After the House of Representatives’ recent decision to issue two articles of impeachment, it appears the Democrats are having second thoughts. House Speaker Nancy Pelosi (D-Calif.) thus far has refused to transmit the articles to the Senate because Senate Majority Leader Mitch McConnell (R-Ky.) publicly has expressed doubts regarding the merits of impeachment and the need for a Senate trial.
The Constitution, of course, gives the Senate “the sole power to try all impeachments.” While the House typically has appointed “managers” who act as prosecutors in the Senate trial, the manner of that trial is ultimately up to the Senate.
Here, as in ordinary criminal cases, pretrial dismissal is an important means of ensuring respect for due process and justice to the accused.
Ordinary criminal procedure gives some guidance about appropriate due process for an impeachment trial.
Impeachment proceedings closely resemble those of a criminal case, not least by being reserved for specified crimes like treason, bribery, and “other high crimes and misdemeanors.”
In an impeachment, the House of Representatives acts like a grand jury, investigating offenses and determining if there is sufficient evidence to proceed to trial. Like the “probable cause” necessary for an indictment, the first stage of impeachment must meet a lower threshold than conviction.
Accordingly, a simple majority is enough for passing articles of impeachment.
Removal of a President is another matter.
The Senate acts more like a trial court and “petit” jury.
A conviction must be made by a super-majority of two-thirds, and, like a trial court, the Senate also must evaluate whether the proposed impeachable offenses meet the constitutional requirement of “high crimes and misdemeanors.”
McConnell has pointed out the obvious after the initial party-line impeachment vote: “The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.” In response, Nancy Pelosi has criticized him as a “rogue” Senate leader, acting in cahoots with a “rogue” president.
Among other complaints, the House is now insisting on presenting witnesses in the Senate trial. While one questions whether this is going to help their cause, it would also depart from the procedures used in Bill Clinton’s 1999 impeachment trial, where the Senate had the option to consider examining witnesses only after an initial presentation by the House managers.
More important, this insistence by the House on dictating the Senate’s procedures is contrary to the Constitution’s grant of power to try impeachments “solely” to the Senate.
Guaranteeing witness testimony would be a great departure from the practice of courts presiding over criminal and civil trials. Far from requiring witness testimony in all cases, due process often requires that a matter be dismissed because of some fatal legal error apparent to the court before a trial is conducted . . . the earlier the better.
Courts have the power to dismiss an indictment.
Among federal courts, this extends to cases of “selective or vindictive prosecution,” “a defect in the indictment,” and “failure to state an offense.”
Courts also may rule on a case before it goes to a jury and after the prosecution rests, determining that “as a matter of law” no reasonable jury could convict. All of these decisions by courts either limit or dispense with trials altogether.