Sole Power

4 mins read

A few days ago, Senator Marsha Blackburn Tweeted one of the Republican talking points:

As an excuse not to call witnesses, Blackburn says that the “Senate’s job” is to review what the House sends to them from the impeachment inquiry.

The problem: That’s not how the Constitution defines the Senate’s job. It’s also not how the Senate rules define the Senate’s job.

Art. 1, Sec. 3 of the U.S. Constitution states that, “The Senate shall have the sole power to try all impeachments.”

“Sole power” means that nobody else should do the work for the Senate. The word “Try” may be a little trickier. Perhaps that’s the one giving some of the Republican Senators trouble.

Trial (a form of the word “try”) is what happens when a court acts as a fact finder to determine what happened. This is done by examining witnesses and documents. Definition:

Now let’s look at the Senate rules governing impeachment trials. Rule VI states that:

The rules clearly state that the Senate has the power to compel the attendance of witnesses. Now, why would the Senate have the power to subpoena witnesses if all of that was supposed to be done in the House?

Senators like Blackburn are deliberately blurring the distinction between investigation and trials. The House has the sole power of impeachment. From Article I, Sec. 3:

This means the House decides whether it sees fit to impeach the president. But the trial happens in the Senate.

Yesterday Trump released his answer to the Articles of Impeachment. He claimed that his advisors are “absolutely immune” from being compelled to testify:

If the president, in fact, has the authority to refuse to comply with document requests, and if all of his advisors have absolute immunity and can refuse to testify, what the heck are the impeachment and removal provisions doing in the Constitution?

Trump ordered the entire executive branch to refuse to comply with witness and document requests. He also called impeachment a “dangerous attack on the right of the people to choose their president” and an attempt to interfere in the next election:

If “impeachment” is a dangerous attack on elections, why was it included in the Constitution? Did the drafters of the Constitution make a HUGE mistake when they put into the constitution that the president can be impeached and tried? (Of course not. Sen. Blackburn and many of her Republican colleagues are deliberately distorting the Constitution and senate rules.)

Obviously, a trial has no meaning if the person on trial has the absolute right to order witnesses not to testify, and can release only those documents that he chooses to release.

The girl in the front row asked some very tricky questions.

Assume for a moment that the process in the House was rushed and unfair. The solution is to have a not-rushed and fair trial. “They didn’t do their job well, so we won’t do ours at all,” is nonsensical. I get what she’s doing, though.

Sen. Blackburn and her Republican colleagues know that if they call witnesses (like Bolton) it will be harder to lie and cover for Trump.

Our job is to make sure that persuadable voters understand what’s happening. (Don’t try to persuade cult members. You’ll wear out.)

Originally posted on Musing about Law, Books, and Politics.
Re-posted with permission.

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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