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Impeachment is marching through the House. Here's why the Senate is another story ǀ View

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What happens after, as certainly seems likely, the U.S. House of Representatives votes to impeach President Donald Trump? Practically speaking, nothing. This is what allows for a president who has been impeached by the House to still run for election and be re-elected. (That has never happened, but it is technically possible.) President Bill Clinton was impeached by the House in 1998 but finished out his second term without incident. Under the Constitution, the House’s decision to impeach carries political and societal weight, but little legal consequence.

Any impeachment processbegins in the House — but it ends in the U.S. Senate. Right now, we are still holding hearings in the House. On Wednesday, the House’s Judiciary Committee will hold its own impeachment hearing, following the hearingsconducted by the House Intelligence Committee last month. In preparation for those hearings, the House Intelligence Committee will send a report of its investigation to the House Judiciary Committee on Tuesday.

The House Judiciary Committee is the committee that actually drafts the articles of impeachment. When that happens, they will be sent to the House for a full House vote. If one or more articles pass in the House, the Senate trial will begin.

Importantly, the Constitution does not provide us with many details for how to conduct a Senate impeachment trial. But it does provide the majority party in the Senate with enormous power to set the rules of the game, and therefore to help to ensure the winner.

The Constitution does not provide us with many details for how to conduct a Senate impeachment trial. But it does provide the majority party in the Senate with enormous power to set the rules of the game, and therefore to help to ensure the winner.
Jessica Levinson
Researcher

Think of the House’s decision to draw up and vote on articles of impeachment like a grand jury’s decision to indict someone accused of a crime. In both cases, it means little more than that there is enough evidence to go to trial. In the criminal law context, that trial happens in a courtroom. In the impeachment context, the trial will occur in the U.S. Senate.

But this is where the similarities between a criminal trial and a Senate impeachment trial end. We know what is supposed to happen in federal and state criminal trials in our country. Prosecutors must prove beyond a reasonable doubt that the defendant committed the crime(s). The defendant is entitled to due process and has the right to do things like cross-examine witnesses. There is a judgewho makes legal decisions, like which evidence will be included in the trial and what instructions to give the jury. The jury makes factual decisions, such as whether or not the facts demonstrate that the criminal defendant is guilty.

By contrast, we do not know exactly what is supposed to happen in a Senate impeachment trial. We have only very broad guidance from the U.S. Constitution. The Constitution tells us that presidents, and others covered by the impeachment clause, should be removed from office if they are impeached in the House and convicted in the Senate of “Treason, Bribery, or other high Crimes and Misdemeanors.” But impeachment for high crimes and misdemeanors does not mean a prosecutor has to be able to prove that the president committed an actual crime. Presidents, and others, can be impeached without alleging that a specific criminal statute was violated.

The Constitution further provides that only the Senate has the power to “try all impeachments,” that when the trial involves the president, the chief justice of the U.S. Supreme Court presides, and that the Senate must vote by “two thirds of the Members present” to convict.” The Senate essentially acts like the jury — if juries were divided along extremely partisan lines. Senators will not be asking questions like members of the House did during the impeachment inquiry. Instead, in a Senate impeachment trial, members of the House act in a quasi-prosecutorial role presenting evidence to their Senate colleagues.

But the Constitution does not give us a specific road map for conducting that trial. Instead, the Senate has the power to implement its own rules and procedures. Hence, Sen. Mitch McConnell, R-Ky., the Senate majority leader, has enormous power to shape the trial and try to ensure a desired outcome. In addition, even though Chief Justice John Roberts is presiding over the trial, he will only be ruling on procedural issues: how the Senate rules will be interpreted. And a simple majority of the Senate can vote to overrule Roberts’ decisions.

Sen. Mitch McConnell, R-Ky., the Senate majority leader, has enormous power to shape the trial and try to ensure a desired outcome.
Jessica Levinson
Researcher

Before delving into the specifics of the rules the Senate might implement, it is worth briefly considering the possible basis of the articles of impeachment drawn up by the House.

The articles of impeachment are likely to cover two or three big areas. The first concerns the allegations that Trump engaged in some sort of public misconduct, like abuse of power, bribery, or campaign finance violations, based on his alleged withholding of aid and a White House visit to Ukraine. The second area involves Trump’s alleged obstruction of the impeachment process itself. This would be akin to impeaching the president based on his failure to comply with the inquiry. This sounds meta, because it is. The specific allegations here would likely include things such as obstruction of justice and contempt of Congress.

It is also possible the impeachment articles could allege Trump obstructed former special counsel Robert Mueller’s investigation into whether there was a conspiracy between the 2016 Trump campaign and the Russian government.

Again, the Constitution provides the Senate with broad latitude in its handling of these articles. And the Senate does not have to treat each of these articles equally. Although this is unlikely, the Senate could actually vote to dismiss some or all of the articles of impeachment. This would essentially end the trial before it begins.

Assuming that something akin to a trial is held on at least some of the articles of impeachment, it is up to McConnell to determine if any witnesses are even called. Senate Republicans have the power to keep the proceedings very, very short, which would be politically advantageous for them.

The punchline is that the Constitution, for all of its moments of genius, provides certain elected officials with much discretion in one of its most solemn duties — the decision about whether or not to remove a sitting president. We will now see whether that discretion is abused.

  • Jessica Levinson is a professor and the director of the Public Service Institute at Loyola Law School, Los Angeles. Her work focuses on election law and governance issues. She is the former president of the Los Angeles Ethics Commission.

This piece was first published by NBC Think.

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