Can the U.S. Senate hold an impeachment trial if the House "passes" articles of impeachment but does not "transmit" them to the Senate?

After passing articles of impeachment against the President, Speaker Pelosi has announced she will not immediately send the articles of impeachment to the Senate for a trial. What does this actually mean? Can she prevent the Senate from taking up the articles by not sending them to the Senate? Is she required to do something else before the Senate can take up the matter? Why can't the Senate act without her? I don't understand what that actually means in this case. Can someone please help clarify?

8 Answers 8

Yes, the Senate can hold a trial, but they would have to change their rules first in order to do so.

There's no Constitutional requirement that the Articles of Impeachment be somehow "sent" to the Senate.

The only parts of the US Constitution regarding impeachment are Article I, Section 2, Paragraph 5:

5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

and Article I, Section 3, Paragraphs 6 and 7:

6: 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.

7: 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's nothing in the Constitution to stop the Senate from taking up the Articles of Impeachment the House has undeniably passed and holding a trial. And it's pretty much completely settled that the Senate has sole and unreviewable power to make up the rules for its own proceedings.

The current Senate rules do lay out a procedure that requires House participation, but the Senate is free to change those rules should they desire, and doing so would require a 2/3 majority vote per rule XXII.

And changing the rule via Rule XX's "nuclear option" would require a simple majority. (Though see comments for discussion.)

Note that while they can, I'd opine that it's almost certain that the Senate won't change their rules as there are likely at least a few Republican Senators who don't want to change Senate rules to force an impeachment trial, and almost certainly no Democrat nor independent would.

And the number of Republicans who would not vote for using the "nuclear option" of Rule XX is probably quite a bit higher than the few required to prevent any rule changes that way.

So I'd say the Senate can but won't.

"doing so would only require a majority vote"—no, it needs a supermajority. Rule XXII, section 2: "to amend the Senate rules… the necessary affirmative vote shall be two-thirds of the Senators present and voting".

@zibadawatimmy I understand that. My point is that unless the articles and their passage have been published in the journal, they effectively do not exist. For the senate to act on them, they must be a matter of public record (or formally transmitted to the senate by the house, of course, but that's out of the scope of this discussion). By "public record" I don't mean that they've been reported in the media, but that they are mentioned in some official record of the house's proceedings. That may already be the case; I do not know.

@phoog - Both the articles of impeachment and the votes have been recorded in the Congressional Record, available here.

@JustMe It is my understanding it would be, though it is a different situation, as previous invocations of the nuclear option were for changing cloture vote requirements, and this would not be a cloture vote issue. I don't see why it couldn't be used in exactly the same way, as Rule XX is vague enough that it seems like, if they let it be used this way on cloture, then it could be used that way for anything. But in a fairly precise sense, only the Senate can tell us.

@zibadawatimmy "It's a legally questionable rules-lawyering, but it's never been tested in court" I don't know if it could be; I think the Senate has complete reign over their own rules.

While the other answers address the legal issues better than I can, there’s some important context to this issue that is missing from the other answers which I’d like to discuss.

As everyone knows, the Impeachment process has 2 stages: first, the House writes and votes on Articles of Impeachment, then the Senate holds a trial on them. Since the Articles of Impeachment have been passed, the first stage is over, but before the trial can start, the Senate must first vote on the rules that will govern that trial. This is the stage we’re at now, and Speaker Pelosi’s gambit is part of the negotiations (which have been ongoing for some time) about what these rules will be.

The concern, of course, is that Senator McConnell will push through rules that would create a “kangaroo court” designed to assure Trump’s acquittal. For example, Schumer and McConnell have been clashing on whether to allow witnesses at the trial, with McConnell rejecting that and offering vague assurances that the issue could be revisited during the trial:

Senate Majority Leader Mitch McConnell on Tuesday rejected calls from Senate Minority Leader Chuck Schumer to allow witnesses at an expected Senate impeachment trial of President Donald Trump .

McConnell's rejection of Schumer's request does not mean the question of witnesses is settled. McConnell said the Senate should revisit the issue at some point in the middle of the trial, similarly to how it was handled in the Clinton impeachment trial.

McConnell rejects Schumer's call for witnesses at impeachment trial

Holding up the start of the Senate trial grants more time for these negotiations to play out, which Congressional Democrats clearly believe would be helpful for their case:

Senate Democrats are waging a pressure campaign to try get their GOP colleagues to break ranks on impeachment witnesses.

Absent a deal with Senate Majority Leader Mitch McConnell (R-Ky.), Democrats are expected to force floor votes on their requests for trial documents and witnesses, including acting White House chief of staff Mick Mulvaney and former national security adviser John Bolton.

Senate Minority Leader Charles Schumer (D-N.Y.), backed by members of his caucus, is working to put Republicans in a bind and drive a wedge between GOP leaders, who say they don’t want witnesses, and a handful of moderate and retiring senators viewed by Democrats as persuadable on procedure.

Schumer aims to drive wedge between Republicans on impeachment

So, while I think the answer by Just Me answers the legal question better than I can, I’d argue that it’s better to think of this as a political gambit that is almost certainly going to have a political resolution, rather than a legal one

[Speaker Pelosi] did not indicate that she was contemplating holding the articles forever.

Ms. Pelosi and Mr. Schumer were planning to meet later on Thursday morning to discuss their next steps.

While she did not say explicitly what she believes would constitute a fair trial, she indicated she would support the plan laid out by Mr. Schumer. “We’d like to see a trial where it’s up to the senators to make their own decisions and working together, hopefully, in recognition of witnesses that the president withheld from us, the documents that president withheld from us,” Ms. Pelosi said.

https://www.nytimes.com/2019/12/19/us/politics/impeachment-trump-senate-trial.html

In an interview on Thursday, Pelosi expanded on her thinking. She explicitly shot down the idea of an indefinite delay, and stated that she is waiting to declare impeachment managers until the Senate determines what the rules of the trial will be:

Pelosi, in a wide-ranging interview, said she can’t name impeachment managers — the House Democrats who will essentially serve as prosecutors in the Senate trial — until she knows the terms of the proceedings.

"We said what we’re going to say. When we see what they’ll do, we’ll know who and how [to appoint]," Pelosi said Thursday afternoon.

The terms will ultimately be set by Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Chuck Schumer (D-N.Y.). The two will need to reach an agreement on the parameters of the trial — including the time frame, witness testimony and obtaining documents — that will require 51 votes. Democrats have questioned the impartiality of the Senate trial after McConnell said he’s coordinating with the White House on strategy.

Pelosi blamed McConnell for the impasse, saying he was the one who wasn't abiding by precedent set during President Bill Clinton's impeachment trial in 1998.

"They had a bipartisan bill with 100 senators voting for it, that’s the precedent. That’s not what McConnell was saying," Pelosi told POLITICO. "But let’s give them the chance to do what they have to do over there. And so until they do, there’s really not that much to talk about."

In her weekly press conference earlier Thursday, Pelosi essentially dismissed the idea that she would hold onto the articles of impeachment indefinitely.

“We’re ready,” Pelosi told reporters Thursday about moving forward after the House impeached Trump, charging him with abuse of power and obstruction of Congress. “When we see the process that is set forth in the Senate, then we’ll know the number of managers that we may have to go forward and who we will choose."

Pelosi downplays threat to withhold impeachment articles from Senate

This answer gave the background information I was missing in order to fully understand current events (combined with the other two answers from Just Me and Machavity).

Major legal experts say transmission isn't necessary

Wouldn’t make sense. Constitution doesn’t mention transmission. And Supreme Court has said Senate has sole power to set trial rules. Senate could set a deadline for trial regardless. Or not. Senate and Trump probably don’t care. Either way, not a good look for the House Ds.

Thus, it can be done, but it's fraught with risk for both sides. Remember, each chamber sets its own rules in this process

The Senate itself is far from powerless in deciding how the trial proceeds. It has the explicit responsibility of directing “all necessary preparations” for the consideration of impeachment articles (Rule 7). And it can “compel the attendance of witnesses”; “enforce obedience to its orders, mandates, writs, precepts, and judgments”; “punish in a summary way contempts of, and disobedience to, its authority”; and “make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice” (Rule 6). As noted above, any member of the Senate can ask that a formal vote be taken on an evidentiary question put to the chief justice (Rule 7). And while the rule has never been used before in the trial of an impeached president, only judges, the presiding officer of the Senate may also appoint a subcommittee of senators to receive evidence and take testimony on its behalf (Rule 11).

There's nothing to stop the Senate from using the passed articles (which are a matter of public record) to hold a trial. More or less this is now a game of chicken, where each side is betting against the other

Democrats

Democrats are openly angling for a trial, but they want witnesses from the White House

During a speech on the Senate floor on Tuesday, McConnell rejected Senate Minority Leader Chuck Schumer’s call for testimony from four witnesses: John Bolton, the former national security adviser; acting White House chief of staff Mick Mulvaney; Robert Blair, a senior adviser to Mulvaney; and Michael Duffey, associate director for national security at the Office of Management and Budget. The four have direct knowledge about the central issue in the impeachment trial: why Trump held up nearly $400 million in security assistance to Ukraine while he pressured the country’s president to open investigations of his political rivals.

Unsurprisingly, the Trump administration has stated they are protected from testifying by Executive Privilege. The hope is that this delay puts pressure on the Republicans to accede to those demands.

The risk is that the delay may be costly to some House members. Remember, Impeachment has only been breaking even in most polls, and it would seem silly to some to go through the trouble of having done Impeachment, only to try and hold them up as a way to force the Senate to adopt rules they find favorable. There's not much leverage there

This is apparently an attempt to play hardball with McConnell to get him to agree to a fairer process. But it’s unclear whether Pelosi truly does have any leverage over McConnell and Senate Republicans, the key decision makers here. They’re not necessarily eager to hold this trial. And while President Trump surely wants to be officially “acquitted,” he likely wouldn’t want to make any concessions to Democrats to get there.

Republicans

While there are enough votes to theoretically change the rules, there's several Republicans who wouldn't necessarily vote for it

Republicans would have little room for error if they decided to try to craft their own rules package. With a 53-47 majority, they could only lose two GOP senators from a wide-ranging caucus that runs from more libertarian-minded lawmakers like Sens. Rand Paul (R-Ky.) and Mike Lee (R-Utah) to moderates such as Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska).

Normally McConnell would be able to lose three GOP senators and still get a majority by letting Vice President Pence preside over the Senate and break a 50-50 tie. But with Chief Justice John Roberts, not Pence, presiding over an impeachment trial, the GOP leader would need 51 votes from only senators.

While a resolution denouncing the House Democrats' fast-moving probe hasn't received a vote, GOP Sens. Mitt Romney of Utah, Susan Collins of Maine and Lisa Murkowski of Alaska declined to sign on as co-sponsors — the only ones out of 53 Republicans — leaving the door ajar to the possibility that they could vote to convict President Donald Trump if impeachment moves to its trial phase in the Senate.

Democrats could easily subvert McConnell if they were to negotiate rules with a small group of Republicans on the procedures. As such, McConnell may find himself unable to stop some rules the White House dislikes from being implemented.

I'd be really surprised if executive privilege goes very far in a presidential removal trial. The questions to which the president would like invoke that privilege probably go to the heart of the issues, and I really believe that Justice Roberts would not let that stand - remember, the Senate is fully in charge here.

A definitive NO, because the President isn't impeached until the Articles reach the Senate. According to Noah Feldman, "a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”"

But an indefinite delay would pose a serious problem. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

The basis for this answer is an opinion column. It is deeply flawed: the author does not understand the difference between future tense and infinitive nor between the past tense and the passive voice or participial adjective. Furthermore, the assertion that the articles must be sent to the senate to complete the impeachment is belied by the assertion that only the senate has the power to decide whether the senate is conducting a fair trial. The second assertion is correct, and that means that the senate also has the power to decide whether and when the impeachment has been properly effected.

It's only superficially flawed, not deeply, by the law professor's poor understanding of English grammar. When it comes to the actual law it is spot on, in line with many authorities on the subject, not the least of which is the Jefferson's Manual of the House of Representatives.

@JamesReinstateMonicaPolk But any search through British common law use of impeachment, from which it derives, makes it manifest that communicating the impeachment to the other house is the actual impeachment, and is as such a required act for impeachment. And on the state level, both Oklahoma and Florida have recognized this as fact in state impeachment cases; which doesn't control the Federal version, but does give strong indication of how things would likely be decided. Honestly, going the other way with this is nonsense: the Senate could initiate a trial with no one there to prosecute!

@JamesReinstateMonicaPolk There's a lot of stuff not in the constitution, yet is nevertheless the basis for a huge volume of currently binding SCOTUS opinions. If you actually read the constitution, you will realize it doesn't say a lot of things, in part because a lot of things were clear from the context at the time of its creation. The constitution has pretty much never been interpreted by any sane person as an internally exhaustive and complete document. It does not exist on an island by itself.

The US Constitution says very little about the actual process of impeachment—only that the House has "the sole Power of Impeachment", and the Senate "the sole Power to try all Impeachments". Now, the House's power appears to have two parts:

1. The power to "lay charges", so to speak—the actual impeachment.
2. The power to present the impeachment to the Senate (by appointing "impeachment managers" from among its members).

If the House does not follow through with the "prosecution", it follows that the Senate can't try the impeachment and nothing will happen.

…but maybe Yes

It is not at all clear to me that part 2 above is an inherently necessary part of the "Power of Impeachment" possessed by the House. The processes for an impeachment trial are laid out, not in the Constitution, but in Senate rules, which the Senate themselves can change.

It is conceivable, if highly unlikely, that the Senate could change their own rules to allow someone other than Representatives to "prosecute" an impeachment in a Senate trial. They'd still have to wait on the House to impeach, and (for a Presidential impeachment) they'd still have to have the Chief Justice preside—those are the two clear constitutional requirements—but it seems like everything else could theoretically be arranged however the Senate would like.

Such a thing might, in my imagination at least, happen if a Speaker of the House doesn't support the impeachment and keeps delaying sending it to the Senate. The Senate appoints their own impeachment managers (maybe even choosing Representatives behind the Speaker's back?) and gets on with the trial anyway.

I would be grateful if the downvoter would explain their reasons, seeing as there's another answer with a positive score that's essentially the same as mine. What can I improve?

I suspect that in the absence of house managers the senate might just dismiss the impeachment. But I say "might," because if the house never presents the articles to the senate, what is there to dismiss?

Assuming your #2 is required, the Senate could schedule a trial, and should the House fail to send its "prosecutors" to argue the case for removal, the defense could then move to treat the written Articles of Impeachement themselves as the House's written arguments, and that it had chosen not to present any oral arguments, witnesses, or evidence. The defense could move for immediate dismissal because the prosecution had failed to present enough evidence to convict; or proceed to call witnesses, cross-examine witnesses from House hearings, introduce evidence, and make closing arguments.

But the Senate couldn't "just" schedule a trial without having articles of impeachment "in hand" as it were. that would be an impeachment by the Senate. The question is, what does "in hand" actually mean?

@nomen: The question is about a situation where 'the House "passes" but does not "deliver" articles of impeachment'. So the articles of impeachment are written, approved, and a matter of public record. I think that counts for 'in hand'.

I think the answer is "Yes", "No", "Maybe".

The real question is "Who can tell the US Senate they can not hold an impeachment trial if the house passes but does not deliver articles of impeachment?"

I think the answer to that question is the Chief Justice of the US Supreme Court and his decision is reviewable by the Senate and their decision is final.

It means that the lower house and the upper house are fighting about impeachment.

This should not come as a suprise to anyone who knows a bit about impeachment.

As I have mentioned in https://politics.stackexchange.com/a/48978/10121 , the U.S. impeachment process originated in the U.K. (and predecessor states') Parliament's impeachment process. That has been around for almost six and a half centuries, and there has been a lot of these disagreements between the lower and upper houses of Parliament.

There have been comparatively few in the U.S. system, just 19 impeachments in two and a bit centuries, not really enough to have gone through all of the possible political snags and causes for contention in the process.

In the U.K. the lower and upper house have clashed over …

• … what commoners can be impeached for (Commons asserted that it was anything the House of Commons liked, Lords asserted that the existence of ordinary criminal proceedings override that);
• … whether the Lords Spiritual should be allowed to sit in trials on capital offences, given their religious views (Commons wanted them excluded);
• … whether (as was the case for the impeachment of the Earl of Winton) the Lords can proceed to verdict on its own initiative (the Commons asserted that the Lords cannot, and must wait for the Commons to ask);
• … (yes!) lengthy delays between voting to impeach and presenting Articles of Impeachment.

As I explained in https://politics.stackexchange.com/a/49000/10121 , there is a several step procedure that the House of Representatives follows, not detailed in the U.S. Constitution but like so many things that the U.S. Constitution is silent upon explicitly modelled upon what went on in the U.K. before. This comprises several steps: resolving to impeach, sending notice to the bar of the upper house, appointing managers, and sending them with Articles of Impeachment to the upper house. Per the so-called Jefferson's Manual, U.S. practice has followed this form, even though none of it is laid out in the U.S. Constitution.

What is happening here is that the lower house is asserting its right to proceed along the several pre-trial steps according to its own timetable, and using that as leverage against an upper house some of whose members have expressed the intent to prevent some witnesses being summoned.

For an interesting case where the subject of the pre-trial process has already come up, I give you an argument made by M. Van Cott (counsel for the lower house) in the 1872 impeachment trial of George G. Barnard by the legislature of New York State, where counsel for M. Barnard made the argument that the purported Articles of Impeachment were unauthenticated, contained erasures and alterations, were not actually passed by the lower house; and that impeachment had not in fact happened "in due form of law":

What is the proposition in its substance? It is, that a party is not impeached until articles of impeachment are agreed to, and that he is not impeached, unless the articles are agreed to in a certain form, and authenticated in a certain manner. Now, I submit, if it please the court, the counter proposition that, according to the law and usage of parliament, and according to the immemorial and uniform course of procedure in impeachments, a party is impeached when a resolution to impeach him is adopted by the accusing body, and when that resolution is communicated to the court that is to try him.

It is a question of parliamentary law; it is an historical question, depending upon the ascertained usage in such cases; and I repeat that the usage from the earliest times has been to treat a party as impeached when the impeaching body adopts an accusation and communicates that accusation to the court that is to summon and try him.

The practice of parliament has been—and it shows in a most decisive maner the principle—the practice of the Commons has been, upon presenting orally at the bar of the Lords the resolution of the House of Commons to impeach, to require the Lords to take measures to sequester the party accused so as to be assured of his presence for the service of summons, and to abide the judgement of the course; and the practice is uniform in that respect.

M. Van Cott went on to cite Erskine May, Wilson, and Cushing (then authorities in U.K. constitution matters), several prior U.S. impeachment cases, and the case of the impeachment of Lord Halifax in the U.K. in 1701, whose articles of impeachment took two months for the House of Commons to present to the House of Lords. His argument (q.v. as it is too long to quote here in full) prevailed in the end.

Further reading

• Thomas Erskine May (1844). Chapter 13. A Treatise on the Law, Privileges, Proceedings and Usage of Parliament. London: C. Knight.
• Ralph Broome (1790). An Elucidation of the Articles of Impeachment Preferred by the Last Parliament Against Warren Hastings, Late Governor General of Bengal. Stockdale.
• Proceedings in the Court of Impeachment in the Matter of the Impeachment of George G. Barnard, a Justice of the Supreme Court of the State of New York. Albany: Weed, Parsons. 1874.