Unpredictable Senate

It was only January 3, and we already had a legitimate submission for hypocrisy of the year. This was courtesy, unsurprisingly, of Donald J. Trump, of whom newly-elected US Representative Rashida Tlaib of Michigan told supporters at a Move On rally “We’re going to go in and impeach the motherf***er."

The President responded "I thought her comments were disgraceful. This is a person that I don't know, I assume she's new. I think she dishonored herself and I think she dishonored her family. Using language like that in front of her son and whoever else was there, I thought that was a great dishonor to her and to her family."

Now that Representative Tlaib has dishonored her family, where is Stormy Daniels when we need her? Democrats are unnecessarily, characteristically, alarmed, though Representative "Adam Schitt" remains characteristically calm.

Conventional, nearly universal, wisdom has it that the Democratic-controlled House of Representatives can impeach but that the GOP-controlled Senate will never convict. That rests on the ridiculous assumption that a Senate trial would take place in today's environment, in which 71% of Republican voters believed as of a month ago that the Special Counsel probe is a "witch hunt."

However, it is very unlikely there will be impeachment proceedings before Mueller issues a report- and even then, none unless the findings are damning.  However, if the findings are very serious- as is extremely likely-  there will be a shift in opinion among GOP voters. It may not be dramatic, but wouldn't have to be in order to make a Senate trial sufficiently competitive that a two-thirds majority would be found to throw Donald Trump out of office.

Yet, that assumption in turn rests on one made, from what I can tell, by every politician, pundit, and lawyer who has weighed in on the subject. The presupposition is that once the House has impeached the President, the Senate would take up the matter.

Article 1, Section 2 of the US Constitution reads "The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment."  Section 3 states

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.

Clearly, only the Senate has the power to try individuals who have been impeached. Almost as clearly, the Senate has no obligation to do so; it is granted not the responsibility, but the power.

So it is not certain that Senate Majority Leader Mitch McConnell would post the case of the House v. President Donald J. Trump.  If he did bring it, GOP senators would have to to take a stand. At this moment- before release of the Special Counsel's report- that would be hazardous for the few representing states not strongly Republican. It's a risk he might prefer to avoid, similar to his decision, cowardly and irresponsible, to avoid bringing to a vote the House's bill ending the current government shutdown.

However, if Mueller's report establishes a strong likelihood that Trump were aided by a conspiracy involving his campaign and Russia, pressure would mount on even his own party's senators to vote to convict. While the Majority Leader would not like to force them into making a difficult decision which could be hazardous either way they voted, he might have no choice because a majority of the country would be clamoring for removal.

Consequently, a trial in the Senate- were it to take place- would not necessarily result in acquittal, notwithstanding conventional wisdom.  It is also unlikely to take place in the absence of overwhelming evidence which shocks the conscience of the nation, which makes Rashida Tlaib's enthusiasm nearly as unnecessary as the overheated response to it. 

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