Law prof: The Senate isn't required to hold an impeachment trial at all

Forget for the moment the question of when Nancy Pelosi will send over the articles of impeachment. Does the Constitution require Mitch McConnell to do anything with them except perhaps give the House a receipt? Georgetown law professor Bradley Blakeman argued yesterday evening in The Hill (via Twitchy) that an impeachment trial is neither required or needed, especially in this instance.

To be fair, Blakeman does write that the Senate will be required to take some action, but that it doesn’t have to be a trial. All McConnell needs to do, Blakeman writes, is to call a vote to dismiss before a trial even starts — and that would require only a simple majority, as it is just a procedural motion. McConnell has publicly stated that he has no choice but to start a trial, but has also mentioned instant dismissal as an option for three months, so this is nothing new.

Blakeman then steps through all of the other options open to McConnell, including a non-instant dismissal, a full-blown immediate trial with a vote on whether to convict or a vote to dismiss, or what Blakeman calls “the nuclear option”:

And then there is a “nuclear option.” The Senate majority could make a procedural motion to adjourn the start of a trial until Nov. 4, 2020. That would allow the American people to decide the president’s fate at the ballot box. The Constitution is silent as to when a trial should occur, timewise. A simple majority of 51 votes would be necessary to pass such a motion.

It’s not in anyone’s interest to keep this going for another ten months, though. Pelosi’s bluffing about the delay, but McConnell and the White House don’t want this particular Sword of Damocles hanging over their heads throughout an election cycle either. There’s always the prospect of more testimony coming out from disgruntled former insiders that will turn impeachment into a bigger negative for Republicans than it is now, which would also put pressure on them to open a trial more expeditiously and in more depth as well.

Blakeman’s larger point hits the mark more accurately. The problem with any of the trial options is that it’s going to be just an extension of the House’s Kabuki theater, only in the other direction. Everyone already knows how it will turn out, in large part because the House’s impeachment is so defective:

In my opinion, a trial is unnecessary. The House articles, on their face, are defective. Both fail to meet the constitutional threshold of “high crimes and misdemeanors.” This would negate a trial but does not give the president any formal “acquittal,” after a trial on the merits of the articles, which would prove the president’s innocence. While this would be true in a traditional criminal judicial proceeding, it is not the case in a political trial. No matter how the Senate deals with the articles of impeachment, Democrats and Republicans will put their own political spin on the outcome. Since the House articles of impeachment were voted strictly on party lines, and the country is so divided on the whole impeachment process, in my opinion, a trial is less important.

This is the most obvious, and most depressing, prediction about the entire mess. It’s what happens when one party defines “abuse of power” untethered to any criminal act, and especially in the absence of any direct evidence of testimony to it. It leaves everything open to interpretation, which leads to nothing but spin. The inevitable acquittal or dismissal will satisfy none of Trump’s critics, even as this impeachment convinced none of his supporters. This is precisely why the founders chose not to include “maladministration” as an impeachable act, and why they feared that impeachment would turn into a partisan exercise.

So what happens after acquittal? Blakeman has a suggestion that won’t add to the partisan fires at all, no sirree:

The Senate can dismiss the articles of impeachment on a procedural motion. Then, when the dust settles, the Senate Judiciary Committee through its chairman, Sen. Lindsay Graham (R-S.C.) could hold hearings to show what a “witch-hunt” the House process was. He can, in effect, conduct his own trial to “acquit” the president through Senate hearings. This would allow hearings to be conducted at the exact time that Democrats are seeking their party’s nomination for president — one of whom could be called to testify.

And then we can set fire to the Capitol building just to watch the awesome flames! Just because something can be done doesn’t mean it’s wise to do it, as we just all saw with the House’s impeachment effort. Such an effort would have just as little bipartisan credibility as Adam Schiff’s kangaroo court in the House Intelligence Committee, and would do nothing except turn off the normals. Haven’t we all endured enough inside-the-Beltway self-obsession? All this would do is entertain the partisans and the news-cycle junkies, while everyone else wonders when Congress will get back to doing its job.

McConnell, one suspects, is wiser than to take this advice, and likely so is Lindsey Graham, who has vented his spleen publicly but stepped very carefully at Judiciary. Graham has bigger fish to fry than Schiff anyway; he wants to take aim at the FBI and possibly intelligence agencies involved in Operation Crossfire Hurricane, not Adam Schiff, whose atrocious work speaks for itself. A quick dismissal and a renewed focus on FISA and the FBI’s surveillance of Carter Page would allow for a change of subject that, frankly, both parties need more than they realize.