If Senate Majority Leader Mitch McConnell follows through on
his desire to hold an abbreviated impeachment
trial without witnesses — as many in his party would prefer — he will be
testing the limits of the impeachment trial clause of the Constitution.
Minority Leader Charles E. Schumer has declared that a trial without witnesses
(or perhaps even any documents) would amount to “a coverup.”
Worries about a rubber-stamp trial are one reason House Speaker Nancy Pelosi
has delayed submitting the articles
of impeachment.
If such a sham trial comes to pass, is there any remedy? In
fact, there is a stronger case than many think that the Supreme Court has the
power to review impeachment trials, to ensure that Senate procedures meet a
basic level of fairness.
The only Supreme Court decision addressing
the Senate impeachment trial clause is Nixon v. United States (1993)
— which has nothing to do with Richard Nixon. When Walter L. Nixon, a federal
judge in Mississippi, was impeached in 1989 and removed from office, he sued
the United States, the secretary of state and the Administrative Office of the
U.S. Courts, arguing that the Senate had not conducted a proper “trial” as
required by the Constitution.
The court, with Chief Justice William Rehnquist writing for
the majority, ruled against him. It concluded that how the Senate conducted
impeachment trials was essentially a political question, because the
Constitution gives that body the “sole power” to try impeached officials. That
meant the dispute was, in the legal jargon, “nonjusticiable.” But other
justices — namely Byron White, Harry Blackmun and David Souter — argued that,
while Nixon deserved to lose, it was possible that one day the Senate would
conduct such an unfair impeachment trial that the courts would be obliged to
hear a case if an aggrieved party sought a judicial remedy. That’s precisely
the situation we
may face today.
In the events that
led to his impeachment, Nixon was convicted of crimes (two counts of making
false statements to a grand jury, related to an attempt to interfere in the
investigation of a friend’s son) and sentenced to prison. But he refused to
resign and continued to collect his judicial salary behind bars. The House
therefore impeached Nixon and sent articles to the Senate to conduct a trial.
Under rules established
by the Senate to handle impeachments, Nixon’s case was referred to a committee
of senators to “receive evidence and take testimony.” After four days of
hearings and 10 witnesses, the committee presented the full Senate with a
transcript of its proceedings and a report. The House managers and Nixon
submitted briefs to the full Senate; after oral arguments from the Senate
floor, a personal appeal from Nixon and questions from several senators, the
full Senate voted to remove him from office. He appealed, claiming that the
Senate had not really “tried” him: Delegating so much work to a small committee
was a shirking of its duty, he argued, and not what the founders had intended.
The Supreme Court’s vote against Nixon was 9 to 0. But White and Souter
filed concurring
opinions (Blackmun joined White’s) that contemporary courts might draw
on, should the Senate vote, after a trial that’s clearly perfunctory, to keep
Trump in office.
As the court noted in Nixon, the Constitution lays out
several indispensable elements of an impeachment trial: The Senate “shall be on
Oath or Affirmation”; if it’s the president who’s on trial, “the Chief Justice
shall preside”; and conviction requires a two-thirds majority of the members
present. Beyond this, the terms of how the Senate tries an impeachment are left
to its discretion.
But there are surely limits, White, Blackmun and Souter
argued. What if the trial were manifestly bogus? The issue had come up in the
oral argument for the case. White asked the solicitor
general (Kenneth Starr, as it happens) if, after the House sent over articles
of impeachment, the Senate could, “without any procedure whatsoever,”
unanimously find the accused guilty on the grounds that he was “a bad guy.” The
government replied that, yes, the Senate indeed had that latitude.
That answer troubled several justices. While conceding that
it was “extremely unlikely that the Senate would abuse its discretion and
insist on a procedure that could not be deemed a trial by reasonable judges,”
White wrote, the scenario was hardly unimaginable — and would provide grounds
for judicial review. “Were the Senate, for example, to adopt the practice of
automatically entering a judgment of conviction whenever articles of
impeachment were delivered from the House it is quite clear that the Senate
will have failed to ‘try’ impeachments,” White wrote
If the Senate were to convict “upon a coin-toss,” Justice
Souter added, “or upon a summary determination that an officer of the United
States was simply ‘a bad guy,’ judicial interference might well be
appropriate.”
“In such circumstances,” he wrote, “the Senate’s action
might be so far beyond the scope of its constitutional authority, and the
consequent impact on the Republic so great, as to merit a judicial response
despite the prudential concerns that would ordinarily counsel silence.”
McConnell has said he does not intend to be impartial —
and in fact will work, lockstep, with the White House during
the trial. That would violate his oath to “do impartial justice according to
the Constitution and laws.” If he dispenses with witnesses and speedily steers
the outcome to the one desired by the White House, that would reduce the Senate
proceeding to the kind of “summary determination” that the three justices
warned about. Collectively, such actions could be seen by reasonable judges as
“seriously threatening the integrity of the results” — the standard Souter
suggested should trigger judicial review.
Since the Constitution grants the chief justice the
privilege of presiding over the trial, he ought to have — and in my view does
have, under proper constitutional interpretation — considerable power to steer
the Senate toward reasonable standards for weighing evidence and rendering
judgments. He cannot and should not be a potted plant. The current Senate
rules, however, reduce the chief justice’s role to one of subservience and
ceremony; even his rulings on admissibility of evidence can be overridden by
the Senate. That cannot possibly be what the founders intended.
Yes, the founders provided that the House would have “sole
power” over impeachments and the Senate “sole power” over trials of
impeachment. But the Constitution also grants “all legislative powers” to the
House and Senate, and still the Supreme Court exercises routine judicial review
over laws. If McConnell and his Republican colleagues insist on setting rules
that turn the trial into a farce, then the matter would be ripe for judicial
review, as outlined by the various justices in Nixon v. United States. The
House — through the speaker or the impeachment managers — could take the matter
to court.
To read more CLICK HERE
No comments:
Post a Comment