Senate faces difficult burden with issue of the second impeachment

Senate faces difficult burden with issue of the second impeachment
© Greg Nash

The second impeachment trial of Donald TrumpDonald TrumpPence: Supreme Court has chance to right 'historic wrong' with abortion ruling Prosecutor says during trial that actor Jussie Smollett staged 'fake hate crime' Overnight Defense & National Security — US, Iran return to negotiating table MORE appeared to effectively end before it even began Tuesday. In a threshold procedural vote on the constitutionality of trying a former president, 45 senators voted in favor of a motion to challenge the trial, and that means almost half of the Senate believes Trump might not be subject to a trial, let alone a conviction, as a former president. It also means House impeachment managers may not be able to secure the Senate votes to convict.

For those members who believe the trial is invalid, the votes would not change based on the merits. In the 1999 impeachment of Bill Clinton, some Senate Democrats argued against a trial due to a lack of votes to convict him. They argued for simple votes without a trial on prudential grounds. But this time the larger prudential issue looms over the upper chamber. With acquittal now likely, members of the Senate may focus on the costs of a “snap impeachment” for the institution.

Before they took the oath for the impeachment trial and voted on the dismissal motion raised by Rand Paul, I met with all Senate Republicans to discuss the historical and constitutional issues. I did the same before the first impeachment trial of Trump. It was an intense and, in many ways, an inspiring discussion. Senators honestly struggled on whether they could vote to “remove” a president who is no longer in office.

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The vote on the dismissal motion is not likely to end the debate over the constitutionality of a trial, which has strong arguments on both sides. There are only two cases where a retroactive removal was attempted. In 1789, resigned Senator William Blount refused to appear for what he saw as an unconstitutional trial. The Senate agreed and dismissed the case. A closer parallel involved former Secretary of War William Belknap in 1876. The same threshold vote was taken with the same result as almost half of the Senate voted to dismiss the trial as unconstitutional. The motion failed narrowly and the Senate had the trial then acquitted him.

But now the Senate is faced with the second prudential issue. There are cases which, even if legally brought, contain errors so significant they must be dismissed as unsound on prudential rather than constitutional grounds. This case raises such a fundamental error. The problem is not what was sent to the Senate but what was not. There was no record. For the first time in history, the House sent an article of impeachment to the Senate without any hearing, any testimony, or any response from the president. The House simply sent a poorly crafted article.

The issue is whether the Senate wants to legitimize this radical departure from the traditions of both chambers. Some of us called for the House to hold at least a day of hearings to allow the chance for the president to respond. Yet the House refused to call any witness or hold any hearing. House leaders said there was not a day to spare then did nothing. They waited almost two weeks to submit the article to the Senate.

It is a familiar pattern. When I testified in the first impeachment hearing on Trump, I objected that the House was moving in the shortest time and on the thinnest record with any impeachment of a president. I testified that Trump could be impeached on two articles, the two ultimately adopted by the House, but cautioned that such a rush was unnecessary and would fail in the Senate. The House Judiciary Committee did not call a sole witness, which led the Senate to decline to call any witness. House Speaker Nancy Pelosi and Adam Schiff back then also insisted there was no time to waste then waited weeks to submit the articles to the Senate.

After the House destroyed its own rationale for its rushed impeachment, I wrote about a dangerous prudential concern for the Senate in accepting such an insufficient record for the trial. While the Constitution does not specify a record, this was a shocking departure from tradition. I suggested a Senate compromise to dismiss the article of obstruction of Congress to show the House it should never repeat such an abbreviated process but to give the House the trial witnesses it should have called. Otherwise, the House would use that case as a baseline for future impeachments. The House has now done that and then went another step further.

Instead of submitting an insufficient record, it submitted no record at all in a second impeachment of the same president. For Senate institutionalists, that comes across as a virtual taunt. Even one hearing in the House could have supplied some evidence on the intent of Trump for the riots at the Capitol. Witnesses could have addressed whether the National Guard was offered to Congress in advance or whether Trump obstructed any such assistance. Answers could have been demanded from the White House. Acting Defense Secretary Christopher Miller gave interviews on Oval Office discussions about that issue but was not called to testify.

I have no problem with removing a president on his last day in office, as impeachment plays an important role in condemning illegal actions. But there must be some record and not just a conclusory statement in a snap impeachment. Like the threshold constitutional issue, the prudential issue is a matter for Congress and not the accused. It is not about what Trump did but what the House failed to do in sending a bare article to the Senate, which was effectively asked to carry the burden for both chambers. With an acquittal now likely, those significant prudential concerns will become magnified for Senate institutionalists down the road.

Jonathan Turley is the Shapiro Professor of Public Interest Law with George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as an expert for the impeachment hearings of Bill Clinton and Donald Trump. Follow him with Twitter @JonathanTurley.