When Is an Impeachment Not an Impeachment?

If a tree falls in the forest and no one is around to hear it, did the tree really fall?

If the House votes articles of impeachment and doesn’t transmit them to the Senate, is the President really impeached?  Can the Senate proceed to a trial without the House formally presenting articles of impeachment?

We start, as always, with the Constitution but, unfortunately in this case, the Constitution doesn’t take us very far.  Article I, Section 2 gives the House the sole power of impeachment.  Article I, Section 3 gives the Senate the sole power to try all impeachments.  Article II, Section 4 says the President and other civil officers of the U.S. “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  That’s pretty much it.  Impeachment is mentioned in a couple other places in the Constitution not relevant to tonight’s discussion. 

So the Constitution is silent on the current situation where the House has voted to impeach but has, so far, refused to present the articles of impeachment to the Senate.  I’m sorry to have to tell you there is no clear answer to this quandary.  Legal experts disagree.

Some of the commentary has focused on House and Senate rules.  The Senate adopted its current impeachment rules in 1986. Rule 1 says the Senate impeachment process begins after the House appoints managers to carry the articles of impeachment to the Senate.  Rule 3 says the Senate trial generally begins the day after the House formally presents articles of impeachment to the Senate.  

Could the Senate change its rules and proceed now?  After all, none of these steps are set forth in the text of the Constitution.  One argument is that the Constitution gives the House the sole power of impeachment and this implies it includes the power to specify when the act is final.  The counter-argument is that all of this puts form over substance and the Constitution does not require formal presentment.  The Senate has the sole power to try impeachments and therefore has the power to decide when and how that happens.  

If the Senate changed its rules, there would be a constitutional impasse.  The Senate would say the President has been impeached and the House would say no, he has not.  It’s not clear the courts would have any business wading in.  Article I, Section 5 of the Constitution says each house of Congress may determine its own rules.  If the courts do wade in, another question would be whether Supreme Court Chief Justice John Roberts would have to recuse himself since he would be presiding over any impeachment trial.  That could leave the Supreme Court deadlocked at 4-4 and no way out of the impasse.

I tell you folks, the November election can’t get here soon enough.