The Senate decides if he's guilty, not whether it's constitutional to try Trump

[Tom Rinaldo]

That's a call for the Supreme Court to make, not Senators like Rubio. There is legal precedent for a Senate trial of an impeached government official who no longer is in office. As a member of the legislative branch of government, Rubio can decide yay or nay on Trump's conviction base on the merits of the case brought against Trump. Rubio doesn't get to pretend he's a Supreme Court Justice and vote to acquit because he doesn't believe the Senate trial is constitutional.

The House impeached Trump and referred the matter to the Senate for a trial on the article of impeachment. The Senate is obligated to review the evidence and then vote accordingly. Rubio can ask the Supreme Court to void any Senate verdict on Trump after one is reached, that's their job to look at. Rubio's job is to act as an impartial juror in the trial that will soon begin. He needs to be called out on this.

[tritsofme]

1. I disagree, it is for the Senate to determine its own jurisdiction, not the courts.

The Senate could certainly decide they lack jurisdiction to hear the case and vote to dismiss, but that is not a likely outcome given our new Democratic majority.

[Walleye]

2. Congress shall have the sole power of impeachment, correct?

[tritsofme]

3. The Senate has sole power to try all impeachments.

Which includes determining their jurisdiction. The Senate’s decision is final, there is no appeal to the Supreme Court as OP suggests.

[Walleye]

5. Right. Thanks, that's what I thought. I'm sure Trump will want to take it to the Supreme Court

He still thinks they owe him something

[StarfishSaver]

11. There are instances in which, if he took it to the Supreme Court, the Court would have

jurisdiction to rule, notwithstanding the fact that it's an impeachment matter.

The Court does have full power to decide if an impeachment is constitutionally permissible. The Senate has no power to determine its own jurisdiction, only how it will exercise its prerogatives within the jurisdiction set out in the Constitution as, if warranted, defined by the courts.

Think of it this way: Impeachments are not reviewable by the courts. But if the Senate tries to conduct an impeachment outside of the bounds the Constitution gave it, the action they took is not an impeachment, so the "non-reviewability" doctrine doesn't apply to it.

[StarfishSaver]

4. No, that's not correct. The Senate has no say over what its jurisdiction is.

When Congress' jurisdiction is set by the Constitution, it's up to the courts to decide the scope of the jurisdiction.

What Congress does WITHIN that jurisdiction is completely up to them. But they cannot legally operate outside of the constitutionally-drawn lines and it is solely up to the Supreme Court to determine where those lines are.

For example, Congress can impeach and remove a president for any reason it chooses - it is completely up to them to determine what high crimes and misdemeanors are, whether the president committed them and whether or not they should be removed from office

But Congress can't decide that because it has the power of impeachment, it can impeach anyone they want, regardless whether that power is given to them by the Constitution. So, Congress can't just unilaterally decide they have the jurisdiction to impeach a governor and remove them from office. And if they do decide they have that right, a Court can, without question, step in and tell them no.

I've described it like a coloring book. Congress can color to their heart's content using whatever crayons they want. But they can't just scribble all over the pages. They have to stay within the lines. And where those lines are is up to the courts, based on their interpretation of the Constitution.

[Walleye]

6. If the impeachment has already happened. Doesn't the Senate have to hold a trial?

[StarfishSaver]

8. Trump will surely argue that, under the Constitution, a former president cannot be impeached

and/or cannot be tried. The argument is that Congress' power of impeachment can be used only on sitting presidents, not former ones, and that once Trump left office, the Senate no longer has jurisdiction over him.

I think that argument will fail, but it is an issue the Court has the power to decide, notwithstanding the fact that impeachments aren't appealable.

I read the Constitution to permit the House to only impeach a sitting president; it cannot impeach a former president because they don't have jurisdiction on private citizens, even those who once held public office. But once the impeachment process has been started and the sitting president is impeached, Congress has jurisdiction over the president and retains that jurisdiction even if he leaves office. So, the fact that Trump was impeached while in office set everything in motion and Congress continues its jurisdiction over him and can conduct the trial and exact the only penalty still available - disqualification.

[Walleye]

9. Yes that's the way I read it too. Otherwise they could run out the clock after being impeached

[tritsofme]

7. I meant jurisdiction in the context being discussed today, whether former officials can be tried.

The Senate floor, not the courts, is the proper venue to resolve that question. The former president or Rubio could not appeal a guilty verdict to the Supreme Court as the OP suggests, it would be dismissed as a non-justiciable political question.

The Senate attempting to remove a governor would be flatly invalid. How would they even end up in court? The governor would have no reason to comply or respond to the Senate’s action.

[StarfishSaver]

10. If Rubio is arguing that the Senate can't try Trump because he is no longer president, that is not a

political question but a question of Constitutional interpretation that can only be resolved by the Court.

The Senate attempting to impeach, convict and remove a governor is no different than attempting to remove a former president if the Constitution does not permit Congress to convict a former president. Both involve whether the Senate has jurisdiction over a particular class of person, and is based upon the scope of power the Constitution gives the Senate.

There is no question that the Senate has jurisdiction over a sitting president. But the question of whether it has jurisdiction over a former president is a question of the scope of power that the Constitution confers on the Senate. And the Senate can't determine the scope of its own power. That's for the courts to do. Just as the Senate cannot try a governor because the Constitution doesn't permit it, if the court determines that the Constitution doesn't permit the Senate to try a former president, they don't have the power to do so.

The fact that it would be difficult to enforce the judgment is not what determines whether the Senate's action is constitutional

If Trump were disqualified from holding federal office, he would have no reason to comply and it would be possible for him to ignore the Senate and serve anyway. If, for example, a crazy MAGA president is elected and appoints Trump to a federal position that doesn't require Senate confirmation, there wouldn't be much they could do about it. But that wouldn't be the point.

[tritsofme]

12. Wouldn't a ruling on the merits be incredibly unlikely?

Leaving the Court to dispose of the case on the basis of non-justiciability, as in Nixon v United States? It is certainly, if nothing is else...interesting...to see this all play out in real time.

[StarfishSaver]

13. This wouldn't be a ruling on its merits

The merits would be irrelevant. This would be purely a question of law.

I think the Court would be likely to stay out of it UNLESS Trump is convicted and disqualified from office and at some point he tries to take office and it is denied to him on the grounds of the disqualification. At that point, he would probably sue for an injunction, arguing that the disqualification was unconstitutional because the Senate lacked jurisdiction.

This could also come up as an issue if any of the Republican senators move to dismiss the impeachment on the grounds that moving forward against a former president is unconstitutional. The Chief Justice, as presiding judge in the trial, would have to rule on whether the Senate had the constitutional right to try the case.

[tritsofme]

14. I guess I am trying to understand why the court would find any differently than it did in Nixon?

That impeachment is a political question and non-justiciable?

Interestingly, it’s not clear that Roberts will preside over this trial, media reports suggest he is not interested and does not feel constitutionally obligated to preside over the trial of a former president.

Regardless, based on our experience last year, it’s doubtful that he would issue his own ruling, and instead put the issue to a Senate vote.

But that scenario goes back to my original point, that the Senate will have the opportunity to determine their own jurisdiction through such a motion on the floor.

[StarfishSaver]

15. I know it's confusing - it's complicated and involves an understanding of constitutional analysis

that law students and lawyers spend years studying and practicing. But, in short, the Nixon case involved an issue of HOW the Senate tried an impeachment case it had unquestionably full right to conduct under the Constitution. The issue we're discussing here is WHETHER the Senate was given the power by the Constitution to try this case.

How the Senate does its business is up to them. But whether they have a right to conduct certain kinds of business is not.

There was no question that the House had the right to impeach Judge Nixon and that the Senate had the right to hold an impeachment trial of those charges. The manner in which they did that was solely within their power and discretion and the court was not going to get involved in how they did it, even if Nixon was claiming the Senate rule conflicted with the Constitution.

Here, the question is whether the Senate even has the power to try the case at all. It may seem like a distinction without a difference, but in legal and constitutional analysis, it's night and day. It's one thing to claim "The Senate has a right to do this but they're doing it all wrong" and another to claim, "The don't have a right to do it."

If the Senate tries Trump and he doesn't like the rules they use, for example, to decide what evidence will be admitted, too bad. The Court will tell him to go pound sand. But if the House and Senate next week decided to impeach, convict, and disqualify Barack Obama from holding any office in the future, the Court wouldn't just shrug and say, "Don't look at us. That's up to you to work it out." They would, if asked, step in and rule on whether the Constitution gave Congress the right to impeach a former president because that's a jurisdictional question that goes beyond a question of how the Senate is conducting it's permissible process, to the very validity of the entire impeachment. If Congress doesn't have the constitutional power to impeach a former president, it's not a valid impeachment and the entire process fails.

Now, with that said, I do think it's possible that, if it gets to that point, and the Senate
convicts and Trump appeals, the Court could refuse to take the case and let the impeachment and penalty stand, rather than deciding the case, which would have the same effect and send the same message - that they are done with the Senate convicting a former president.

Does that help clear it up?