Earlier this week, in response to concerns that President Trump might fire Special Counsel Robert Mueller, Republican Senators Jeff Flake and Lindsey Graham warned that such a move might precipitate impeachment.
Of course, Senators cannot impeach the president. The power of impeachment lies solely with the House. Current conventional wisdom suggests that the House of Representatives is unlikely to impeach the president this year; the chamber is controlled by Republicans, President Trump is relatively popular in most Republican-held House districts, and the House GOP is wrapping up its main investigation of the Trump campaign, finding little wrongdoing.
Even in the case of a Saturday Night Massacre situation, the convention wisdom holds, most House Republicans would resist impeachment, particularly in the absence of a massive shift in public opinion among conservatives. GOP leaders might talk tough about Trump, but they would follow the wishes of the vast majority of the GOP caucus and decline to take any formal action toward impeachment.
Part of this conventional wisdom, however, rests on a faulty assumption: that the House GOP can use its agenda-setting power to avoid addressing impeachment. They cannot.
For normal legislation, the majority party in the House has significant agenda-setting power. Even if a majority of members of the House supports something, the leadership almost never brings a bill to the floor unless a majority of the majority party supports it. While this has become known as the Hastert Rule, the general principle has been understood and used throughout House history. Legislation cannot typically reach the floor except by positive procedural action of a majority of the House. By holding together their partisan procedural majority, the majority party routinely prevents bills and amendments from reaching the floor that, if they did, would carry a floor majority and pass.
Such potential floor majorities are quite common and exist across a whole range of issues, usually in cases where a small faction of the majority party could combine with all of the minority to create a floor majority. A DACA fix probably has such a floor majority right now. Ending the 2013 shutdown with a clean CR had such a floor majority. Gun rights often had such a floor majority when the Democrats controlled the House from 2007 to 2010. In each case, the agenda-setting power of the majority precluded the floor majority from taking action on the legislation.
Impeachment is different. Under House rules, impeachment resolutions can reach the floor via a Question of Privilege, which any member can unilaterally raise (with notice) and the Minority Leader can raise immediately. A Question of Privilege has procedural precedence over all motions except the motion to adjourn, and thus the majority party has no ability to prevent a Question of Privilege from reaching the floor.
This is how Rep. Green got his impeachment resolutions (H.Res. 646 and H.Res.705) on the floor earlier this Congress. It is also how Rep. Flemming, a Republican backbencher, forced his resolution (H.Res. 828, 114th Congress) impeaching the IRS commissioner onto the floor against the wishes of the GOP leadership.
None of these resolutions ultimately got a vote on final passage. Both of the Green resolutions were immediately met with non-debatable motions to table from the majority, both of which passed easily, giving Rep. Green a procedural vote on impeachment but no debate. The Flemming resolution survived a tabling motion from the minority, but then was referred by motion to the judiciary committee, giving Flemming and his allies no final passage vote, but getting them several procedural votes and an hour of debate.
No successful House impeachment has passed via this procedure. In previous cases of impeachment, resolutions have been reported out of committee and reached the floor either directly as privileged business or via a special rule reported from the Rules Committee. An impeachment resolution that reaches the floor via a Question of Privilege, however, is not a lesser resolution. If it were to survive procedural attempts to dispose of it, the pending question would be on the impeachment resolution, and passage would setup a trial in the Senate.
Imagine president Trump fires Mueller (and perhaps Deputy Attorney General Rosenstein and others) in a Saturday Night Massacre scenario. While the political and public opinion consequences of this are largely unknown, it seems plausible that a few dozen House Republicans might react poorly, and feel electorally-obligated to join the likely chorus of Democrats calling for impeachment.
Normally, a few dozen members of the majority party agreeing with the minority is precisely the circumstance where the majority leadership uses its agenda-setting power to bottle an issue up and never consider it. But in this scenario, the Democrats could force an impeachment resolution onto the floor via a Question of Privilege. With a small faction of the majority possibly in favor of (or at least unable to vote against) impeachment, the leadership may become worried they could lose a tabling vote, or a motion to refer, or an actual vote on impeachment.
This would likely pose an intolerable situation to the majority, who would need to respond to both the vast majority of their caucus that opposed impeachment and possibly the desire to protect the defecting faction from having to cast the tough votes on the Question of Privilege.
The likely response from the leadership would be to try to find a way to mollify the faction such that they could feel comfortable voting with the majority to table the Question of Privilege, or in the extreme case at least not vote for actual impeachment. Perhaps this could be done by the majority promising to offer a censure resolution or referring an impeachment investigation to a committee. Fundamentally, however, the majority leadership would have difficulty just talking tough about the president without taking any action.
Of course, any floor majority that is determined to get something on the agenda can always use the discharge petition. But the procedures for discharging legislation are cumbersome, cannot be used immediately, and require members to sign-on publicly before they even know if the petition will get enough signatures to get the legislation onto the floor.
The impeachment scenario described here, however, is unlikely to create a determined floor majority. More likely is that some number of Republicans would feel compelled to support it if it got to the floor. Such Republicans would be unlikely to sign a hypothetical discharge petition, but would be caught in the lurch by a Question of Privilege. The ability of the minority to force the issue onto the floor agenda would mean that the leadership could offer no direct cover to its members who didn’t want to take such a vote.
None of this is to say that Trump will likely fire Mueller, or that a faction of the House GOP would defect from the party position on impeachment, or that the Democrats would even be unified about impeachment or the use of the Question of Privilege as a mechanism to putting it on the agenda. The point is simply that the normal formal agenda-setting power of the House majority doesn’t exist on impeachment questions, and cannot protect the GOP leadership if such a scenario does arise.
This could also, in turn, impact the decision of President Trump whether to fire Special Counsel Mueller. If Speaker Ryan can credibly argue that he can’t keep an impeachment resolution off the floor and that he may not be able to stop it if even 1/8 of the House GOP supports it, it might persuade the president that the political risks of firing Mueller are too high.