The US House of Representatives approved two articles of impeachment against President Donald Trump last week, but the road to a trial in the Senate and its eventual shape is still hazy. To gain more insight, CNN Opinion has been asking two prominent Washington legal experts to bat the issues back and forth in a series of email exchanges.
Michael Zeldin served as deputy independent counsel and later independent counsel in the investigation into allegations that the administration of George H. W. Bush violated the privacy rights of candidate Bill Clinton in the 1992 presidential campaign. Robert Ray served as the independent counsel from 1999 to 2002, during which he led the investigation into the Whitewater controversy.
We asked Zeldin and Ray: The House voted to impeach President Donald Trump, but Speaker Nancy Pelosi isn't sending the articles of impeachment to the Senate just yet. What are the implications of her stance and what should happen if and when the Senate gets the articles?
Michael Zeldin: Article I, Section 2, Clause 5 of the US Constitution provides: The House of Representatives ... shall have the sole Power of Impeachment.
In the ordinary course, after the House passes articles of impeachment, as it did this past week against President Trump, by a separate resolution it appoints a committee of Congress members to serve as managers (in essence, prosecutors on behalf of the House) in the Senate trial. Once the managers are appointed, the House formally informs the Senate that it has adopted articles of impeachment and authorizes the managers to conduct the trial in the Senate. After the Senate receives the House resolution, the Senate tells the House when the managers can present the articles of impeachment to the Senate and commence the trial.
In the case of the Trump impeachment, Speaker Nancy Pelosi has determined that until such time as the rules of the Senate trial are set, she will not authorize the appointment of House managers. This makes sense to me for two principal reasons: 1. Understanding the rules the Senate will follow allows her to designate the managers best suited to prosecute the case. (It would be legal malpractice to walk into a courtroom without knowing the court's rules). 2. Speaker Pelosi (and Senate Minority Leader Charles Schumer) is correct to insist that a decision to allow for witness testimony is a prerequisite to a full and fair trial. As then-Congressman Lindsey Graham implored in 1998 in his role as a Clinton impeachment manager: "...we need witnesses, ladies and gentlemen, to clarify who said what, who's being honest, who's not, and what really did happen in this sordid tale. . .."
Robert Ray: I hate to sound too practical about this, but the trial of an impeachment by the Senate is all about counting votes. This impeachment effort is an entirely partisan effort (as evidenced by the House vote on the two articles) that will not even garner a majority of the Senate, much less the vote of two-thirds of that body necessary for removal of the President from office.
Consequently, it is entirely proper for a Senate majority to say in answer to this partisan House endeavor that no trial is warranted unless and until there is bipartisan support for impeachment. Otherwise, as Sen. Mitch McConnell has noted already, this President or any President is subject to impeachment at the whim of an "intemperate" (Hamilton's word) majority of the House.
Frankly, I think the Senate needs to send the House a strong message that -- absent bipartisan consensus -- there will be no trial, no witnesses and no further delay of the people's business. That can be accomplished at the earliest available opportunity by granting a proper motion by the President through his counsel to dismiss the impeachment articles in the Senate. That can be accomplished by a simple vote of the Republican majority. I believe it will pass in January.
The Constitution says only that the Senate has the "sole power to try all impeachments." (Art. I, sec. 3., cl. 6). That doesn't mean that it has to exercise that power. And there's nothing in the Constitution that says otherwise.
Zeldin: Robert is correct that Article I, Section 3, Clause 6 of the Constitution provides: "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present."
He is also correct that, in certain measure, we are writing on a blank slate as there is precious little precedent that informs our opinions. That said, I believe, by implication and past precedent, a full and fair trial in the Senate is what was expected by the Framers of the Constitution and is what should occur in this case.
The words of the Constitution speak in terms of a trial ("try all impeachments") and conviction ("no person shall be convicted..."). The webpage of the US Senate, in discussing its role during impeachments, states: "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."
Finally, the Senate impeachment rules (which essentially have been in place since the impeachment of President Andrew Johnson) specifically authorize compelling witness attendance and enforcing obedience with its orders.
It is impossible for me to interpret the spirit of the Constitution consistent with Robert's suggestion that the Senate send a strong message to the House that there will be no trial, no witnesses, no further delay.
It is my view that the Senate cannot honestly fulfill its constitutional duty to reach a verdict without holding a trial with witnesses. (Indeed, both previous presidential impeachment trials have had witnesses.) To do otherwise would be to facilitate the obstruction that forms the basis for the second article of impeachment — Obstruction of Congress.
Ray: Although I would concede that the 5th and 6th Amendments to the U.S. Constitution are not directly applicable to the trial of impeachments (since impeachment proceedings are not criminal in nature), the general principles they outline are instructive here. First, consistent with the 6th Amendment, only the accused -- in this case, the President -- is entitled to a trial by jury (here, by the Senators). Thus, any argument that the House impeachment managers, Democrats, or the people generally are entitled to a trial in the Senate would not appear to be so. And, in making a motion to dismiss -- if the President or his legal team choose to pursue that course -- it is in effect, if granted, a waiver of his right to a trial. The point is that it's the President's right as the accused, not anyone else's.
It is true enough that both sides before the Senate at an impeachment trial are afforded and should expect due process, or fundamental fairness, consistent with the 5th Amendment. But that's not the same thing as saying that the prosecution of this matter by House managers requires that there be witnesses at such a trial. Again, that's a right consistent with the 6th Amendment (i.e., to confront and cross-examine witnesses against him and to subpoena witnesses in his own defense) that the accused enjoys -- one that is waivable by him and not one that is afforded, as a matter of right under the Constitution, to House impeachment managers. Of course, if a majority of the Senate votes to subpoena witnesses for the benefit of either side (or both), that's entirely permissible. It's just not constitutionally required.
Zeldin: What is unique about an impeachment trial in the Senate is that the Senators sit, in effect, not just as jurors but as the court itself. The Senators make the rules and then listen to the evidence according to the rules they establish for the case. While the Chief Justice presides over impeachment trials of the President, it is also true that the Supreme Court held in the impeachment trial of Judge Walter Nixon that the Senate's power to try impeachments included the non-reviewable final discretion to determine how to conduct its trials.
Given that the Senate is both judge and jury, and its actions are non-reviewable by a court, it is incumbent upon the Senate to ensure that the process is credible. Anything less would undermine the national closure that a presidential impeachment trial is designed to achieve.
Robert's notion that a timely filed motion to dismiss (if agreed to by 51 Senators even along the partisan lines Robert -- and I -- dislike) would be constitutionally permissible may be correct. But I believe that it misses the broader purpose that the framers had in mind when establishing the impeachment structure.
"America's Founders provided for removing public officials... when their misconduct threatens constitutional government, betrays the public trust, or otherwise renders them unfit to continue in office," as Thomas Jipping and Hans von Spakovsky write in The Heritage Foundation publication, "The Impeachment Process: The Constitution and Historical Practice."
An impeachment, therefore, must be seen as a solemn undertaking that requires a deliberative process not accomplished by Robert's suggestion that the Senate move to dismiss the charges at the outset. Perhaps Lindsey Graham articulated it best in his 1998 role as a Clinton impeachment manager when he said: "All I ask of the Senate is to take your oath, listen to the evidence in some way that will withstand historical scrutiny, that you'll have a record that will justify any decision you make... [and] that whatever decision was made be based on evidence and the law."
Nothing less is required here.
Ray: I take your point, Michael, in citing Lindsey Graham's comments regarding the Clinton impeachment, that ultimately the result in the Senate will withstand historical scrutiny only if it is deemed to have been in the best interests of the country. There's simply a disagreement between us (and in the country at large) about what and how that result is to be achieved.
My own sense is that lowering the bar for impeachment in the House without bipartisan support and with articles that do not allege crimes warrant a partisan rejoinder in the Senate to put a stop to this endeavor at the earliest available opportunity. I remain convinced that the best credible course in dealing with and evaluating the President's conduct is still the impending 2020 election.