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What If The Senate Held an Impeachment and Nobody Came?

(Published under creative commons)

I’ve been on record a couple of times saying that the Democrats couldn’t possibly be stupid enough to actually go through with impeachment, considering the certainty he’d be acquitted, and the risks involved in an actual trial — like seeing Eric Ciaramella, Adam Schiff, Adam Schiff’s staff, James Comey, James Baker (the FBI lawyer), John Brennan, Joe and Hunter Biden, and Mike Rogers all called to testify. Not to mention pulling most of the front-runners for the Democrat nomination out of the race.

Then, yesterday, I said I was wr… wr… well, the W-word because it appeared they really were that stupid, or that crazy

So, today they have me honestly confounded: are they really (not quite) that stupid, or even more stupid? Damned if I know, but on Thursday we were offered:

Victoria Taft, the new kid at PJ, covered this last night: “Speaker Nancy Pelosi is now threatening to withhold the Democrats’ case unless she can dictate the terms of the Senate trial.”

The theory apparently being that unless they approve the rules in the Senate, they won’t present the articles of impeachment for trial, and the hope is that by not presenting it for trial they can continue to say Trump was impeached but Trump can’t say he was (as he inevitably would be) acquitted.

Of course, this means I was wrong about being wrong, at least to the extent that they are willing to vote out articles of impeachment, but not to actually proceed to impeachment.

Mitch McConnell has already responded:

“House Democrats want to create new rules for this president because they feel uniquely enraged,” he argued. “This is by far the thinnest basis for any House-passed presidential impeachment in American history.” He condemned it as “the most rushed, least thorough, and most unfair impeachment inquiry in modern history.

McConnell noted that Pelosi is considering not sending the articles of impeachment over to the U.S. Senate. After rushing through the process of impeachment in the House, “they’re content to sit on their hands.”

“The Democrats’ own actions concede their allegations are unproven. The allegations are not just unproven, they’re also legally incoherent,” he said. “If the Senate blesses this historically low bar, we will invite the impeachment of every single future president.”

So, in today’s bidding, we’ve got “it’s imperative to push this through now for the protection of Democracy,” but “we’re in no hurry to actually prosecute.”

It presents, however, an interesting issue: can they refuse to proceed?

That’s less clear. The Constitution describes impeachment in Article II Section 2, Clause 5:

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

That’s pretty much it. Article II Section 3, Clause 6:

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.

In both cases, it’s the respective House’s prerogative to make their own rules, so Pelosi’s insistence on not sending the Articles to the Senate until the Senate’s Rules suit her is pretty clearly in conflict with the Constitution. (I like to imagine McConnell demanding he won’t accept articles that were made under rules not to his liking, but then I like watching mixed-martial-arts competitions.)

I asked Glenn Reynolds about it, and he had a good point: under the current rules, the House needs to send Impeachment Managers to the trial, but that doesn’t stop the Senate from considering and dismissing the impeachment anyway.

Which would be hilarious.

We forget, however, that the Senate makes its own rules, and thanks to the Harry Reid Nuclear Option, it now can change the rules by a simple majority. We forget also that the Senate has impeachment rules, as adopted unanimously for Clinton’s impeachment.

So here’s my nefarious plan, offered to Mitch McConnell in the unlikely chance that he has nothing more deliciously nefarious in mind: McConnell announces the impeachment will be held on some certain date — let’s say 20 January just to be definite — under the Clinton rule. The articles are public. If the House doesn’t send their Impeachment Managers, the Senate dismisses for failure to prosecute. If Nancy relents, then dismiss anyway, because the Articles are clearly unconstitutionally vague.

It gets better. The Constitution doesn’t require a quorum: it specifically says “2/3 majority of the members present.” If the Democrats threaten to walk out, fine — then he’s acquitted unanimously by the members present.

But here’s the coup de grace on the coup d’etat: once the impeachment trial is concluded, the Senate, or rather committees of the Senate, are free to hold hearings. In which they would call, you guessed it, Eric Ciaramella, Adam Schiff, Adam Schiff’s staff, James Comey, James Baker (the FBI lawyer), John Brennan, Joe and Hunter Biden, and Mike Rogers.

You may now imagine my gleeful laughter.