If the House votes to impeach, does the Senate have to have a trial?

I don’t see where the Constitution specifically requires the Senate to try a person that the House has voted to impeach.

Article I, Section 3 of the Constitution (6th paragraph) says, 'The Senate shall have the sole Power to try all Impeachments." But it doesn’t say the Senate has to use that power. And if that requirement is stated somewhere else in the Constitution, I’ve missed it.

(I raised this issue here, and that thread seems like a fitting place to discuss the likelihood of such a possibility arising anytime soon, and what the politics of it might be.)

Article I, Section 3 of the Constitution contains the word “shall” which is often interpreted as a command or requirement.

**emphasis **mine

At least as it regards and impeachment of the President the Chief Justice is required to preside over a trial in the Senate. So, IMHO, there has to be a trial.

However there is no particular compulsion on issues such as timeliness. Could the Senate delay a trial until after a mid-term or general election? Perhaps.

What’s the remedy if the Senate just doesn’t do it?

Iggy: The first “shall” just says the Senate has the power to hold the trial. It doesn’t say “The Senate shall hold a trial”. But even if it did say that, what would happen if the Senate just didn’t do it?

Perhaps the Senate could refuse to hold a trial, but it seems very unlikely. Look at the last time a President was impeached. There was no doubt at all as to the outcome-if I remember correctly Clinton didn’t even bother to attend the trial. But the Senate was all in favor of having a trial since the Republicans thought it benefited them and the Democrats wanted to demonstrate that there wasn’t even a majority much less the required 2/3s votes to convict. Given that both sides wanted to hold the trial, the theater was on. There were more headlines about the fancy new robe the chief justice wore than on the facts of the case.

To actually answer the OP, I don’t think the Senate HAS to hold a trial-it looks like they have the authority to ignore the House, but it is very unlikely for several reasons that they would ignore the opportunity to grandstand.

Apparently when the House impeached Senator William Blount in 1797, the Senate refused to hold impeachment proceedings and simply expelled him on their own authority instead. But that’s the only historical case of this I can find.

Suppose the Senate is controlled by the President’s party and the House by the opposition. The House impeaches and the the Senate just says F-you to the House. Nothing happens. But, when the Senate flips, they can hold the trial and, I think, they can do so even if the president is no longer in office. It’s kind of a moot point since the trial is only to determine whether the president gets kicked out of office or not. But I don’t see that there is a statute of limitation on the impeachment trial.

Article II, Section 4 provides that

Though the House could vote to impeach an outgoing official whose term of office is ending it is not clear at all that they could vote to impeach someone who is out of office. Nor is it evident that the Senate could proceed with a trial of someone who is no longer the President, Vice President or a civil Officer of the United States even if the House voted articles of impeachment while the person was still in office.

And the earlier post… the “shall” commandment I referred to is in relation to the Chief Justice of the Supreme Court who shall preside over an impeachment of the President. Perhaps an argument could be raised that such requirement only arises when a trial takes place and the Senate would be within its power to not hold a trial.

But that phrasing still does not compel a trial. It seems to compel removal from office once the trial was held and if a conviction is returned. But it doesn’t compell the trail itself.

I would say the Senate is compelled to hold a trial in the same sense that it is compelled to hold a vote on a Supreme Court Justice nominee. And we all know how that goes! :slight_smile:

Anyway, like I said before, what is the remedy? I don’t see that there is any.

But, this time, any vote has political consequences. If you are a senate republican, and you vote to convict trump, then you have pissed off his base, if you vote to acquit him, then you have pissed off pretty much everyone else. Fairly similar to the garland lack of vote. Not having to vote means not having to deal with any potential political repercussions of the vote, and so if the senate majority leader can, on his own, prevent a vote from coming to the floor, then it relieves that pressure.

They could still vote to prevent him from holding office in the future, for whatever that is worth.

If anything, I’d say the language of the Constitution is more easily interpretable as requiring some ‘advice’ on the part of the Senate than it is to interpret it as requiring a trial in the case of impeachment. And like you say, we know how that went.

This, in spades. I don’t think a Supreme Court that was an ideological ally of the House majority, if such was the case, could compel the Senate to act.

Like John Mace was saying in a related context, what would be the remedy? Who would stop them?

I think it would make a great deal of sense for impeachments to continue to their conclusion even after the official in question had resigned, just to provide a definitive judgment. Nixon’s defenders still talk about how he was ‘hounded from office’ even though at the time of his resignation, it was unlikely that he had ten votes in either House of Congress.

A pretty straightforward argument, IMHO. “When you change lanes, you shall use your turn signal” doesn’t require that you change lanes at every opportunity. Nor does “When the President of the United States is tried, the Chief Justice shall preside” require a trial every time the House votes to impeach the President.

Even if holding the trial or not is optional, is it the Senate that has that choice? Could John Roberts walk into the Senate chamber, pick up the gavel, and say “As presiding officer, I declare the trial to have begun”? If he tried it, who could stop him?

It seems like the more permanent question is: Who would be required to cooperate with him?

But, presumably, the Capitol Police could be called upon to physically remove the CJ if the Senate so wished.

Just to extend the constitutional crisis, what happens if 4 other members of SCOTUS support Roberts in this?

I don’t think there is anything in the Constitution that directly compels them to hold a trial. With that said…

What will compel them to act is the strength of public opinion. If Republicans can’t control that, then they will lose everything.

Why do you suppose they’re working so frantically to put Sinclair propaganda in every household?

Why do you think the crazy on Fox “News” grows louder and more hysterical?

Why the constant drum beat about “fake news” and that the media is “the enemy of the people?”

Why was net neutrality such a huge issue for corporate interests?

Why have the Breitbart types moved into Europe and are working so hard to weaken our traditional – and extremely effective – alliances with the nations of Europe?

Why does Trump propagandize over and over and over: Witch hunt, rigged, disgrace?

Why does Trump treat Democrats as if they have no place in government and no longer even pretends to represent the majority of people in this country?

Why do Republicans hold sham trials against those who are pursuing criminals instead of being concerned about the actual criminals?

It’s all about the message, in an effort to influence just… enough… people… so that they can carry on with their dismantling of the institutions of this country with a thin veil of public support. I throw things at the television whenever I hear a pundit say, “Republicans won’t act because they’re afraid of their base.” They’re stoking that base. They need that base.

Impeachment is a political process. Politics is all about controlling public opinion. If enough people don’t swallow the propaganda and loudly force their representatives to act in a more responsible way, the Senate will have to hold the trial, irrespective of the actual wording of the Constitution.

We should all be doing everything we can to force our local election officials to harden their systems, to get out and be loud every chance we can, to ceaselessly badger (in a courteous way, of course) our state and local officials to be accountable for every action they take – or don’t take. Lastly, find someone who doesn’t vote and see if you can persuade them to vote in 2018 and beyond.

They only have power to not be accountable to their citizens if we cede our responsibility as citizens to hold them accountable. If we the people demand a trial, there will be a trial.

This is equally true of how far the Supreme Court can go. If they find themselves too much out of step with what the majority of this country wants with respect to their actions and their rulings, there are things that can be done to remedy that. Example: Court packing, and while I don’t generally support this, I think it’s the only remedy when the SCOTUS becomes too politicized and activist.

RTFirefly, if you only wanted to discuss what would happen in normal times, then I apologize for my tirade. But these are not normal times.

I think this illustrates the fact that there is no ultimate official authority that compels certain actions at the highest levels, except the people with the power of the vote, and ultimately the people with the power to change governments by force if necessary. The constitution presents a framework, some of the elements of which are left to good judgment and goodwill. We are fortunate that many of those have never been tested, and the ones that have been tested have been settled peacefully (with one notable exception!).

The kinds of speculation in this thread and in many other places have to do with what happens when good judgment and goodwill are absent in the majorities of both houses and in the executive. We can hope that the people will show those qualities when they next vote, but there is no guarantee of that.

Ask yourself, not about Trump, but about the next populist who comes along. What if s/he isn’t corrupt but is pure and driven by ideology instead of greed (I’m thinking of Walter Huston’s character in the movie “Gabriel Over the White House” as an example, a truly terrifying movie)? If there is nothing to impeach for, the only defense is at the ballot box, which is where the populist wins most easily. This is the direction my fears take. I had hoped not to live to witness it, but good judgment and goodwill seem thin on the ground these days.

I don’t see how it would matter. It’s the Senate that has to vote on whether to convict or not, so even if they managed to hold some kind of trial, the Senate could just refuse to vote. The Justices could try (no pun intended) to take over that function themselves, but who would listen to them?

Not to mention, the CJ can preside, but in order for him to have something to preside over, the Senate has to go through the motions of a trial. The CJ can’t compel even that much.

Which makes one wonder: Is there anything that the Senate has to do? That is, is there any way to dissolve the Senate or somehow change the leadership if the Senate refuses to do X?

I think the only remedies there are by ballot or by gun, and I vastly prefer the former.