Rumblings of Resistance and Impeachment have been heard and felt since President Trump won the 2016 Election- Before taking the reins of government or having even been provided an opportunity to commit a “high crime or misdemeanor”. To those seeking to overturn the election, that matters little. What they are looking for are results.
That brings us to the most interesting development in the Trump Impeachment saga: Why would Speaker Pelosi force a rushed passage of the two articles of impeachment, only to now hold on to them instead of sending them to the Senate for trial? The reasons are a matter of conjecture, but speculations include holding the articles as a “trump” card in the event that the President wins re-election next year, while the makeup of the Senate shifts enough to get a conviction. At a minimum, holding them frustrates the President from being exonerated in the Senate, and keeps the branding of having been “Impeached” intact, which is useful strategically for the 2020 campaign. Speaker Pelosi herself has maintained that she is waiting for a guarantee of a “fair trial” in the Senate.
Whatever the real motivation in Speaker Pelosi’s heart may be, the mandates of the Constitution are ambiguous in some respects, clear in others. Article 1, Section 2, states “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.” While Section 3, states “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present” followed by Clause 7 “Judgement in Cases of Impeachment shall not extend further than to removal from Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Finally, Article 2, Section 4 “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” There is nothing stated about the timeline required for transmission of articles of impeachment from the House to the Senate. The extra-constitutional move to hold the articles of impeachment effectively creates a “Pocket Veto”, which is certainly a power neither enumerated (to the Speaker, or anyone for that matter) or precedented.
Lack of language in the Constitution framing a specific timeline is not the end of the story, however. The right to a speedy trial as guaranteed by the 6th Amendment attaches at indictment (see Betterman v. Montana, 2016), in this scenario the adopting of the articles of impeachment by the House. According to the Supreme Court ruling in Barker v. Wingo (1972), a breech of the right to a speedy trial has occurred if it is delayed for too long. The test from Barker has four parts: 1. Length of Delay 2. Reason for Delay 3. Defendant Asserting this Right 4. Nature of the Harm Caused by the Delay. It is an easy argument to make that delaying the Senate trial for political purposes is not in the interest of Justice, nor supportive of the right of the accused to a fair trial. The President could ask the Judiciary for a Writ of Mandamus against Speaker Pelosi, essentially a court order instructing her to complete duties she is already obligated to carry out, in this case transmitting the articles of impeachment to the Senate for trial. A similar approach was used in Marbury v. Madison (1803) to get the case into court. From there, the Judicial Branch could apply the Barker test, and force the Speaker to deliver the articles. With the case in the hands of the Senate, the body could follow two courses of action: 1-follow the Barker rule and dismiss the case, or 2- hold the trial.
The workings of the Senate as the trier of fact in Impeachment proceedings was established during the Johnson Impeachment, the first Presidential impeachment trail ever held. The first question before the body was also a very critical one: does the Senate act as a political body, or a sitting court? If a regular court, then they would be bound by legal rules of evidence and courtroom proceedings. Acting as a sitting court also implied that the President could only be convicted of a specific Constitutional, common law, or federal statute violation. They would not be acting rightly, to convict the President as simply an enemy of Congress. The Defense argued in favor of the strictly judicial role of the Senate, the Prosecution argued that besides the accepted bounds of a trial court, the Senate could rule on “action against the public interest” a much lower and less defined threshold. The Senate voted 31-19 in favor of the narrower, strictly judicial role of the Senate. This meant that the Chief Justice of the Supreme Court would preside, and the Senators would sit as associate justices. The trial on all eleven articles of impeachment against President Johnson ended in a 35-19 vote, one vote shy of the 2/3rd required to convict.
If Speaker Pelosi is looking for a “Fair Trial” in the Senate, she must be looking outside of this precedent. The charges in the articles currently being withheld from the Senate are vaguely worded and lacking in much standing based on the Johnson precedent. The time to end this partisan maneuvering is now. The American People deserve a resolution to this temper-tantrum, Congress and the President should be working for us, not squabbling with each other in a colossal waste of time and treasure. Let the Legislature do its job, Mrs. Pelosi, and get back to work for the American People.