously know your law, but I found that response only brought up an image of a petulant 15 year old. I am a scientist, a toxicologist, so I often field ridiculous or misinformed claims. I have found a clear response with the facts effective. I have not found sarcasm particularly beneficial.

Its your argument, but if your intent was to use that response to show or mock the other's position - it failed, at least for me.

[onenote]

61. The Senate would first have to change its rules.

[FBaggins]

65. True

And there's no reason for them to do so prior to when they want the trial to commence.

But it should be recognized that those rules WILL be changed just as the House rules were.

[onenote]

133. What change was made to the House rules?

[FBaggins]

138. They didn't just copy/paste the existing rules from the Clinton impeachment

But that's not really the point. I'm talking about this fictional world where Pelosi decides not to send things over at all... not just talk about it as leverage for bargaining. That would involve changing a few "shall appoint"s to "may appoint" (just as an example). The existing rules wouldn't be offended by it taking a couple days to vote on managers... but they don't support an option to not appoint them at all.

To Tribe's point... there's nothing the Senate could do to force such an appointment. The rules can't be appealed to anyone by the House. No court would try to enforce House rules against the House (though they could undo external actions that violated them)... but similarly, there's nothing the House can do if the Senate starts a trial without them to say "Hey! That's not in the rules" and no court would hear that either.

[StarfishSaver]

129. And the beauty of it is she's making Mitch producing a plan a "condition precedent" to appointing

managers. She's putting any delay in her taking the next step all on him.

[Mr. Ected]

135. And the further beauty of it is, she probably has planned this from the beginning

But only revealed her intentions at the last moment, to prevent any malarky from Mitchco.

[StarfishSaver]

137. Yep. She didn't just think this up yesterday

I'm particularly amused by people who insist that Twitter pushed her to do anything - like those who say she didn't want to impeach but the base forced her to. They think that Pelosi doesn't know what they know but, thankfully, they're explaining it to her and now she gets it.

Pelosi has been gaming this out for months, if not years. And you can bet she has the next year completely mapped out, knowing exactly every move available to her in any instance moving forward.

[FBaggins]

152. I agree on the twitterverse comment... but you still haven't answered my primary question

from last night. The last I heard... Pelosi wanted this done before Christmas so that the Senate trial would be over before the primaries... while McConnell supposedly wanted to overlap the primaries. When did that change or why is that wrong? Why does the next six weeks or so not just play right into his hands?


Pelosi has been gaming this out for months, if not years.

Careful. The two Articles are almost entirely tied to things that happened a few months ago. If she's been gaming this out for years than you're admitting that she's doing the same thing that McConnell is doing.

Which... of course... they both are. But we shouldn't say it.

[UpInArms]

24. Gosh, it's not like there are no Bills on Moscow Mitch's desk ...

Maybe he could get to some of those, while he waits

[Roy Rolling]

36. Fu*k Mitch

Let the Senate take Pelosi to court if they don’t think she has a grasp of the law.

That’s what cuts both ways—let them drag it through the courts if Mitch wants to force Pelosi to act.

[onenote]

47. The Senate rules don't require the House to "immediately" present the articles of impeachment

This is what the rule says:

"Whensoever the Senate shall receive notice from the House of Representatives that managers are appointed on their part to conduct an impeachment against any person and are directed to carry articles of impeachment to the Senate, the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment, agreeably to such notice."


Tribe doesn't need to make a constitutional argument here. He just needed to read the rule.

[UpInArms]

56. +1

Thank you

[gab13by13]

62. Bravo - onenote, well said.

[Mr.Bill]

79. If the Senate could vote on this

Last edited Thu Dec 19, 2019, 06:18 PM - Edit history (2)

without Pelosi presenting the articles to them and without her appointing House members as managers, they would be doing it right now.

[honest.abe]

83. Exactly.

There is reason they are holding back. They know the House holds the best cards at the moment.

[uponit7771]

212. +1, or would have just made up articles & then voted on Trumps acquittal based on whatever notion

... of articles of impeachment the house thought of during some day at some time.

[NoMoreRepugs]

95. The passion here at DU that can be found reading thru

the comments in this thread is inspiring, also a bit humorous to me. The dissection and parsing of Tribe's comments make me wonder if there are some here who think they could crush a major league curveball.

[Cuthbert Allgood]

134. Absolutely a good point.

Reminds me of the video of the average guys trying to return a Venus Williams serve.

[LenaBaby61]

143. IF I understand correctly ....

There isn't a set time-limit as to WHEN the next phase of this Impeachment to move forward.

IF correct, Pelosi can slow-walk these 2 articles of Impeachment & add to them--MoscowMitch & Leningrad can't force her to speed up the trial in the Senate because big treasonous fatso wants his made-for-tv Circus-type trial, with his in the bag Senators to render him completely exonerated even though there won't really BE a Senate trial. Just a sham of a Senate trial.

I have the feeling MUCH MORE evidence WILL be coming out against fatso, and that Pelosi for sure knows this. So yes, IF I understand this whole thing correctly, I'm good with her pumping the brakes and not moving ahead so quickly with a SHORT and unfair Circus-type Senate trial just because big treasonous fatso demands that she does. Let's try to compromise and get a few witnesses that MoscowMitch/fatso DON'T want to testify in there TO testify, and while they're at it, put some actual RULES in there so the Circus-type trial that fatso wants isn't just handed over to him because he knows that he's THE putin-preferred, INSTALLED, illegitimate, raving, lunatic criminal KING that his puppet-master putin helped get in there because HE (putin) wants treasonous fat ass to continue destroying our country it's democracy and sovereignty.

[Kablooie]

153. Now that impeachment has Officially started, can the senate still change their rules?

If McConnell really feels he’s in a bind can he get the senate to vote for new impeachment rules that will allow him To start The trial without the house?
Or does the start of impeachment lock down the rules as they are?

[FBaggins]

157. Yes

In fact... this strategy (or the part of it that Pelosi has actually employed) is intended to give the House a voice in negotiating those rules.

[uponit7771]

213. +1, and Moscow Mitch will change rules quick fast and not give a damn what folk think about him or

... his Russian money.

[warmfeet]

206. Fucking ridiculous. This is bullshit.

The Democrats are arguing about following rules.

The repiggies are laughing, all the way to the bank.

Self defense is, well, just fucking common sense.

We had better learn, very quickly, that self preservation is, well, preservation.

We let these fuckers stomp us into the ground.

I hope we learn how to fight back, effectively, and very soon.

This is not a trivial matter. We better fight now or there will be no fight - there will be no future.