Daily Wire Editor-at-Large Josh Hammer, who is a constitutional attorney by training, has the following piece today at the New York Post.
Ever since President Trump took office, liberals have bewailed his degradations, real and imagined, of various “norms.” Trump needs to stop tweeting, they say. He needs to start acting like a dignified leader of the Free World ought to act. He needs to cut out the gratuitous attacks on the media. And so forth.
Those same “norm”-exalting Democrats and Never-Trump Republicans are now awfully silent as House Speaker Nancy Pelosi makes a mockery of the impeachment process and its centuries-old norms.
Democrats this week fulfilled the longing of their base by making Trump the third president in American history to have formal articles of impeachment against him passed by the House. They knew the process would ultimately go nowhere; a decisive acquittal in the Senate trial was clearly the foregone conclusion.
But then came a bizarre development. Pelosi told reporters after the vote that she intends to delay formal, physical delivery of the articles of impeachment to the Senate until Democrats can be assured a “fair process” in the upper chamber.
Such a delay would be historically unprecedented.
The law doesn’t require Pelosi to deliver the articles of impeachment to the Senate. But politically, her latest reckless stunt makes an already unserious partisan effort look even more patently unserious.
The Constitution is silent on how to resolve such an impasse between the House and the Senate. Article I, Section 2, Clause 5 says that the House “shall have the sole power of impeachment.” And Article I, Section 3, Clause 6 says that the Senate “shall have the sole power to try all impeachments.”
In constitutional law, the use of the word “sole,” in each provision, bars any actor other than the specified legislative body from establishing its own impeachment-related internal procedures.
But the Constitution makes no reference to the scenario now before us: The House passing articles of impeachment but refusing to transmit them to the Senate. Simply put, it is a situation that the Constitution’s Framers didn’t envision.
Some prominent lawyers on the right, such as former Principal Deputy Assistant Attorney General Tom Dupree, have argued that it is outright unconstitutional for Pelosi to delay transmission. He has suggested that Trump has a constitutional right to see his impeachment proceed to a possible acquittal in the Senate.
I disagree. As a matter of constitutional construction, it is generally inappropriate to read duties and rights that aren’t there in the text. When the Constitutional text is silent, we have to turn to hierarchically lower bodies of law. Here, that means the internal rules governing the House and the Senate.
There is nothing whatsoever in the House’s internal rules that requires the delivery of any particular resolution or bill to the Senate. As for the Senate, Tulane Law School Professor Ross Garber, an expert on the impeachment process, has observed that the Senate process gets triggered only after the formal delivery of the articles and the appointment of impeachment managers.