Sen. Josh Hawley’s ‘loony’ plan to dismiss impeachment unfair to everyone — even Trump

Missouri Sen. Josh Hawley’s misguided attempt to short-circuit the impeachment trial of President Donald Trump should end quickly, a victim of poor logic and a misunderstanding of the U.S. Constitution.

Instead, Missourians should see Hawley’s proposal for what it is: a reflection of the senator’s ambition, his intense partisanship and a distortion of the facts and the law.

Hawley wants to change Senate rules to allow dismissal of Trump’s case if the House fails to deliver the articles of impeachment within 25 calendar days of passing them.

“The Senate has to act,” Hawley said on “Fox & Friends” Monday, in order to give Trump “due process.”

Dismissing the impeachment case before it’s even heard in the Senate would not provide the president due process — quite the opposite. That would deny Trump his day in court, leaving the impeachment cloud hovering over the rest of his presidency.

It would also deny due process to the American people, whose representatives approved articles of impeachment against the president.

Constitutional scholar Laurence Tribe called Hawley’s idea “loony.” “The Senate cannot ‘dismiss’ articles of impeachment that have been voted by the House but have yet to be filed in the Senate,” he said in a tweet.

In statements and interviews, Hawley, a Republican, compared the impeachment process to a criminal trial. “In a real world, if a prosecutor does not try his or her case … then the defendant can say, ‘all right, then we’re dismissing the case,’ ” he said on Fox.

No criminal defendant can unilaterally dismiss a case before trial, of course. Nor can jurors, which is what Hawley and his colleagues are in the impeachment case. For that reason alone, dismissing impeachment before trial would be wrong.

But even if you accept Hawley’s analogy, his argument is flawed. Criminal cases are routinely delayed for months between indictment and trial so that lawyers from both sides can interview witnesses, examine evidence and review the law. In Missouri, a “speedy trial” can start six months after an indictment.

Jurors want and deserve as much evidence as they can get. Sometimes, new evidence emerges. That may be the case in the Trump impeachment.

Instead, Hawley seeks a non-trial, with no formal evidence at all. No one committed to the law should want such an outcome.

Hawley routinely bills himself as a “constitutional” lawyer, and he insists his proposal is designed to protect the nation’s founding document. But the Constitution does not say how quickly the House must provide impeachment articles to the Senate.

House Speaker Nancy Pelosi’s decision to delay the articles may or may not be a wise strategy, and an indefinite delay would be unacceptable. At the same time, it is not unconstitutional.

On the other hand, changing a Senate rule to impede the House’s impeachment prerogative may be unconstitutional in itself. Hawley’s rule could end up in court, further delaying proceedings.

It takes a two-thirds vote to break a filibuster over any change to Senate rules, a virtual impossibility in a deeply-divided body (something Rules Committee chairman Sen. Roy Blunt might have explained to his colleague from Missouri.) That suggests Hawley’s proposal is more about headlines and TV appearances than actual legislation.

Hawley’s colleagues should see his political ambition for what it is. They’ve witnessed this before.

We’ve urged Congress to approach impeachment with seriousness and thoughtfulness. Rallies, commercials and fundraising should not play a role in this debate. The facts and the law must determine the outcome.

Hawley has chosen to ignore both.

This story was originally published January 7, 2020 at 5:00 AM.