How the Senate Should Handle Impeachment

When Senate Republicans drafted a resolution condemning the House for hearing witness testimony behind closed doors while excluding Republicans in violation of the President’s Due Process rights, beyond the scrutiny of cross examination and the rules of evidence, and then demanded the House conduct a formal vote and provide Due Process protections as well as minority participation, cheers rang out among rank and file Republicans:  Senate Republicans finally threw away their tiddlywinks and actually stepped things up by bringing a knife to the Democrats’ gun fight!  Not unsurprisingly, the positive yields from punching back versus simply taking it have been immediate with Speaker Nancy Pelosi feeling so backed into a corner that she has been forced to formalize the impeachment process in her own resolution, set to be voted on this week. All this in a matter of hours. 

But a knife at a gun fight won’t cut it.  It’s time for Senate Republicans to take this one step further and launch a pre-emptive strike that will nuke anything the House does.  This is, after all, political war and we are fighting for our very survival.       

The Constitution is very clear.  “The Senate shall have the sole Power to try all Impeachments.”  Any such trial shall be under “Oath and Affirmation.”  If it involves the President, “the Chief Justice shall preside” and conviction requires 2/3 of the members present.  That’s about it.  The Constitution and existing law have precious little to say about the actual Senate trial, if and how it should take place. 

The Senate is a check on the People’s House run amok -- quite literally a last stand against the barbarian mobs frothing at the gate.  What we are witnessing today with the Democrats intent on crafting from whole cloth some kind of tenuous basis for Trump’s impeachment, is just that.  And so Senate Republicans have to go on offense.  They have to be keen, strategic, and creative.  Think of it as our D-Day.

The Senate clearly has jurisdiction to conduct a trial and remove the President, but is by no means constitutionally mandated, or even obligated, to conduct a trial. Like any court, the Senate has broad discretion in deciding whether or not to hear a case, and courts have a multitude of reasons to dismiss a case -- among others, a failure to state a claim, no facts at issue, frivolous claims, and on and on.   

The Senate should change its rules or enact new rules establishing that it will summarily dismiss any impeachment from the House and not hold a trial, when that impeachment is based on any of the following: partisan politics (this can be proven since impeachment has been their clarion call since Election Night 2016);  conduct that falls squarely within the executive’s constitutionally-enumerated powers (among others, the executive’s ability to conduct foreign and national security policy, to protect the homeland, and to fully execute the laws of the United States, including investigating and prosecuting corruption carried out by citizens); hearsay evidence and any other evidence that would be inadmissible under the Federal Rules of Evidence; information protected by executive privilege or that is classified; evidence that has been obtained in violation of the accused’s constitutional guarantees or any other laws; or evidence that was illegally obtained. 

The Constitution states that the President shall be “removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  That requires that a trial take place, but if the Senate determines, in accordance with Senate rules, that there are no grounds for a trial, it’s hard to see a reason why the Senate cannot “throw out” the impeachment.  

Gutsy? You bet.  Likely to rile up the Dems?  Don’t care.  Effective?  Damn right. 

Changing existing senate rules or enacting new ones might require deploying Harry Reid’s 2013 nuclear option which allows the Senate to close debate with a simple majority (51 votes) versus 60, or the 67 votes required to amend a Senate rule.  

Republicans don’t have 60 votes but can easily meet the 51-vote threshold as long as they employ  Nancy Pelosi-style tactics to muscle every Republican senator to vote with the pack.  They will have to pressure Republicans who threaten to stray with losing committee appointments or chairmanships they might have or want.  They must be made to understand that any legislation they might propose will fall on deaf ears and that the NRSC will withhold funding for their re-election bids and support primary challenges instead.  If some pansy like Romney or Collins insists on voting his or her conscience, they should be pressed by every other Republican to, at the very least, not show up on vote day (remember:  the Constitution requires 2/3 of the members present).

Sure.  The Dems and the press will blow up, but the fact is, we have Harry Reid and Nancy Pelosi to thank for paving the way, including the broad discretion to act:  Pelosi has said she can do what she wants because the Constitution doesn’t speak to any details the House must follow regarding impeachment.  The same can be said with respect to the Senate regarding trial and removal. 

If Republicans remain reluctant to act because they fear how the liberal public, the Dems, or the media will respond, then they really aren’t living in reality.  We’ve already lost the public perception game.  We don’t have the media, Hollywood, or the educational system in our court.   We don’t have much left as Republicans.  Donald Trump and his unyielding devotion to punching back on our behalf is our last best hope.  When he goes -- whether through removal due to impeachment or the 2020 election -- the GOP is dead.  It could be decades before conservatives have a viable party and by then, the damage will be catastrophic. 

For once, before it’s too late, let’s outsmart the smarty pants on the left. 

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