Last night, Daily Wire Editor-at-Large Josh Hammer, a constitutional attorney by training, joined “Tipping Point With Liz Wheeler” on One America News Network to discuss the news that House Speaker Nancy Pelosi (D-CA) intends to withhold the formal physical delivery of the House’s passed articles of impeachment to the Senate unless and until she and House Democrats can be assured a “fair process.” The delay raises a myriad of complex legal issues, and there is also the distinct topic of the political fallout from such a stunt.
Hammer also has an op-ed in today’s New York Post that breaks down the topic:
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. …
The president may not have an explicit constitutional right to a Senate trial. But if Democrats really cared about rule of law and good order, they would have allowed the Framers’ process to unfold as it was supposed to do. Their delay tactics merely expose the frivolity of their Trump-induced mass hysteria.
Hammer and Wheeler probed the legal and political issues at length on the “Tipping Point” television segment, with Hammer first discussing the legal intricacies and Wheeler then breaking down the politics.
Wheeler began by asking whether the Senate has to wait for the House’s physical delivery of impeachment articles to begin a trial. Hammer responded that, under the Senate’s own rules, it currently does have to wait:
… [W]hen we’re interpreting the Constitution, I think it’s inappropriate to read in implied rights and duties that are not there. So, the Constitution is pretty silent on this.
What that means [is] we then look to House and Senate internal rules. There is nothing in the House’s internal rules that mandates that the speaker of the House pass any kind of resolution or legislation and physically deliver that to the Senate. It’s totally up to the discretion of the speaker of the House. As far as the Senate is concerned, there’s a Tulane law professor — who’s apparently one of the country’s only “impeachment law” experts — who has digged up this Senate Rules provision that, according to the Senate’s own internal rules, they say that the trial does not start until the articles of impeachment have been physically delivered to the Senate.
So the Senate can always amend its own rules, but unless and until they do so, [Majority Leader Mitch] McConnell has his hands tied right now.
Later in the conversation, Wheeler expressed her opinion that Pelosi’s stunt will backfire, politically speaking: “I don’t know how this is going to help her. It shows that this is partisan, which we all know, but this shows that even to the people who were maybe on the fence. The Democrats who are on the fence, it shows that this is partisan. She’s essentially … trying to coerce Mitch McConnell into allowing [Minority Leader Chuck] Schumer and the Democrats to call witnesses that they want.”
WATCH: