Inquiry about the Precedent to Skip an Impeachment Trial

The US Senate, run by the Democrats, from what I can tell, skipped the impeachment trial of Homeland Security Secretary Alejandro Mayorkas.

I was looking over Article 1, Section 3, of the Constitution, and the relevant part reads:

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."​

Is there any precedent for this? Did Chief Justice John Roberts ever make it to the Senate to oversee the process? How is the act of effectively skipping the trial supported by the language of the Constitution? If the Senate did not fulfill its constitutional obligation, is there any check mechanism that another branch, such as the Judicial Branch has, to intervene?

 

Mayorkas is not the President of the United States.

 

Thank you for answering the part about the Chief Justice not being there, Mayorkas not being the president. But what is the precedent for not having the trial? When William Worth Belknap was impeached, President pro tempore Thomas W. Ferry presided, and there was an impeachment trial. Is there any precedent for simply skipping the trial?

 

There are many precedents in our system in which the judges throw away the case because of lack of merits. Having said that, I am VERY concerned that this would happen. Evidently there is lack of merits: the accusation was political nonsense. But, even then, the process should be respected.

 

""ignoring its constitutional duty to hold a trial.""

https://mikejohnson.house.gov/news/documentsingle.aspx?DocumentID=1379
House GOP Leadership Statement on Senate Ignoring Constitutional Duty to Hold Mayorkas Impeachment Trial
Washington, April 17, 2024
WASHINGTON — Today, Speaker Johnson, Leader Scalise, Whip Emmer, and Chairwoman Stefanik released the following statement after the Democrat-led Senate voted to dismiss the articles of impeachment brought against Department of Homeland Security Secretary Alejandro Mayorkas, ignoring its constitutional duty to hold a trial.

“By voting unanimously to bypass their constitutional responsibility, every single Senate Democrat has issued their full endorsement of the Biden Administration’s dangerous open border policies. Secretary Mayorkas alongside President Biden has used nearly every tool at his disposal to engineer the greatest humanitarian and national security catastrophe at our borders in American history.

“Tragically, Senate Democrats don’t believe this catastrophe merits their time or a discussion on the Senate floor. Instead, they’re signaling to millions demanding accountability that the cabinet official directly responsible for this disaster – who has ignored the law and misled Congress repeatedly – is above reproach. The American people will hold Senate Democrats accountable for this shameful display.”

 

The House had no evidence. Period!

 

I did not see a precedent for this either, but perhaps I was not looking enough, which is why I asked. It appears that you believe that a trial should have happened? Is that correct?

 

The Chief Justice presides over an impeachment trial only in the case of the president. For all others it is strictly the Senate by itself that conducts the trial and it can do that pretty much however it pleases them..

 

We have "millions" of evidence.... and the ignorance of the people here who do not know what the implications are, of an example, of 25k (we know of) military aged healthy Chinese men invading our country... is just mind boggling.. WAKE UP AMERICA.... they are amongst us... and YES The House has more than enough evidence.

 

Per Article 1, Section 3:

"The Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."​

In the language, it says that the party is "liable and subject to . . . Trial." Where is the constitutional language that supports the mechanism by which to skip it? There also is no precedent, it appears, for skipping the trial. Should this be the new norm, now that a new precedent has been established?

 

Not an easy answer....

I think the impeachment should never have happened in the first place. Disagreeing with a policy is not grounds for impeachment. Impeachment is about abuse of power for personal benefit. Such as using your power to pressure a foreign leader to find dirt on your political opponent to win an election, or inciting an insurrection to remain in power.

The impeachment itself made a mockery of the whole constitutional process. However, what little could be salvaged MIGHT have been saved by going through the whole process.

However, I'm torn. It will be hard for us to rid our minds of the image of Marge Taylor as an Impeachment Manager when we see a SERIOUS impeachment trial. I mean, if a crazy nut like that is an Impeachment Manager, even the QAnon Shaman could be an Impeachment manager.

I guess that was the purpose of all this: To project the image that ANYBODY could be impeached for no reason, and that way try to water down the fact that Trump was impeached for REAL and SERIOUS High Crimes and Misdemeanors that were proven, as was admitted by even many of those who voted for him not to be removed.

However, I am concerned as to how we are going to recover the seriousness of the Impeachment process after this. And I think that going through the process might have salvaged it a bit better.

 

SCOTUS won't intervene. We can intervene by not re-electing them. The Senate needs greater accountability, I'd like to see a Constitutional amendment provides the State Legislature the power to recall their Senator on a majority vote.

As for precedent, well, there is now. And this will likely put the brakes on impeachments that do not have the support of at least a majority of the Senate.

 

That's not an impeachable offense, no matter how you try to shoehorn it.

 

It seems you are conflating an impeachment trial with a criminal trial which might or might happen after the federal officer, including a president, is found guilty of impeachment charges from the House. An impeachment trial is entirely up to the Senate and they can skip it if they wish, although in the case of a president the chief justice would have authority over that I presume. After declared guilty of the impeachment and removed from office, then the department of justice decides what if anything they will prosecute, and, if they can get an indictment, bring the impeached to trial in a criminal court.

 

Just like the framers set it up in the Constitution.

 

Ignoring, especially abetting, a foreign invasion is certainly impeachable.

 

Well, similar. The Constitution originally gave the State Legislatures the power to appoint the Senator and the Senate was supposed to be the State House of Congress and the House the People's House, but State Legislatures often deadlocked and could not select a Senator, so when unrepresented, and eagerly surrendered this power to the State wide electorate. I've studied the ratification arguments and there is little note of the fact that the State Legislatures were giving away their House of Congress. This has had a terribly debilitating effect on State rights vs Federal rights as State Legislatures would extract guarantees from nominees that as they handled the appointments clause that fills the Judiciary and the Presidential cabinet that they would make sure that they were selecting strong proponents of states rights, and if they failed, they could easily become a one term Senator.

Now Senators can ignore phone calls from State Legislatures because as long as they are strongly supported by the party, they are likely to be re-elected.

I think that an amendment granting the State Legislature the power to recall their Senator would help re-establish State Legislative control of the States legislature, which is the original design of the framers, just in a manner that assures that a senate seat will not go unfilled.

 

Can you name the commander or head of state leading the invasion?

And Biden is not the answer to that question, so don't even shove that BS.

 

Perhaps I am confusing an impeachment trial with a criminal trial. Perhaps, then, you can enlighten me. May you please provide me where in the Constitution the Senate is allowed to skip the trial? Is there any precedent for skipping the trial? Although the Constitution does empower the Senate to conduct the latter part of the impeachment process, does it not set up parameters in which the US Senate can conduct itself? Or is senatorial capriciousness allowed? If the latter, do you see why that is dangerous in a precedent-based system, like ours?

 

The Constitution states simply, "The Senate shall have the sole power to try all impeachments." Period. That obviously means they have the authority to not try an impeachment. One hook in that is the impeachment of a president where the Chief Justice is in charge of the Senate and could overrule the Senate's decision to not conduct a trial (which would be in reality a decision of the vice president and/or the majority leader.) I don't think this poses any danger to our system. I would label the Senate deciding not to try an impeachment serious, not capricious. There isn't any precedent mainly because there has been only four presidential impeachments.

 

But there is more to Article 1, Section 3, than just that sentence. There are parameters that qualify the process, including this paragraph:

"Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law [emphasis added]."​

If the Senate can do whatever it wants--at least within the context of trying an impeachment--then why didn't the framers just limit Article 1, Section 3, to the first sentence that you cite:

"The Senate shall have the sole power to try all impeachments."​

If Article 1, Section 3, was that sentence, and holding the trial was simply a matter of precedent and common agreement for the sake of tradition, but not binding in any way, then, yes, I would agree that skipping the trial is well within the constitutional purview.

It appears to be superfluous to have the remaining parts if they are purely, as you appear to be arguing, optional. Would you say that the rest of Article 1, Section 3, is simply a guideline for the process and not mandated parameters of the process?

If the Senate has the right to decide which parts of the process it wants to abide by, then what is the limiting principle? What prevents the Senate, in your argument, from deciding that the president himself gets to decide which U.S. Senator gets to vote, and, if the president does not like how that U.S. Senator votes, then he can decide to overrule that vote and choose another U.S. Senator, if the Senate allows the president to intervene? Tell me how your logic precludes that. I am interested.

 

No, the rest of the section says nothing about the process of trying an impeachment. It does limit what penalty the Senate can impose if found guilty, and that is the only penalty it can impose is removal from office and a bar from holding office in the future if they so decide. The rest of the section simply states what someone else can do about any criminal action the president may have done. The Senate cannot do anything else but the department of justice can. At the same token the department of justice can not indict, try, or convict a sitting president for any crime.

The Senate can ask what the president wants and if he says he does not want to be impeached the Senate can agree not to try the impeachment. But the Senate cannot give the authority to decide which senators can or cannot vote, and that is a period, not connected with an impeachment trail. The Senate cannot decide which parts of the process it wants to abide by simply because there are no parts; it is just one big process and they can handle it any way they want, although they are limited in the penalty they can impose.

 

You say that there are no parts of the process. What do you mean by that? In Article 1, Section 3, it reads:

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."​

There does appear to be parts of the impeachment process, including:

1. The process must be done on oath of affirmation.

(This was done with Mayorkas' impeachment. Per PBS:

"Once the senators were sworn in on Wednesday, the chamber turned into the court of impeachment, with Democratic Sen. Patty Murray of Washington presiding. Murray is the president pro tempore of the Senate, or the senior-most member of the majority party who sits in for the vice president. Senators approached the front of the Senate in groups of four to sign an oath book that is stored in the National Archives. [emphasis added]"
​

So, the part about the oath is a part, and it was carried out. It was abided by. It is a part of the process.)
​

2. If it is the president who is being impeached, the Chief Justice presides.

(In this case, since the president was not being impeached, the Senate has the flexibility outside constitutional parameters to choose that individual, and it chooses the president pro tempore of the Senate.

This part, I agree, can be skipped. In fact, it would appear that one needs to preside if the president is not impeached, as that is not spelled out in the Constitution.)
​

3. The indictment.

(Mayorkas was indicted. Thus, he was impeached. This part was abided by.)
​

4. Trial

(This was skipped. Thus, this was not abided by.)
​

5. Judgment.

(The Senate voted to dismiss both articles of impeachment. This part was abided by.)​

So, what do you mean there are no parts? Does there need to be an oath taken? Does anyone need to preside over the trial, especially if the president is not being impeached? Does there need to be a judgment, or can the Senate simply table the impeachment and continue with business as usual? Again, what is the limiting principle? What are the constraints?

 

When people say there are parts to a process that is normally in the context that someone can select which parts to follow or not. At least that is how you presented it. There are pieces (parts) to the impeachment process as delineated in the Constitution, but the Senate cannot pick and choose which parts to follow or not. They have to do them all, but in any manner they choose. The Senate has the sole power to try an impeachment, but the Constitution dos not say it must try an impeachment. In the Mayorkas impeachment the Senate did take an oath of affirmation as the Constitution calls for in an impeachment trial, although IMO if the Senate had decided to not try they would have not had to take the oath. They can still not conduct a trial or they could conduct a trial and simply not call any witnesses and gavel him not guilty. (All a bit odd but possible.)

There is always someone presiding over the Senate. Constitutionally it is the VP but there is always someone appointed or elected to be president of the Senate pro tem. That persons presides whenever the VP is absent over everything in the Senate except the impeachment of a president when the Constitution calls for the Chief Justice to preside. Outside of that the Senate cannot appoint any Senator they want to preside over an impeachment unless they know the VP will be away and they can appoint/elect a different president pro tem.

Hope this helps. We're really getting into the weeds here.

I might be wrong but I don't think Mayorkas was ever indicted for anything. Unlike the president he can be indicted without any impeachment, but I don't think he ever was.

 

I agree with some parts of your argument, and this has been a process of erudition, of which I am thankful. When the Republicans eventually win the Senate, and the Democrats impeach the Republican president, I do hope that the Republicans take advantage of this precedent set by Democrats and not conduct a trial. For goodness sakes, they impeached Trump both times by pure interpretation with their trademark mindset of loose constructionism: in the first impeachment, they said that Trump threatened to withhold funds from Ukraine, even though that is mentioned nowhere in the transcript; in the second impeachment, they said he incited a riot, even though he never did: he literally told the crowd to act "peacefully and patriotically." For both, according to Democrats, you had to read between the lines. Just like the so-called penumbra of abortion rights, it was there, you just had to find it, supposedly.