Impeachment Rules Say Senate Must Act, but Its Act Might Be a Swift Dismissal

WASHINGTON — Senator Mitch McConnell’s comment this week that the Senate would be forced to “take up” articles of impeachment from the House had the capital in a swirl, bracing for a full-blown Senate trial of President Trump. But as things now stand, any trial would likely be swift, ending in dismissal of the accusations.

While the focus was on the statement by Mr. McConnell, the majority leader, that the Senate would have “no choice” but to begin an impeachment proceeding, it was his next line that might have been more telling: “How long you are on it is a whole different matter.”

The fusty rules of the Senate make clear that Republicans could not unilaterally stonewall articles of impeachment of Mr. Trump as they did the Supreme Court nomination of Merrick B. Garland. But Mr. McConnell’s declaration suggests the Republican-controlled Senate could move expeditiously to toss them out if Republicans conclude the House impeachment is meritless, or a strictly partisan affair.

“I don’t think they could just duck it,” said Donald A. Ritchie, historian emeritus of the Senate. “It is a constitutional responsibility. When you look at the weight of history, I think they would feel they have to do something. They would have to decide how abbreviated they wanted to make it.”

Judging by the initial Senate Republican response to Speaker Nancy Pelosi’s decision to open an impeachment inquiry after a whistle-blower’s complaint detailed Mr. Trump’s pressuring of the leader of Ukraine to investigate a political rival, Republicans would want it to be quite short. Nearly all Senate Republicans have scoffed at the idea of an impeachment vote in the House, let alone a conviction in the Senate that would force Mr. Trump’s removal from office. That could conceivably change, of course, if new damaging information emerged.

But as both parties begin to quietly explore their strategic response to potential House action, they are zeroing in on the 1999 Senate impeachment trial of President Bill Clinton for guidance, and that proceeding provides one obvious precedent Republicans could embrace.

As the trial threatened to gain steam after the Senate had heard from Republican House managers of the impeachment and Mr. Clinton’s defenders, Senator Robert C. Byrd, a West Virginia Democrat and the highly regarded conscience of the Senate who had said the Bible and Constitution would be his guide, moved to dismiss the entire case. Democrats were in the minority at the time, and Mr. Byrd’s surprise proposal was defeated along party lines, forcing the trial to move forward for a total of about five weeks before Mr. Clinton prevailed.

But in the case of Mr. Trump, his party controls the Senate, and it is not a stretch to envision Republicans providing the votes to throw out the articles, short-circuiting the process and sparing Mr. Trump an extended examination of his conduct.

Senate Republicans essentially laid out that scenario in background guidance circulated over the weekend, noting that a motion to dismiss the articles would be allowed under impeachment rules, and that such a vote took place during the Clinton trial after opening arguments and limited questioning by senators.

The tactic looms as a delicate proposition for Mr. McConnell and his Republican colleagues. First, they must mollify a mercurial president and Republican voters who will no doubt be incensed at the very idea of a Senate trial giving credence to the accusations that Mr. Trump improperly sought foreign help against a political rival. At the same time, they would need to demonstrate to the public that the Senate was taking its constitutional responsibilities seriously and not dismissing the House action out of hand.

In either regard, it would represent another tough vote for vulnerable Senate Republicans up for re-election in 2020, who would again have to choose between potentially alienating independents by siding with the president or angering the pro-Trump faction that dominates their party. It could also represent a risky vote for Democrats seeking re-election in swing states such as Michigan.

Democrats say they would keep the pressure on Republicans to make sure that the process for considering articles of impeachment against the president is equitable to both sides.

“If the impeachment process reaches the upper chamber, each and every Senate Republican will have the awesome responsibility of putting country over party and ensuring Leader McConnell allows a fair trial,” Senator Chuck Schumer of New York, the Democratic leader, said in a statement on Tuesday.

Mr. McConnell had other reasons to get out in front of questions about how he would handle impeachment. He needed to fend off what are certain to be demands from the president’s supporters to shut down the process or refuse to entertain the articles of impeachment even if it takes turning off the Senate lights and locking the doors. And to hold off those who demand another “nuclear option” to overturn the existing impeachment rules, Mr. McConnell also noted that it would require 67 votes to do so, not the simple majority vote both parties have used in recent years to reset Senate procedures.

That may have been a pre-emptive answer to Mr. Trump himself, who in times of frustration in the past, has sometimes criticized Mr. McConnell for being unwilling to use the “nuclear option” to circumvent rules that require 60 votes to advance most legislation.

Senate Republican officials say any discussion about how the Senate would proceed beyond Mr. McConnell’s statement is pure speculation, with the response dependent on how the House conducts itself and what is ultimately included in any impeachment claim.

In 1999, the two parties wrangled over how to conduct the first presidential impeachment trial in more than a century, but an all-senators meeting in the Old Senate Chamber in the Capitol resulted in a remarkable conclusion: unanimous agreement on the ground rules. That level of consensus seems hard to imagine in the bitterly polarized Senate of today, just 20 years later.

The two parties’ Senate leaders at the time, Trent Lott, Republican of Mississippi, and Tom Daschle, Democrat of South Dakota, were determined to work together and avoid a spectacle. They were both certain of the ultimate outcome, but wanted the Senate to do its duty and look reasonable doing so.

“The senators took it remarkably seriously,” said Mr. Ritchie, the Senate historian. “The bottom line was the Senate didn’t want to look as foolish as the House had. All of the senators, regardless of party, really felt they needed to act with some dignity.”

How the Senate might act if the House impeaches in this case remains to be seen, but everyone now seems to agree that act it must — in one way or another.


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