Thread by @MattGlassman312

There's confusion about whether a House impeachment compels a Senate trial. This is in part because it's actually confusing. But it's also b/c people are actually addressing a variety of different questions/issues. In this thread, I'm going to mostly clarify the *questions.* 1/

I'll also provide some tentative answer, though it's important to remember that are some things here that are unprecedented---for starters, we've never had an impeachment where control of the House/Senate were with different parties---and I'm not a final authority on any of it.

Question #1: Does the *Constitution* require the Senate to act---in any way---on a House impeachment?

Question #2: Do the Senate rules require the Senate to act---in any way---on a House impeachment?

Question #3: Can the Senate ignore its own rules regarding impeachment?

Question #4: Can Majority Leader McConnell unilaterally ignore the Senate rules regarding impeachment?

Question #5: Can the Senate change its rules regarding impeachment?

Question #6: Can Majority Leader McConnell unilaterally change the Senate rules regarding impeachment?

Question #7: How would you sum up the bottom line about the Senate and impeachment---in plain English?

Ok. Those are the questions. Let's take them one at a time and think about the answers.

Question #1: Does the *Constitution* require the Senate to act---in any way---on a House impeachment?

This is almost certainly a "no." The constitutional provision in Article I, section 2 appears below. It provides no compulsion, and likely prevents ("sole power") any.

Just as the Senate can passively not act on a nomination---see Merrick Garland---they can passively not act, under the constitution, on an impeachment.

Question #2: Do the Senate rules require the Senate to act---in any way---on a House impeachment?

This is not 100% clear, but it seems 99% clear that the answer is yes. Current Senate rules makes substantial provisions for impeachment.

govinfo.gov/content/pkg/GP…

These rules strongly suggest that the Senate does not have any discretion in starting a trial upon the appearance of an impeachment article from the House. The use of the word "shall" is pretty clear.

Question #3: Can the Senate ignore its own rules regarding impeachment?

Yes! The Senate is always free, by *unanimous consent* to ignore it's own rules. This works two ways. First, if the Senate formally agrees to ignore it's own rules by adopting a unanimous consent request.

Second, it can also happen passively. If the Senate (or House) is doing something in violation of its rules, those rules are not self-enforcing---there's no neutral referee. But any member may raise a point of order contesting the ignoring of the rules.

Once the (legitimate) point of order was raised, the Senate could choose to overrule the point of order---the Senate is in control of its own precedents--and thus shut down the ability to get to the impeachment trial. But this takes a vote.

And I think this is where a lot of the confusion is coming in. The Senate can *always* change its rules, set new precedents, and decide what it will and will not consider under those rules. But it *can't* do any of that without at least a majority winning a vote.

So, no, the Senate rules do not guarantee that a trial or a final vote on conviction/not, but that's because the Senate is *always* free to change it's rules. But it *cannot* change its rules/precedents without at least a majority winning a vote, and any member can force a vote.

Compare this to Garland. Senate rules do not provide for the automatic consideration of noms. Therefore, those looking to avoid a vote on Garland could simply do nothing and, under the rules, nothing happens. (See @jiwallner however on how Garland could have been pressed).

@jiwallner So no, the Senate (almost certainly) not avoid *dealing* with articles of impeachment under their current rules, but a majority could likely easily dispose of the articles with a single recorded vote, by reinterpreting precedent (similar to other "nuclear option" moves).

That, however, is very different than being able to passively bury something. It would require the Senate to actually vote, and actually get a majority, publicly. (This could also happen a variety of ways procedurally; lots of one-vote strategies to dispose of the business).

Question #4: Can Majority Leader McConnell unilaterally ignore the Senate rules regarding impeachment?

The answer here is an emphatic NO. Only the Senate as a body can make such decisions.

But again, this gets a bit confusing.

People often say "McConnell is going to bring this up" or "McConnell will not allow that." But that's shorthand for "McConnell has the acquiescence of a majority of the Senate to bring this up or not allow that." It's the majority that gives McConnell agenda control.

If a majority *doesn't* want to do what McConnell wants to do, they can easily thwart him. On anything. When McConnell makes a motion to proceed to bill X, a majority can immediately, without debate, table it and the move to proceed to bill Y.

This is important in context of an impeachment trial. If a majority of Senate *wants* to have a trial, there is *nothing* McConnell can do to ultimately stop them. Even if Romney/Murkowski/Collins/Alexander don't want to convict, if they want a dignified trial, we will get one.

In the course of normal Senate business, it has become custom for the majority party (and minority party) to defer to the Majority Leader to set the agenda. But if and when the ML tries to cross a determined majority on the agenda, he/she will lose.

Question #5: Can the Senate change its rules regarding impeachment?

An empathic YES. In fact, they will almost certainly have to set specific rules for any trial that does take place this or next year. And the Senate is *always* free to adjust its rules as it sees fit.

But again, when I say "the Senate," I mean THE SENATE. Changing the rules and/or reinterpreting the precedents requires THE SENATE to do so. That means a majority, and that means recorded votes if demanded.

Question #6: Can Majority Leader McConnell unilaterally change the Senate rules regarding impeachment?

This is an emphatic NO. For all the reasons outlined in the answer to Questions #4. The SENATE changes its rules.

Question #7: How would you sum up the bottom line about the Senate and impeachment---in plain English?

We'll do a one-liner and then a longer answer here.

One-liner: The Constitution does not require a trial. Current Senate rules do require a trial. The Senate could unanimously ignore those rules. A majority could change those rules or otherwise dispose of the trial. A change/disposal would require at least one recorded vote.

Hopefully, this thread has shown why it's so hard to talk about this: under current rules, there will (almost certainly) be a trial, and therefore there's no way to passively bury an impeachment the way the Garland nomination was disposed of via inaction.

If the Senate does not want to conduct a trial, or wants to dispose of the trial in 10 minutes, a majority will need to back that at least once. And that means you'll need to find 50 Senators to vote to change the rules and/or dispose of the trial.

Is that likely?

It's hard to say. Personally, I don't think it's very likely. For a couple of reasons. First, that vote would enormously high profile; people are kidding themselves if they think it wouldn't be the focus of political attention. And it would be seen as a deeply partisan move.

Second, if you had the votes to dispose of the trial in a procedural manner, then there's no danger of conviction. So at that point, the GOP might *prefer* a trial that they can control. It could be a week-long commercial for their side of the story.

This has been repeatedly brought up by
@jbview. And @henryolsenEPPC wrote an excellent piece on it last week.

washingtonpost.com/opinions/2019/…

@jbview @henryolsenEPPC Further, it's a matter of getting the votes. I'm not sure there's 50 votes in the Senate to have a show-trial, much less to dispose of a trial without actually having one. Even McConnell seems uninterested in that. Even given all the partisanship and cynicism right now.

Literally disposing of a trial on a single procedural vote strikes me as dangerous for both POTUS and swing-state GOP Senators. No one cares about procedural votes, but this would not be seen as such.

It's just very hard for me to picture Senators like Gardner, Collins, and Tillis---all up for election in swing states---signing on to what will surely be, at a minimum, portrayed as a sham. Seems *highly* likely they would just prefer to have an actual trial and acquit.

Ok. I hope that has all clarified at least some of this. My bottom line takeaway is that the Senate will have to act on impeachment articles, but that action could plausibly fall far short of what you think of in your head when you think "trial." But it probably won't.

Some people that you should absolutely be following who are better Senate-experts than me: @jiwallner @bindersab
@nielslesniewski @GregoryKoger @burgessev and lots more that I'm not including.

@jiwallner @bindersab @nielslesniewski @GregoryKoger @burgessev And here's my more general impeachment podcast/thread from yesterday.

https://twitter.com/MattGlassman312/status/1177602059165671424?s=20

@jiwallner @bindersab @nielslesniewski @GregoryKoger @burgessev Update: McConnell states clearly that rules require Senate to take up articles of impeachment. I discuss what this does/doesn't mean in the thread below.

https://twitter.com/MattGlassman312/status/1178717650165420032?s=20