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On Wednesday, House Democrats, joined by 10 Republican members, adopted an article of impeachment against President Donald Trump. It called for Trump’s removal because of his “conduct on January 6, 2021, following his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.”
Now, the article goes to the Senate, which must conduct an impeachment trial of the president, followed by a vote on whether to remove the president from office. The trial will likely be pushed into the early days of President-elect Joe Biden’s administration, as Senate Majority Leader Mitch McConnell confirmed to news outlets on Wednesday that he would not reconvene the Senate ahead of Biden’s inauguration. And it could be slow; if past impeachment trials are any indication, this trial could last weeks.
This is bad news for Biden’s first 100 days. The long process could derail policy priorities and Cabinet nominations. It would also place Trump at the center of American political life for long after the inauguration of Biden—just as the country is desperate to turn the page. And Republicans might have an incentive to drag it out even longer to make Biden’s first raft of legislation more difficult to pass.
But there’s a way to speed up the Senate trial, while still allowing the House impeachment managers and Trump’s lawyers a meaningful opportunity to make their best arguments to the Senate jury. As is the case in any civil trial before a federal court where the litigants do not dispute the material facts, any member of the Senate could move to limit the time for further arguments and proceed to closing arguments and a verdict—essentially move for summary judgment. If the Senate took this approach, the trial process would take days rather than weeks, even if it took place in the early days of the Biden administration, and would free up precious time to let congressional Democrats focus on Biden’s legislative agenda and Cabinet nominations.
A summary judgment is a decision made by a court based on evidence and statements without going to a full trial. In the United States, the option is only available in noncriminal cases, and only in cases where there is no dispute over the material facts. (Impeachment is a political, not criminal, process, thus, it’s more akin to a civil trial than a criminal trial in the federal courts.) In civil litigation, one party, and sometimes both, can make a motion for summary judgment, and the district court judge presiding over the case can grant or deny the motion. If the judge grants the motion, he or she will proceed to render a judgment based on the law, without a presentation of evidence or a jury trial of the facts.
In the case of the upcoming impeachment trial, the “judge” who would initially consider such a motion would be Chief Justice John Roberts, but the “judge” who decides on the issues of law would be the members of the Senate, who would still fulfill their constitutional duty by voting to convict or acquit Trump. A conviction using this process would, as in a traditional impeachment trial, require a two-thirds vote.
Adopting a summary-judgment approach could work because, although it is true that the Constitution stipulates that the House of Representatives must pass an article of impeachment by a majority vote, and the Senate must “try” those articles of impeachment and vote to convict by a two-thirds margin to remove the president, the Constitution does not impose any particular trial rules or procedures on the Senate. In Nixon v. United States, decided in 1993, the Supreme Court squarely held that the Senate may decide for itself how to conduct impeachment trials; the federal courts will not impose any particular procedures on the Senate nor will they hear appeals of the Senate’s impeachment trial verdicts.
How would a summary judgment work in practice?
In an ideal world, McConnell would call the Senate back into session as soon as possible, but according to recent news reports, the Senate is not likely to reconvene until a day before Biden’s inauguration. At the post-inauguration trial, then, a member of the Senate, presumably Democratic Leader Chuck Schumer, would move for summary judgment by suspending the regular impeachment trial rules. The motion could provide that the Senate would hear a few hours of legal arguments from the House managers and Trump’s lawyers, followed by an opportunity for senators to put questions to them, with a vote on the motion for summary judgment to take place after the allotted time for legal arguments. If the motion permitted a few hours to both legal teams, and a few hours for senators’ questions, the entire process could take place in the course of a day or two, rather over two or more weeks.
Of course, Congress should be wary of setting an unacceptable precedent: The Senate should not act so expeditiously that Trump is denied basic due process—which means a meaningful opportunity to mount a defense and to offer legal arguments regarding why his actions, and failure to act, on January 6 are not grounds for impeachment, removal, and banishment from the nation's public life. The Senate should preserve at least a few hours of arguments in the process, which would still greatly speed up the process to a fraction of its usual time.
To be sure, Roberts might hold such a motion out of order because it would depart from the traditional rules of procedure for a Senate impeachment trial of a sitting president. But even if he did so, the chief justice’s ruling could be appealed and reversed by a simple majority vote of the Senate’s members. Following the vote on the motion to limit the time for arguments and to vote immediately thereafter on a motion for a summary judgment of conviction, the only remaining question would be whether two thirds of the senators would vote to remove Trump from office. If the senators voted to convict Trump by a two-thirds margin, a second vote would then take place on whether to ban Trump from ever again holding federal office—with only a majority needed to impose a lifetime ban.
Prior to the 2019 Trump Senate impeachment trial, several GOP senators floated the idea of moving immediately for a summary judgment of acquittal. The Senate would have been perfectly free to adopt such a motion and summarily acquit Trump of the Ukraine call-related articles of impeachment. Trump and his lawyers, however, wanted an opportunity to mount and present a factual and legal defense, so Trump’s supporters in the Senate ultimately did not seek to truncate the impeachment trial process. Nevertheless, had the Senate taken this approach, that would have been that—and likely would have led to the same outcome that a full trial process eventually produced. By parity of constitutional logic, a summary judgment of conviction would be equally valid too.
Summary judgment would be particularly appropriate in this case. After all, the relevant facts are simply not in dispute. The main reason we have trials is to ascertain the facts; members of Congress know the facts in this case. Only a single question of law remains for the Senate to adjudicate: Whether Trump’s actions, and the president’s subsequent failure to act in a timely fashion after he succeeded in mobilizing a riotous mob that attacked and seized the capitol, are worthy of impeachment and removal from office.
Taking fast action would also clear the decks for Biden’s legislative agenda and confirmation of his executive branch appointments. With fast-track proceedings, the Biden administration’s first 100 days would not be derailed. The Senate has clear constitutional authority to limit the amount of time it spends on the trial process—and it is in the nation’s best interest for the Senate to do just that.