Who Decides When the Chief Justice Presides?

A few days ago I tweeted the following in regard to the debate over whether President Trump has actually been impeached:

There is a simple way to resolve this. @senatemajldr should send a note to the Chief Justice, notifying him of the House vote. If the CJ shows up at the Senate the next day, Trump is impeached. If not, six more weeks of winter.

This was intended to be a joke. (In case you were wondering whether I know the difference between the chief justice and a groundhog). On second thought, though, it raises a couple of interesting points. (Well, I think they’re interesting. You can decide for yourself.).

First, while the debate over whether Trump has been impeached is largely rhetorical, there is a substantive constitutional question underlying it. Has the House completed the actions required to allow the Senate to commence an impeachment trial? Or is it necessary for the House to take additional steps (such as providing formal notice, appointing managers, or exhibiting the articles of impeachment) before the Senate may constitutionally exercise the power to try impeachments?

I emphasize the question of constitutional power, as distinct from the operation of the Senate’s impeachment rules, which themselves may require the House to provide formal notice before a trial may begin. These rules are subject to amendment or reinterpretation by the Senate, but there is also a constitutional limitation on the Senate’s authority which is beyond the power of that body to change. The Constitution implicitly forbids the Senate from trying an impeachment until its jurisdiction has been invoked by action of the House. Cf. Jefferson’s Manual Sec. LIII (“The Lords can not impeach any to themselves, nor join in the accusation, because they are the judges.). The question is whether the House’s impeachment vote is sufficient as a constitutional matter to trigger the Senate’s jurisdiction.

This question is not answered by the fact that the Constitution gives the House the sole power of impeachment and the Senate the sole power to try impeachments. Each house has exclusive authority to determine how to exercise its own power, but this does not mean it has the exclusive authority to determine when the power exists in the first place (or what the courts would call “jurisdiction to determine jurisdiction”). Such an issue would arise if the House attempted to impeach or the Senate attempted to try a person who claimed not to be subject to the impeachment power at all (e.g., a private citizen). It similarly arises if there is a dispute whether an individual has been impeached such that the Senate’s power to try the impeachment is invoked.

Let’s imagine then in the current situation that the Senate attempts to act upon the House’s impeachment of President Trump. The House could take the position that the Senate has not yet acquired jurisdiction and lacks the power to act. For the reasons noted above, this dispute would be distinguishable from ¬†questions relating to the Senate’s authority to determine how to “try” an impeachment, which were found to be nonjusticiable by the Supreme Court. See Nixon v. United States, 506 U.S. 224 (1993). Nonetheless, it is unlikely that a court could or would arbitrate such a dispute between the houses.

This, however, is where the second interesting point arises. The Senate cannot exercise its power to try this impeachment without summoning the chief justice to preside. See Nixon, 506 U.S. at 230 (noting there are “three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried.”). If the Senate’s jurisdiction is in controversy, the House could ask the chief justice not to appear. Arguably, the chief justice would have to resolve the jurisdictional question before appearing in the Senate.

It is perhaps more likely that the chief justice would conclude that this motion should be presented to him in his capacity as presiding officer (e.g., after he has appeared and taken the oath). Suppose then that the chief justice, as presiding officer, decides that the Senate lacks jurisdiction. Should this ruling be appealable to the Senate? If the Senate overrules the chief justice, is he obligated to preside over a trial he believes to be constitutionally invalid? These questions have no clear answer and, as far as I know, there is no precedent to provide guidance.

These questions illustrate the difficulty the Senate would face if it attempted to unilaterally dismiss the impeachment (for want of prosecution or for any other reason) without the chief justice’s acquiescence. Notwithstanding the Justice Department’s suggestion to the contrary, the chief justice’s role in an impeachment trial is far more than merely administrative.

One might say that confusing the chief justice with a parliamentarian is almost as bad as confusing him with a groundhog. (Ok, that would be an odd thing to say, but you get the point.).