by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Now that the House has launched an impeachment probe of President Donald Trump, the Senate should reform its antiquated rules for the looming trial. Under current procedures, a trial produces the worst of both worlds. If the House has a flimsy case, the Senate must still put the country through the wrenching, divisive political spectacle without any opportunity to dismiss the case. But if the House has a strong case, senators must sit silently by without any chance to participate directly in the trial. Allowing a real trial will improve the decision-making over whether to fire Trump and will make the Congress more responsive and accountable to the American people.
With House Democrats suggesting a swift march to impeachment by the end of the year, senators can attend to the defects revealed by President Bill Clinton’s 1998 trial. Those rules give senators a passive role: They cannot reject the House’s decision to send an impeachment over, they must sit and listen to House prosecutors and White House defense lawyers without making a peep, they never see witnesses or documents, and they never make arguments over the facts or the law of conviction, particularly the meaning of “high crimes and misdemeanors.” …
… Nothing in the text of the Constitution says that the Senate must consider a House impeachment promptly, or even at all. The Senate could postpone consideration of a House impeachment indefinitely — say, until after the 2020 presidential election. Just as a court need not schedule a trial upon a prosecutor’s wishes, so the Senate can suit its own convenience, not that of the House. Or the Senate could simply vote to reject the case, much as a court can find that a plaintiff cannot win its case, even if all the facts are accepted as true, because it cannot meet the requirements of the law.