Posted on 12/20/2019 2:45:05 PM PST by bryan999
Both of you are making excellent points; great contributions to the best resource on the net.
My only quibble is that I believe existing Senate rules stipulate that the chamber must take up impeachment when given notice by the House. So, in that regard the Senate is very different than normal criminal/civil court processes. That is, the 3rd branch has well developed systems & procedures in place to handle preliminary steps, scheduling, delays, appeals, etc.
If my understanding is correct, then under existing Senate rules, the Senate is at mercy to the whims of the House. That doesn't sound very reasonable or in character whatsoever for the Senate - especially if they are bound to cease regular business in order to try the impeachment.
I think the proposal floating around to update the Senate rules in order to force a timely issuance by the House would head off further potential abuses. No one thought it was necessary before, but that shipped has sailed now that the House has destroyed 230 years of precedent by passing a resolution to impeach based on purely political motives.
I’ll repeat myself since this is apropos to your point. Enact 2 rules: 1) Due to the seriousness of the question, votes in the House for impeachment that are not submitted to the Senate within 10 days of the vote shall be deemed frivolous and will not be taken to trial; and 2) only the Speaker of the House is allowed to prosecute impeachment cases and speak on the floor of the Senate trial. Doing this, the House will have to A) send the articles over right away and B) replace Pelosi as speaker since they all know she is in no condition to prosecute the case.
Yes exactly! Pelosi is exploiting the current rules to her party’s political advantage; to hog the spotlight longer; to control the narrative longer; to issue demands; to get her people more airtime and print and tweets; and to keep a cloud over Trump as long as possible (imo they think the cloud of the Russia Hoax/Mueller probe helped them to win the House in 2018, esp those districts that Trump won in 2016, so they want another cloud over him for 2020). Thus Pelosi figures drag this out as long as possible to inflict as much damage as possible. Certainly let it fester through the holidays. So divisive to America.
The Senate isn’t exactly at the mercy of the House; however POTUS is. And this is politically bad for the GOP. McConnell as a leader of the party simply cannot allow it.
Not as much as you might think. Of course an impeachment of a president is a high priority, but the senate passed all sorts of legislation the same days it was handling the impeachment case. Legislative, confirmation and other business did not grind to a halt. The senate was probably less preoccupied with the Clinton impeachment than it was with comprehensive immigration reform that it handled for a couple weeks and never passed.
Most senators are lawyers, and the details of the process are substantially setup by assistant/staff lawyers in the senate.
There is no appeal system. As far as procedural stuff goes, CJ SCOTUS rules on wehther the senate is following the rules the senate wrote, and the senate can override those decisions by voting.
You've seen the senate (general) rules on impeachment? Skimmed the Congressional Record of Clinton's impeachment? This case is way easier than Clinton's, just based on the content of the allegations and weakness of evidence. In Clinton';s case there were real arguments over a felony being grounds for removal.
I understand your sentiment but I think you should preface your statement with “it seems to me” or “I think” or IMO. Because there are White House and Senate lawyers as well as constitutional attorneys like Mark Levin who say the Senate can set a deadline followed by conditions for not meeting the deadline, then dismiss based on failure to prosecute.
It’s analogous to a prosecutor obtaining indictments, then claiming they’ll prosecute when they damn well want to. This violates the right of the accused to a speedy trial. If and when it goes to SCOTUS, it should be a clear ruling the Constitution did not intend that impeachment be treated like a play thing. It is an emergency process to prevent harm to the nation.
> “My only quibble is that I believe existing Senate rules stipulate that the chamber must take up impeachment when given notice by the House.”
In normal order yes, but it’s clear the Democrats are playing the system and displaying bad faith. Hence, the issues are taken to the Supreme Court for a writ of mandamus. See my #105 above.
Had just read this before posting #105.
You and I are on the same page as far as principles and rights such as a right to a speedy trial.
In normal order, the Senate would wait for the House to respectfully present the articles. Pelosi’s mistake was to state in public she would withhold presentment indefinitely. That’s a violation of principles of jurisprudence.
Nah. Too sure of my knowledge and facts.
As I said, the Senate can set whatever rules they want for handling an Impeachment from the House in their trial.
I like my analogy in post #5.
in theory, the benefits of a speedy trial not only accrue to the accused but also to the accusers and the public at large.
could trump request that the senate as trier of law as well as fact in the matter, take judicial notice of the house articles, and then dismiss them purely on 6a grounds (via a writ of mandamus, perhaps)?
trump is being accused in his office as president, so at least in some sense, the office of the president deserves a speedy trial, otherwise the lack of a speedy trial risks hamstringing the business of 1/3 of the federal government. this in turn can have adverse effects on all citizens.
making the argument directly to the senate would in theory short circuit any issue related to roberts.
Clinton was disbarred and fined for the crimes he was found to have committed by the special prosecutor.
Although the crimes committed by Clinton were adjudged in the Senate to fall short of the constitutional standard for his removal, they were crimes nevertheless.
It’s clear that impeachment is a proceeding covering alleged crimes. And the Senate role in impeachment is to conduct a trial.
We thus have crimes and trial associated with impeachment but we know the Senate is limited in sentencing to removal only. But we expect the crimes to continue in criminal courts after removal.
It seems reasonable that SCOTUS would rule to apply principles and rights to an accused in a presidential impeachment proceeding.
We really don’t want the Houses of Congress sticking their noses or fingers into each other’s business.
That’s more important than any other factor here. It’s a venerable tradition. Probably as old as England’s parliament.
Sorry Nancy is attacking that very tradition with her media-supported flummery but that’s the way it is.
As far as the Senate is concerned nothing happens in the House until the House informs them.
One branch of the government holding another branch of the government hostage is unconstitutional. That’s what this amounts to. The rules which currently allow this to happen should be brought forth to the USSC for a proper judgement as to whether or not they fit within the framework of three co-equal branches of government as prescribed by the founders. This is what needs to happen. No one has to obey a law that is unconstitutional and that’s the position the Senate and the President should take. The impeachment process is there to deal with removing a threat to the nation, not to be used as a political weapon to be used as a threat to another branch of the government.
The Dems better watch out. These same charges can now be used against them when the Republicans take the House.
Nancy Pelosi has abused power and obstructed congress at every turn. And we have real evidence for that.
my proposed action would not constitute the senate sticking its nose into the house’s business.
in this case, the house has incompletely discharged its impeachment prosecutorial duties as set forth in the constitution.
under the common law principle of ubi jus ibi remedium, then, the president may file directly with the senate (since otherwise the peoples’ business may be adversely affected by the house’s incomplete discharge of impeachment prosecutorial duties).
i agree with you in the sense that imho what we don’t want is the ussc sticking its fingers into congress’ business. all of this can be done via written filings directly with the senate, and copies served to all involved parties.
Congress is not the judicial branch, ex post facto and all that.
Our judicial branch is certainly not going to support a House of Congress seeking judicial powers, and shouldn’t.
It’s to be run as a legislative body, even in Impeachment. The Constitution has no mechanism for the Executive to supersede the House’s *sole power* to impeach.
If the Senate considers something that happened in the House to have ‘voided’ the House’s impeachment articles of course they can.
Setting aside the detail errors (6a has no application, not a criminal trial; "mandamus" is the name of a judicial writ), what you propose is an inversion of the usual process.
I won't say it can't be done, because everything in the way this case is proceeding is unprecedented.
Anyway, what you are suggesting is that the accused, the defendant, present himself to the court sans accusation and accuser. Would the senate entertain that sort of move? There is no precedent, no procedure to do this.
But a senate committee could take up Trump's defense and hold hearings, call witnesses, and so on. That creates a record in the Senate.
Right now, I'm of a mind to let this fester. I think it hurts Nancy and the DEMs more than it hurts Trump. A number of DEMs are sensing that the public is puzzled at best by Nancy's maneuver.
I checked all the precedents, and what Pelosi is doing is truly unprecedented. The house might wait a few days to name managers, but it always plays the roles designed into the impeachment process, including taking the initiative to take its case to the senate.
“They then act as prosecutors?”
.........
Not really, it is a legislative process not a judicial trial.
.........
The managers present the articles, explain them and the evidence and testimony from the House.
...........
..........The actual debate is by argument between the Senators. Only Senators can call for and question witnesses. That’s the key difference with prosecutors at a trial.
apparently henry hyde presented the articles on the same day (a saturday) to the senate in 1998. in 1868 it apparently happened over a 2 day period.
(so much for precedents...)
“POTUS is impeached when so voted by the House, and removed if convicted in the Senate.”
The house basically hands the
senate an indictment. The senate
then votes to acquit, impeach
with removal, or impeach without
removal. The house argues the
case (using managers). The senate
then votes on which action to take,
based on the argument. (articles).
With Pelosi’s refusal to submit
the articles to the senate,
Trump has not been impeached.
Not sure who did it, I think it was all or some of the named managers, following the authority and directions provided by the managers resolution. Hyde was a manager
Messages from the House received subsequent to sine die adjournment - Jan 6, 1999
... the Secretary of the Senate, on December 19, 1998, subsequent to the sine die adjournment of the Senate, received a message from the House of Representatives ...
-- in 1868 it apparently happened over a 2 day period. --
I read the relevant parts of Jefferson's Manual and Various House precedents (Deschler, Cannon, Hinds), and what the House is doing is truly unprecedented.
Are you under arrest if the cop says "you're under arrest," but then does not take control of your liberty? IOW, you are "under arrest" and "free to go" at the same time. It's nonsense.
One bright day in the middle of the night, two dead boys got up to fight.
Back to back they faced each other, drew their swords and shot each other.
My inclination is to not try to "out clever" the miscreant house. At least not yet.
The Senate can certainly express its sense, it can conduct hearings on the same underlying phone call and facts, call the same witnesses (into committee) the house did.
The calculus is what path plays best politically, mindful that the press is 100% arguing the DEM side of the case, all the time. Give it oxygen, or starve it?
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