Legal options when (and if) the articles of impeachment get to the Senate

Bradley A. Blakeman, former deputy assistant to President George W. Bush and an adjunct professor of public policy and international affairs at Georgetown University, argues that “there’s no requirement — or need — for an actual trial in the Senate.”

When (if?) the House Democrats finally hand over their two articles of impeachment — for abuse of power and obstruction of Congress — to the Republican-controlled Senate, Senate Majority Leader Mitch McConnell has at least five options, Blakeman explains. One of those options, he argues, is to simply dismiss the trial altogether.

“The Senate could entertain a motion by the president’s counsel to dismiss — before the start of a trial — both articles of impeachment, for failure to meet the constitutional threshold for stating a cause of action,” Blakeman writes. The decision would require only a simple majority vote (51) to pass because it is a procedural motion.

After detailing four other options, Blakeman lays out unequivocally where he stands:

“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.”

President Trump highlighted Blakeman’s “dismissal” argument in a pair of tweets Thursday morning, quoting Blakeman from an appearance on Fox News.

Citing Blakeman, Trump wrote: “I happen to believe as a lawyer that the charges are defective, they don’t meet the Constitutional standard of high crimes and misdemeanors, so I would like to see a Motion to Dismiss. At least 51 Republican Senators would agree with that — there should be no trial.”

“Nancy Pelosi has no leverage over the Senate,” Trump added in a follow-up tweet, again quoting Blakeman. “Mitch McConnell did not nose his way into the impeachment process in the House, and she has no standing in the Senate.”

Blakeman goes on to outline the other four options he maintains are available to Senate Republicans. If McConnell chooses not to dismiss the trial outright, he could begin the trial but (quickly) end it “whenever the Senate majority deems it has heard enough and calls for a vote.” Republicans would only need to be certain that impeachment does not have two-thirds approval, a near impossibility.

McConnell could also take the opposite approach, conducting a “full-blown trial,” deliberately dragging it out and calling a variety of witnesses “as long as the Senate majority feels doing so is in its interests.” This option, Blakeman predicts, would result in Supreme Court Chief Justice John Roberts being forced to intervene and issue “numerous rulings, some of which would be unpredictable in their outcomes.”

Another option: hold the trial but then vote for dismissal, a procedural motion requiring a simple majority.

Finally, Blakeman argues, Republicans could employ the “nuclear option”: “make a procedural motion to adjourn the start of a trial until Nov. 4, 2020,” allowing voters to decide Trump’s fate. That option also would only require a simple majority vote.

 

[From an article by James Barrett, published by SONS OF 1776]

 

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As always, posted for your edification and enlightenment by

NORM ‘n’ AL, Minneapolis
normal@usa1usa.com
612.239.0970

 

 

 

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