Seven months into Republican control of the House of Representatives, they are making noises about impeaching President Joe Biden. And Biden’s vanquished opponent is demanding it.
At a late July rally in Erie, Pennsylvania, former President Donald Trump said that any elected Republican who will not act against Biden “should be immediately primaried and get out.”
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That was not an idle threat, given that Trump endorsed challengers to any of the 10 House Republicans who voted for his second impeachment and ran for reelection. All but two of them, Reps. Dan Newhouse (R-WA) and David Valadao (R-CA), are out of Congress.
Several House Republicans have introduced impeachment resolutions for Biden, along with Homeland Security Secretary Alejandro Mayorkas, Attorney General Merrick Garland, and FBI Director Christopher Wray, among others. Impeachment efforts largely focus on the Biden administration’s U.S.-Mexico border and immigration policies, along with investigations of the president’s wayward son, Hunter Biden.
Congressional experts told the Washington Examiner that in matters of impeachment, the House proposes and the Senate, currently run by Majority Leader Chuck Schumer (D-NY), disposes. And that it disposes in any way it wishes.
In the early 1999 Senate removal trial for then-President Bill Clinton, the late Pennsylvania Republican Sen. Arlen Specter imported a concept from Scottish law to vote “not proven.” (The baffled Senate clerks recorded this as a normal vote against removal.) This illustrates the notion that the Senate feels no pressure to go along with the majority House verdict. After all, the GOP-led House had voted on Dec. 19, 1998, to impeach Clinton on charges of lying under oath and obstruction of justice in the Monica Lewinsky affair.
There is even some talk that the Senate could refuse to hold the trial in the case of a House presidential impeachment during this Congress. The congressional experts the Washington Examiner consulted were of different minds about how that would work out.
“Article I, Sections 2 and 3 [of the Constitution] establish the impeachment power, and nothing in the text prescribes a timeline for Senate action, or that the Senate must act at all,” Kevin Kosar, a political scientist at the American Enterprise Institute, told the Washington Examiner in an email. “But the rules of the Senate (p. 170 et seq) do require the chamber to start the process upon notification of the House. And past practice has been that the Senate does act once the House has voted to impeach.”
When Sen. Mitch McConnell (R-KY) was majority leader, for instance, he stated that the Senate would take up any vote to impeach President Donald Trump sent over to them by the House. The House was then controlled by a Democratic majority — inverse to the current situation, with the Senate in Democratic hands and Republicans holding the House.
How the majority chooses to act on impeachment is a different question, Kosar pointed out.
“Certainly, the majority Democrats will have sway over both whether and when to start the trial, and over aspects of its structure,” he said. “Presumably they will use that authority to shape the timing and duration of the proceedings to their benefit.”
Jeremy D. Mayer, a professor of political science at George Mason University, made the case that, legally, nothing could force the current Senate to take it up.
“The Constitution is vague on impeachment’s details, as in most things,” Mayer told the Washington Examiner. “But unlike, say, passing a law, impeachment has happened so rarely that there are not binding precedents for most matters. So yes, the Senate could choose to not hold a trial.”
Mayer added, “The Supreme Court has ruled, decades ago, that impeachment procedures are up to the Congress, and the courts are not going to intervene. There are Senate rules that say that an impeachment must begin the day after the House delivers an impeachment formally to the Senate, but the majority leader would have ways to get around that.”
In the event of a refusal to hold a Senate trial, Mayer said, “The only penalty that would fall on the Senate would be a political one — it might look bad to some independent voters that they didn’t even consider the evidence against Biden.”
He showed that the political blowback from holding or not holding a trial is hard to predict with certainty.
“We are so polarized right now that I’m not sure Schumer would pay a price for not holding a trial,” Mayer said. “On the other hand, the evidence so far is so flimsy, that holding a trial might hurt the Republicans more than the Democrats.”
Kosar argued a refusal to act on a House impeachment vote could also make it harder for the Senate to pass legislation or perform other routine tasks.
“Now, if Democrats did that, any Republican member could retaliate by tying up Senate action on other business, such as by exerting holds and refusing consent to move legislation,” Kosar said. “In view of that, Democrats would need to think long and hard about the cost of ignoring precedent.”
The Washington Examiner also asked about the “deterrent effect” of impeachment.
Congress has never successfully removed a president. Except in the case of the removal trial for President Andrew Johnson, it has never gotten especially close to the two-thirds vote necessary for removal. Will presidents be dissuaded from future actions if they don’t feel particularly threatened by the possibility of removal?
“Impeachment has been badly damaged by polarization, as have most checks on presidential power,” Mayer said. “It is almost impossible to imagine an act that President Trump could have taken that would have merited impeachment in the eyes of his supporters. And since his supporters make up the base of the GOP, anyone who support[ed] impeachment against him was risking the end of their political career. Democrats feel no such passion for Biden, but what they almost equal the Republicans in is their hatred for the other side. So they will rally to Biden unless evidence emerges of serious corruption, which I very much doubt is in the pipeline.”
Mayer added, “The two sides are not equally polarized; Democrats would turn on Biden if he were corrupt or dictatorial, whereas Republicans would put up with almost anything from Trump. But they are deeply polarized nonetheless.”
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Kosar hopes this isn’t the case.
“It would be a shame if the impeachment process devolved into nothing more than a partisan exercise,” he said. “A real downside of it would mean further aggrandizement of presidential power. In short, so long as power in Congress is split between the two parties, the president could do whatever he wants without fear of impeachment. That sort of scenario would have terrified the Founders.”
