Impeachment – Getting a Motion To Dismiss With Only 50 Votes and No “Coverup”; A Dismissal By Roberts As Unconstitutional Would Provide Cover For Republicans
WASHINGTON, D.C. (January 16, 2020) – Several Republican senators have said that while many of them would like to avoid an impeachment trial, the Senate will not adopt a motion to dismiss the articles of impeachment, at least at the onset of the proceeding, because there may not be 51 votes to support such a measure, and such a move – especially before hearing any arguments or witnesses – might be seen as the “coverup” as Speaker Nancy Pelosi and others have suggested.
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But there are at least two possible scenarios under which the proceeding might be terminated without anything like a trial; one which would require fewer Republican votes, and where the GOP could largely avoid charges of a coverup to protect President Donald Trump, suggests public interest law professor John Banzhaf.
Indeed, as THE HILL reported in a piece yesterday entitled "McConnell Makes Case for Trump Acquittal Ahead of Trial," that may be what Senate Majority Leader is hoping for, or at least might not oppose. Here's how it could occur.
If Chief Justice John Roberts, who will preside over the proceeding, can be convinced that the articles are unconstitutional on any one of a variety of grounds which have been argued by a variety of experts - e.g., they do not even reference a single crime, much less a high crime or misdemeanor; the House's procedures allegedly violated Trump's Due Process rights and/or were otherwise unconstitutionally unfair; the evidence is too "wafer thin" (as Professor Jonathan Turley testified) to meet the standard of establishing probable cause to prosecute; etc. - he could follow the guidance of Alexander Hamilton and dismiss the proceedings on constitutional grounds.
Such a motion to Roberts for a dismissal might be made either at the very beginning of the proceeding (similar to a motion to dismiss which is based solely on the pleadings), or after the initial arguments and discussion by the House managers of the evidence to be presented (similar to a motion for summary judgment which considers the evidence to be presented).
Alexander Hamilton wrote in Federalist No. 78: "There is no position which depends on CLEARER PRINCIPLES, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, IS VOID. No legislative act, therefore, CONTRARY TO THE CONSTITUTION, can BE VALID." [emphasis added]
So, since a Senate trial arguably cannot proceed based upon articles of impeachment which are unconstitutionally void and not valid (in Hamilton's words), an argument can be made to Roberts that the proceeding must be adjourned as void ab initio ["to be treated as invalid from the outset"] without any trial.
Although any such ruling of dismissal could probably be appealed to the entire Senate, it would then require 51 votes to overturn it.
Arguably some senators who might themselves not favor dismissal at this early stage might not vote to reverse that decision, believing that the Constitutional provision mandating that "When the President of the United States is tried, the Chief Justice shall preside" authorizes Roberts to make rulings, especially on constitutional issues, which should always be accepted and upheld, or at very least be entitled to great deference by senators voting on whether to uphold them.
Indeed, several scholars have suggested that, by providing that the impeachment proceedings would be presided over by the Chief Justice, and not the Vice President which would otherwise be the case, the drafters meant to avoid conflicts of interest which would face the Vice President - conflicts which would occur only if the position was more than merely ceremonial, and his rulings were to be given great weight if not actually be controlling.
Motion to dismiss and Senate rules
Some have even suggested that, contrary to Senate rules, his rulings as presiding officer cannot be overruled by a mere vote of the Senate, since arguably the Constitution takes preference over Senate rules.
Other Republican senators who have previously indicated that they had hoped to avoid a trial might also vote not to reverse the Chief Justice's decision, not necessarily because they believe it is correct, or that his rulings deserve deference; but rather because it provides them and their colleagues with political cover since they could argue that they are simply following the Constitution as interpreted by the Chief Justice in his constitutional ruling.
Many Republican senators would also probably be reluctant to overturn such a dismissal ruling because they could see it as advantageous. Others, including those not seeking reelection, and those who plan to seek reelection - but only far in the future after these votes are likely to be forgotten or of little consequence - may not even need political cover to vote in a way which could help their party, and also help their Senate colleagues who might prefer this needed political cover.
Indeed, putting aside the legal strengths and weaknesses of any arguments about the effects of such a decision, a ruling by Roberts to dismiss the proceeding ab initio, before or after a discussion of the evidence, would produce a result which many might be seen as politically beneficial.
Such a dismissal ab initio, regardless of the legal justification, might please many Republican senators. and even the White House, since Trump could claim complete vindication, and then harangue the Democrats for trying to use an unconstitutional tactic to remove him from office.
It might also provide an easy way to deflect Trump's demand for a lengthy trial with many witnesses. although the President has recently suggested that he himself might favor a prompt dismissal.
Meanwhile, some Democratic senators may also be reluctant to reverse the Chief Justice's ruling because a dismissal would avoid an anticipated vote to acquit which could be seen as a major loss for the Democrats and vindicating the President.
A prompt dismissal could also be especially valuable for Democratic senators running for president who want to be out campaigning, and others in the party who want their eventual candidate to be able to have adequate time to campaign.
Moreover, an early dismissal might be seen as beneficial by Senators from both parties since it would avoid a trial which might prove time consuming as well as embarrassing, depending upon which witnesses are called.
It should be noted, Banzhaf says, that Republican Senator Rick Scott stated that he is prepared to vote to dismiss the case against Trump, and that he has joined with Senators Ted Cruz, Josh Hawley, and David Perdue in a resolution to allow a motion to dismiss articles of impeachment for lack of prosecution.
So it certainly seems that there may be significant Republican support for a dismissal of the proceedings, especially if GOP senators voting for it can blame it on the Chief Justice and avoid - or at least deflect - any criticism that they are facilitating a coverup.
After all, it would take a majority - 51 votes - to reverse any such ruling by the Chief Justice, notes Banzhaf.
Banzhaf played a role in forcing former president Richard Nixon from office, and he successfully sued former vice president Spiro Agnew after he was likewise forced to resign.