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I always thought it was a three-step procedure:

  • First, the Congress investigates.
  • Second, the House of Representatives must pass, by a simple majority of those present and voting, articles of impeachment, which constitute the formal allegation or allegations.
  • Third, the Senate tries the accused.

But yesterday the Senate voted on whether Trump was subject to the Senate’s impeachment jurisdiction.

If the House voted to impeach, what was the Senate vote for? What was the purpose of the House vote had the Senate voted that the second impeachment trial was unconstitutional?

Considering that the first impeachment trial was weaker, why didn't the Senate vote to not have the trial?

As I see it, the House vote is inconsequential, since there can be another vote that will override the House vote. It didn't happen here, but it could've happened.

Even this question says that a trial needs to take place:

Is the Senate obligated to hold a trial?

The Constitution clearly envisions that if the House impeaches a federal official, the next step is for the Senate to hold a trial.

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    Fairly related politics.stackexchange.com/questions/62173/… Answers concern the same issue, whether the Senate can decide if something is/isn't [un]constitutional. – Fizz Feb 10 at 16:11
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    The real reason here is that many Republican Senators are frantically trying to avoid actually having to vote on convicting Trump. If they vote to convict, they'll offend Trump's followers; if they vote to acquit, they'll offend just about everyone else. So better for them if they can just say it's unconstitutional. – jamesqf Feb 10 at 17:51
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    @jamesqf Wouldn't saying it's unconstitutional also offend just about everyone other than Trump's followers? – Pitto Feb 10 at 22:59
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    @Pitto Presumably it hurts their vote count less if they offend people other than Trump's followers since a lot of those people probably were never going to vote for them anyways. – DKNguyen Feb 11 at 0:39
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    @Pitto: No. It would offend some people, of course, but fewer than having to actually vote one way or the other. Especially since the vote that it isn't unconstitutional means the House gets to present what should be - if the Senators concerned were actually acting as impartial jurors - a slam-dunk case for conviction. – jamesqf Feb 11 at 18:33
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Most of the Republican portion of the Senate are objecting to the second Impeachment trial as unconstitutional because it is taking place after Trump has left office.

They contend that because Trump is no longer the President he cannot be tried for impeachment by the Senate.

The Senate appears to have actually voted twice on this issue. Initially on Jan 26th, with a 55-45 vote. Where the Republicans forced a floor vote on starting the trial.

A Trump supporter, Senator Rand Paul of Kentucky, forced the vote on whether to proceed with the trial, calling it an “unconstitutional sham.”

Paul contended that the Senate cannot hold a trial of a private citizen, which Trump now is after his term ended last Wednesday and Democrat Joe Biden was inaugurated as the country’s 46th president.

And again on 9th Feb which went 56-44

By a vote of 56 to 44, the Senate voted that it has the jurisdiction to try a president once he has left office. The vote came after four hours allotted for debate on the issue and was largely along party lines; six Republicans voted with all Democratic senators that the trial is permissible, foreshadowing a likely acquittal at the trial’s end.

The justification used by Senate Republicans in 2021 was not available at the first impeachment because Trump was still the President.

It is not about the facts of the case against Donald Trump.

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    You beat me to it, so I'll discard my answer that said almost the exact same thing and upvote yours. – David Hammen Feb 10 at 14:24
  • Thanks. What I don't seem to understand is why there is a second vote. Doesn't the vote to impeach come from the House, regardless of what the Senate thinks? – fdkgfosfskjdlsjdlkfsf Feb 10 at 14:41
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    A new question is probably better, once there are answers adn votes making edits can cause voters and answerers to get confused. If I understand correctly, what you actually wanted to know was "Why bother with the Impeachment in the House, given there are only consequences if the Senate votes to convict, then why not just have the whole thing handled by the Senate?" – Jontia Feb 10 at 14:57
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    @fdkgfosfskjdlsjdlkfsf A good (but not perfect) analogy to the impeachment process is the process that criminal proceedings undergo. Prosecutors present reasons for presenting accusations of a crime to a grand jury. The impeachment in the House is the equivalent of the grand jury hearing. The accused do not have a right to testify at grand jury hearings in most states. The impeachment trial in the Senate is the equivalent of a jury trial. The accused can appeal to the judge in a jury trial to dismiss the case before it even starts. This was the purpose of the first two votes in the Senate. – David Hammen Feb 10 at 14:58
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    @Joshua considering the circus will move foward, future votes won't be "no juristiction"... it'll be another acquittal. As a Trump supporter, I think impeachment is "legal" after office (to bar further office). Conservatives have argued as much. I also think the impeachment #1 was 100% partisan politics with a forseen outcome... just as impeachment #2 is. The impeachment(s) were promised in 2016 and the acquittals are all but guarenteed along party lines (with a few defectors - couple more this time than last) – WernerCD Feb 11 at 11:14
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Why another impeachment vote at the Senate?

The Senate typically holds multiple votes regarding an impeachment, two at a very minimum. The Senate, with responsibility typically delegated to the Senate Rules Committee, makes up its own rules on how to proceed with an upcoming impeachment trial. The Senate as a whole then votes on the rules of the trial. Assuming no motions arise prior to or during the course of the trial, the Senate then votes on conviction. The conviction, if passed, only removes the person from office. The Senate can also vote (if the conviction passed by a 2/3 vote) to ban the person from federal office, for life.

Realistically, there are always going to be motions. Many of these require a vote. A motion to allow witnesses (assuming the rules didn't already address this point): That requires a vote. A motion to stop the trial and proceed directly to the vote on conviction: That too is possible, and it requires a vote. Whether to dismiss the case and not even hold the vote on conviction: Once again, that too is possible, and it requires a vote.

As is the case with jury trials, motions to dismiss can be made before the trial even starts. The Constitution doesn't say much on how the Senate must conduct an impeachment trial. The Constitution does not say that a trial followed by a vote to convict must be held. It merely says that "The Senate shall have the sole Power to try all Impeachments." A vote to dismiss before the trial even starts might well be exactly what the Founders intended to happen in some cases.

In the ongoing trial you most likely will see multiple votes on motions raised by the prosecution (the House impeachment team), by the defense lawyers, and possibly by Senators themselves. Voting is how the Senate works as a deliberative body.

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    This is useful to me. I did wonder how many times votes were going to happen during the process, but although they haven't asked another question yet, I think the OP is confused why there is a House vote that can be to all appearances overturned, rather than why the singular Senate process of trying the Impeachment can result in multiple votes being held. Why not have the Senate both Impeach and Convict instead of separating the functions? – Jontia Feb 10 at 17:00
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    @Jontia: It is part of the separation of powers that is embedded in the US Constitution. The authors of the Constitution were afraid of any one part of government having too much power. Thus the House and Senate have some different responsibilities: the House initiates spending bills, the Senate approves Cabinet appointments & treaties, the President can veto legislation passed by both houses... – jamesqf Feb 10 at 17:47
  • @jamesqf I though for the usual meaning of separation of powers both houses were considered the same (Legislature) part of the government? But I understand the idea. – Jontia Feb 10 at 18:02
  • I feel this should also directly address the edit, which seems the core of the Q. Impeachment happened. Now the Senate can only convict or not convict. If they don't convict because "we don't think this is constitutional" it's not somehow more powerful. They're not striking down a law like the Supreme Court would. It's the same as any other didn't-convict result. – Owen Reynolds Feb 11 at 3:58
  • @Jontia: the different houses have different responsibilities and loyalties. They have their own balancing act and separation of powers. – jmoreno Feb 12 at 13:19
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The House and Senate each have their own rules which they each make for themselves. Neither is obligated in any way to abide by the other's rules, nor (directly) able to influence the other's rules (of course, there is indirect influence simply because the leaderships of each party in both houses typically share the same goals and work together to accomplish those.) In the case of the Senate, these rules would include when, whether, and how to hold an impeachment trial for an official who has been impeached by the House.

The power of each house of Congress to set its own rules is explicitly granted by the Constitution in Article I, Section 5, paragraph 2:

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Even the courts have somewhere between very limited and no ability to interfere with (or even enforce) the rules of each chamber. The Supreme Court ruled as recently as 1993 that it does not have the power to review whether or not the Senate has conducted an impeachment properly in the case Nixon v. United States. (This was brought by impeached federal judge Walter Nixon, not to be confused with former President Richard Nixon, who resigned before he could be impeached.)

Just because the House votes to impeach someone does not obligate the Senate to actually hold the impeachment trial, nor does it prevent the Senate from voting to dismiss it as lacking jurisdiction (or on any other or no grounds.) There are very few cases where either house of Congress can legally and enforceably obligate the other to do something and this isn't one of them.

In short, the House is free to decide not to impeach someone on the grounds that such an impeachment is unconstitutional. The Senate is also free to decide not to hold an impeachment trial for someone who has been impeached by the House or to dismiss such a trial if they find that such a trial would be unconstitutional. In either case, this decision is not reviewable by courts under current Supreme Court precedent.

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  • So they're linked by logical AND? Both have to say yes for it to happen? – BlokeDownThePub Feb 12 at 7:17
  • @BlokeDownThePub: yes, they both have to agree, but the House has to decide first. – jmoreno Feb 12 at 13:16
  • @BlokeDownThePub Right (but, like jmoreno said, the House has to vote first, so think of it like logical AND with short-circuit evaluation with the House checked first. :) ) – reirab Feb 12 at 15:17
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Your confusion comes from the fact that you are thinking an impeachment is in some way similar to a criminal trial. It is not, impeachment is 100% political. The Senates duty to hold a “trail” is nothing more than a duty to make a decision.

There is no time frame during which they have to make that determination, and there is no requirement for them to do or not do anything before declaring that they have made it. There can’t be, as they can’t be bound by someone else’s opinion on how best to represent their people. The rules that bind the Senate, like the rules that bind the House, are almost entirely rules that they make and agree to.

They could give an answer seconds after receiving the impeachment, or table it until the end of the “congress” (and probably into the next).

To put it in simple terms, the House has decided that someone is no longer worthy of holding office, and has asked the Senate to agree, if both agree it happens if they don’t it doesn’t. How each reach that decision is up to them.

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