If Senate Majority Leader Mitch McConnell follows through on his desire to hold an abbreviated impeachment trial without witnesses - as many in his party would prefer - he will be testing the limits of the impeachment trial clause of the Constitution. Minority Leader Chuck Schumer has declared that a trial without witnesses (or perhaps even any documents) would amount to "a coverup." Worries about a rubber-stamp trial are one reason House Speaker Nancy Pelosi has delayed submitting the articles of impeachment.
If such a sham trial comes to pass, is there any remedy? In fact, there is a stronger case than many think that the Supreme Court has the power to review impeachment trials, to ensure that Senate procedures meet a basic level of fairness.
The only Supreme Court decision addressing the Senate impeachment trial clause is Nixon v. United States (1993) - which has nothing to do with Richard Nixon. When Walter Nixon, a federal judge in Mississippi,was impeached in 1989 and removed from office, he sued the United States, the Secretary of State and the Administrative Office of the U.S. Courts, arguing that the Senate had not conducted a proper "trial" as required by the Constitution.
The court, with Chief Justice William Rehnquist writing for the majority, ruled against him. It concluded that how the Senate conducted impeachment trials was essentially a political question, because the Constitution gives that body the "sole power" to try impeached officials. That meant the dispute was, in the legal jargon, "nonjusticiable." But other justices - namely Byron White, Harry Blackmun and David Souter - argued that, while Nixon deserved to lose, it was possible that one day the Senate would conduct such an unfair impeachment trial that the courts would be obliged to hear a case if an aggrieved party sought a judicial remedy. That's precisely the situation we may face today.
In the events that led to his impeachment, Nixon was convicted of crimes (two counts of making false statements to a grand jury, related to an attempt to interfere in the investigation of a friend's son) and sentenced to prison. But he refused to resignand continued to collect his judicial salary behind bars. The House therefore impeached Nixon and sent articles to the Senate to conduct a trial.
Under rules established by the Senate to handle impeachments, Nixon's case was referred to a committee of senators to "receive evidence and take testimony." After four daysof hearings and 10 witnesses, the committee presented the full Senate with a transcript of its proceedings and a report. The House managers and Nixon submitted briefs to the full Senate; after oral arguments from the Senate floor, a personal appeal from Nixon and questions from several senators, the full Senate voted to remove him from office. He appealed, claiming that the Senate had not really "tried" him: Delegating so much work to a small committee was a shirking of its duty, he argued, and not what the founders had intended.
At the Supreme Court, the vote against Nixon was 9-0. But White and Souter filed concurring opinions (Blackmun joined White's) that contemporary courts might draw on, should the Senate vote, after a trial that's clearly perfunctory, to keep Trump in office.
As the court noted in Nixon, the Constitution lays out several indispensable elements of an impeachment trial: The Senate "shall be on Oath or Affirmation"; if it's the president who's on trial, "the Chief Justice shall preside"; and conviction requires a two-thirds majority of the members present. Beyond this, the terms of how the Senate tries an impeachment are left to its discretion.
But there are surely limits, White, Blackmun and Souter argued. What if the trial were manifestly bogus? The issue had come up in the oral argument for the case. White asked the solicitor general (Kenneth Starr, as it happens) if, after the House sent over articles of impeachment, the Senate could, "without any procedure whatsoever," unanimously find the accused guilty on the grounds that he was "a bad guy." The government replied that, yes, the Senate indeed had that latitude.
That answer troubled several justices. While conceding that it was "extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges,"White wrote, the scenario was hardly unimaginable - and would provide grounds for judicial review. "Were the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House it is quite clear that the Senate will have failed to 'try' impeachments," White wrote
If the Senate were to convict "upon a coin-toss," Justice Souter added, "or upon a summary determination that an officer of the United States was simply 'a bad guy,' judicial interference might well be appropriate."
"In such circumstances," he wrote, "the Senate's action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence."
McConnell has said he does not intend to be impartial - and in fact will work, lockstep, with the White House during the trial. That would violate his oath to "do impartial justice according to the Constitution and laws." If he dispenses with witnesses and speedily steers the outcome to the one desired by the White House, that would reduce the Senate proceeding to the kind of "summary determination" that the three justices warned about. Collectively, such actions could be seen by reasonable judges as "seriously threatening the integrity of the results" - the standard Souter suggested should trigger judicial review.
Since the Constitution grants the chief justice the privilege of presiding over the trial, he ought to have - and in my view does have, under proper constitutional interpretation - considerable power to steer the Senate toward reasonable standards for weighing evidence and rendering judgments. He cannot and should not be a potted plant. The current Senate rules, however, reduce the chief justice's role to one of subservience and ceremony; even his rulings on admissibility of evidence can be overridden by the Senate. That cannot possibly be what the founders intended.
Yes, the founders provided that the House would have "sole power" over impeachments and the Senate "sole power" over trials of impeachment. But the Constitution also grants "all legislative powers" to the House and Senate, and still the Supreme Court exercises routine judicial review over laws. If McConnell and his Republican colleagues insist on setting rules that turn the trial into a farce, then the matter would be ripe for judicial review, as outlined by the various justices in Nixon v. United States. The House - through the Speaker or the impeachment managers - could take the matter to court.
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Robenalt is a lawyer and the author of four nonfiction books, including "January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever." He lectures nationally with John Dean on legal ethics.