Posted on 12/19/2019 9:15:42 PM PST by SeekAndFind
It’s hard to believe the Speaker’s latest stunt will go on for very long. I’ll confess: Last night, when I was first told that Speaker Nancy Pelosi was toying with the idea of not delivering the two articles of impeachment voted by the House against President Trump, I assumed it was a joke.
For these last weeks, the Democrat-dominated chamber has been in a mad rush to impeach the president. Democrats even tacked on article two — “obstruction of Congress” — because, they told us, time could not be wasted engaging in the usual negotiation and litigation over legislative demands for executive branch information. Trump is a clear and present threat to “continue” undermining our elections, we were admonished. That’s why he needs to be impeached right now. That’s why the political class cannot responsibly leave his fate up to the sovereign, the People, who will vote in November.
But now that the deed is done, it’s . . . hey, not so fast.
Pelosi and Democratic leadership have convinced themselves there may be advantage in delaying the formal, ministerial delivery of the impeachment articles — as if Mitch McConnell were in as much a hurry to receive them as Democrats were to conjure them up. The thought is that this latest strategic petulance might pressure Senator McConnell into promising a full-blown trial, including summoning as witnesses top aides of the president whom the House didn’t bother to summon because tangling over privilege issues would have slowed up the works.
So it’s not a joke, but I still have to laugh. When I was a prosecutor negotiating plea deals, I always found the most pathetic defense lawyers were the ones who acted like they were playing with the House money when, in stark reality, it was they who needed something from me. Now here’s Pelosi trying to play hard to get with McConnell who, I imagine, couldn’t care less how long Democrats want to dither.
What we’ve just seen is the most partisan impeachment in American history, every step of it politically calculated. Obviously, if Democrats perceived advantage in stretching the process out, it would still be going on. There would be more witnesses; more 300- or 600-page committee reports to try to add heft and gravity to vague allegations of inchoate misconduct; more speeches about Trump as a threat to democracy and life as we know it; etc., etc.
To the contrary, Pelosi & Co. want this train wreck in the rearview mirror ASAP. The public is indifferent and polls are edging in Trump’s favor. On our local news this morning, the third impeachment of a president of the United States in American history couldn’t crack the top stories — it came in behind cold weather (in December) and the rescue of an elderly man in a gym by a couple of off-duty cops.
No one, of course, has to explain this to McConnell. In public, at least, he’s not a laughing-his-head-off kinda guy, but if he were, he would be.
It’s hard to believe the Speaker’s latest stunt will go on for very long. In the Senate this morning, the Democrats’ minority leader, Senator Chuck Schumer, renewed his demands about trial procedures, discovery, and witness testimony. There was no discernible hint of doubt that the House would soon deliver its impeachment articles, such as they are.
But since we’ll be playing trivial pursuit for a more few hours (days?), we might as well ask: As long as the House withholds the impeachment articles from the Senate, has Trump been impeached?
In the law, there are many situations in which an outcome is known, but it is not a formal outcome until some ministerial act is taken. A grand jury can vote an indictment, for example, but the defendant is not considered indicted until the charges are filed with the clerk of the court. A defendant can be found guilty by a jury, but there is technically no conviction until the judgment is “entered” by the trial court, usually months later when sentence is imposed. An appellate court can issue a ruling that orders a lower court to take some action, but the lower court has no jurisdiction to act in the case until issuance of the appellate court’s “mandate” — the document that formally transfers jurisdiction.
Plainly, Congress has similar ministerial acts of transference that must occur in order for legislation to pass. Were that not the case, Speaker Pelosi would not be talking about delaying the transfer of impeachment articles.
So it’s all well and good for the Speaker to hold up the works that Democrats, five minutes ago, were breathlessly telling us had to be carried out with all due haste. But many scholars take the position that the Constitution requires a trial if there has been an impeachment. If such a trial cannot properly occur unless and until articles of impeachment have been transferred from the House to the Senate, and Speaker Pelosi won’t transfer them, has President Trump actually been impeached?
Sure, it’s a stupid question . . . but we’re living in stupid times.
What’s true as a matter of Constitutional Law and what’s true as a matter of House Or Senate rules may be different.
It’s undeniable that the Senate rules require the Senate to conduct a trial, and to do so using using members of the House as the prosecutors. And that they also require the impeachment be transmitted to them by the Senate.
But it’s also undeniable that the Constitution itself imposes no such requirements. And that it makes no reference to any required “ministerial actions.”
If the matter ever comes before SCOTUS, that entity is duty bound to hold the Constitution’s mandates and constraints above the rules of either chamber of Congress.
LOL
If Democrats had any brains at all...they would get rid of Nancy Pelosi...tomorrow morning!!! They are dying by their own hand...politically!!!
And there we go.
Just verifying olesigh - he's Class of 98.
That actually means something around here.
Bill of attainder.
Very interesting! Trump should sue Nancy, Adam and Jerry.
It's still the result of an indictment.
Some have confused passing legislation in one house of Congress with impeachment.
It is argued that there are steps to be taken after an impeachment vote that cause an impeachment to not take effect without those steps. I would argue otherwise.
The example I will use is the passing of legislation. When the House votes in favor of a bill, it is not effective. When the Senate votes in favor of that same bill, it is not effective. When the President signs that bill, it is immediately the law of the land. The President typically holds up the document for all to see and passes out the pens he used to sign the bill to others who attended.
If the President vetoes the bill, then it is not law. At such time as the two houses of Congress vote to override his veto, when the last one votes, the bill becomes law.
Now consider impeachment. It is a sole power of the House. It requires a simple majority. I would claim that it becomes an impeachment at the instant the Speaker announces the results of the vote and bangs the gavel down. It depends upon no other act.
The impeachement trial in the Senate, if there is one, is a totally different power that is exercised only by the Senate. There is no obligation to hold a trial; only the power to do so. I would claim that the Senate's power includes the power to recognize impeachment acts by the House and to act on them as they see fit.
McConnell (in my dearm): Rules? Ok, we’ll use Shitt’s rules. I get to say who speaks, who needs to shutup, and what witnesses y’all can call. It’s only fair.
my Question is if the impeachment is not delivered to the senate before the new congress starts does it die when the new congressional term starts if it does die in this way does that mean Trump was never impeached
Fabulous
Clements’ prophecies regarding Trump are eerily....prophetic
Love that Smudge!
Bookmark
If you don’t give effect to your acts, they never happened.
Just because the House had a vote isn’t enough to give it effect; formal action has to be taken to provide it.
This is the case with passing bills and its also the case with impeachment.
Democrats of course are free to have buyers’ remorse about but they have no right to withhold the benefits of trial from Trump for their political convenience.
If the political calculus is no longer favorable to them, neither the Senate GOP nor Trump is obligated to make them whole.
Trump still enjoys the presumption of innocence regardless of what the Democrats ultimately do or don’t do with their articles of impeachment.
Andrew McCarthy is right: we are living in stupid times, indeed.
Every ba kyard or constitutional lawyer can argue both sides of this till they are blue in the face. Thats why we have a chief justice and supreme court to settle this issue
It is nothing but structural process (govt paperwork) but the House clerk must file and make public the House proceedings in the public register. Once that is done the Senate must take up their end of the impeachment proceedings. Nowhere does it state specifically that the written articles of impeachment needs to the human walked over to the Senate clerk and thus officially delivered and in the hands of the Senate.
I know, I know, it’s all semantic fluff but the processes established in antiquity are still to be followed today and have been up to this point.
This has always been a process on autopilot. Nobody has ever stopped this normal flow between houses before, that I’ve been able to find. (Other than bill spelling errors needing correction caught by the clerk)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.