by Jim Lewis
Is impeachment valid even though the speaker has not transmitted it to the Senate? Some argue that the Senate is not prohibited by the Constitution to start a trial, even if the articles of impeachment are not transmitted from the House to the Senate. But is this the correct view?
First, the Constitution does not lay out the specific rules each House of Congress must follow for impeaching someone, it only gives guidelines as to the responsibilities of each one. Each House has written their own rules as to the procedures they will follow in cases of impeachment.
Since the Constitution left to each House the responsibility for writing their own rules and procedures regarding impeachment, Article I, Sec. 5, cl. 2, US Constitution, says,
“Each House may determine the Rules of its Proceedings,…“
The question shouldn’t be ‘does the Constitution permit the Senate to start an impeachment trial without the House of Representatives communicating that articles have been passed,’ but instead, we should ask, ‘what do the House and Senate rules say about it?’
Here is what House Practice – A Guide to the Rules, Precedents, and Procedures of the House has to say on the subject. Chapter 27 addresses impeachment procedures – the discussion begins on page 603 of the Practice Guide. Page 618 says:
“Following adoption of the articles of impeachment, the House adopts resolutions appointing managers to present the articles before the Senate, notifying the Senate of the adoption of articles and appointment of managers, and authorizing the managers to prepare for and to conduct the trial in the Senate. Manual § 607…”
(“Manual § 607” refers to § 607 of the actual Rules of the House of Representatives. Section 607 is on page 325).
The House has impeached President Trump. The Rules of the House require the House to notify the Senate of the impeachment and the selection of the managers who are to present the articles before the Senate and conduct the trial in the Senate.
In Senate document 113-1, which is the Senate manual containing the standing rules, orders, laws and resolutions affecting the business of the US Senate, we can easily find what the Senate rules are.
On page 223 we find the Senate rules regarding impeachment, the procedures to be followed are described very clearly on this page in the first three sections entitled Rules Of Procedure And Practice In The Senate When Sitting On Impeachment Trials. In section I it says that the House of Representatives will notify the Senate that:
“…managers are appointed on their part to conduct an impeachment against any person and are directed to carry articles of impeachment to the Senate…”
“…the Secretary of the Senate shall immediately inform the House of Representatives that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment…”
Section II on page 223 then says that:
“…the managers of an impeachment shall be introduced at the bar of the Senate and shall signify that they are ready to exhibit articles of impeachment against any person…”
Then it says that:
“…the articles shall be exhibited, and then the Presiding Officer of the Senate shall inform the managers (of the impeachment) that the Senate will take proper order on the subject of the impeachment, of which due notice shall be given to the House of Representatives…”
Finally section III says:
“…Upon such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered…”
The Constitution is silent because it leaves it to each chamber of Congress to write their rules on how an impeachment should proceed.
Upon reading these rules we see that the Senate must wait for the House to tell it that their managers are ready to present the articles of impeachment, then the Senate will inform the House they are ready to receive the managers. The articles will then be presented to the Senate, the presiding officer of the Senate will tell the House managers that the Senate trial will proceed.
The trial will proceed, every day except Sunday, until the “…final judgment shall be rendered…”.
Always check the Rules – particularly those expressly authorized by the Constitution.
To summarize, the Senate cannot go to trial without the House presenting the articles of impeachment first, unless they change their own rules.