D.J. Tice, Star Tribune Opinion’s commentary editor, makes an excellent case for the idea that it might be best for the impeachment of President Donald Trump to, in effect, simply stall out for awhile — maybe past November’s election (“Impeachment: A stalemate, and why should this be any different?” Dec. 29).
We’ve seen that America can wait a year for a new, postelection Supreme Court justice back in 2016, when Senate Republicans refused to act on former President Barack Obama’s appointee, Merrick Garland. Why not wait out impeachment, until “We the People” can speak?
Beyond the election year parallel, the Garland example is offered to make this crucial point: Today’s Senate can, and sometimes does, use raw constitutional power.
Throughout our history, America has relied, more than we sometimes realize, on unwritten rules and adult behavior to settle differences. The real “precedent” in the Senate’s refusal to consider Judge Merrick Garland’s nomination during the 2016 election year is that push can come to shove, and the norms of conduct that America has relied on can break down.
The central difficulty with Tice’s approach is that it implicitly assumes the “unwritten rules” are still there — still working. The evidence weighs strongly against this premise. However, and fortunately, by thinking through our situation from a push-comes-to-shove point of view, we can all come to see so clearly the dangers that lie ahead that Congress and President Trump may agree to avoid them.
Before considering the hope that still remains, let’s examine the constitutional ropes enclosing a potential House-Senate mud-wrestling ring.
The basics are two sentences from Article I. One is: “The House ... shall have the sole Power of Impeachment.” The other is: “The Senate shall have the sole Power to try all Impeachments.”
Here’s the Senate’s claim to control of the mud-wrestling ring: “When the House passed Articles of Impeachment against President Trump, they fulfilled their constitutional role. The process has now moved to the trial phase, where we, the Senate, are in control.”
The House can certainly cite “traditions” that have held sway since the first two completed impeachments (Judge Pickering was convicted and removed in 1804; Justice Chase was acquitted in 1805). In both of those cases the House and Senate interacted with extreme decorum. The House announced an impeachment, and informed the Senate that Articles would be exhibited and managers appointed. The Senate prepared rules; messages went back and forth. Everything was civilized.
Is this nice process enforceable as being constitutionally required? Almost certainly not.
In a push-to-shove scenario, the Senate could simply announce, to both the House and Chief Justice John Roberts: “We’ve read the House Articles of Impeachment regarding President Trump. We’ll set trial rules, and tell you what they are. Chief Justice Roberts is constitutionally mandated to preside; he shall convene the trial at ____ on ____; the House may present its opening arguments for ___ hours, starting at ____. We will then decide on witnesses, if any. If the House fails to appear, President Trump may be acquitted by default.”
Trump has no enforceable constitutional right to anything approaching a full and fair trial. But let’s keep in mind that the central premise of special counsel Robert Mueller’s decision to punt on obstruction of justice was that it would be unfair to make an accusation when there was no legal forum for the president to defend himself.
Doesn’t that principle apply to our present circumstances? Trump has already been accused by the House. Hasn’t the Rubicon been crossed?
From a purely push-to-shove, politics-as-combat perspective, it has. Constitutional power has shifted to the Senate. And, frankly, Trump prefers mud wrestling. House Speaker Nancy Pelosi and the Democrats need to understand the weak constitutional position the House has put itself in.
Any remaining hope for our traditional American way depends on leaders behaving as adults and agreeing to some reasonable, fair process. Tice has made clear the merits of our best available process option — deferring any impeachment trial until at least after the election. It’s within reach, but only if all parties, including Trump, can agree.
Our sad alternative may be a year of House vs. Senate. Impeachment mud-wrestling, at best.
Bob “Again” Carney Jr., of Minneapolis, is a writer and inventor.