By Matt Glassman
Last Friday, as Deputy Attorney General Rod Rosenstein was announcing new indictments related to the special counsel investigation of Russian interference in the 2016 election, a group of House conservatives, led by Rep. Mark Meadows (R-NC) indicated they were preparing to file a resolution for the impeachment of the Deputy Attorney General. While few observers expect such an impeachment resolution to pass the House, its introduction creates procedural complications for the Republican House leadership and could give them a political headache.
For normal legislation, the majority party in the House has significant agenda-setting power. Specifically, legislation cannot typically reach the floor except by positive procedural action of a majority of the House’s members. Consequently, individual members cannot typically get their preferred bills or resolutions on to the floor against the wishes of the House’s majority party. This puts the majority party leadership squarely in charge of the floor agenda. By holding together their partisan procedural majority, the majority party routinely prevents bills and amendments that it opposes from reaching the floor that, if they did, would be likely to pass. Measures that thus have little or no support in the House cannot clog the agenda and waste floor time.
But impeachment resolutions are different. Under the House’s rules, they 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. In short, the majority party does not have the ability to prevent a Question of Privilege from reaching the floor.
Even if the vast majority of members—including the vast majority of Republicans—oppose the consideration of an impeachment resolution against Rosenstein, any individual member can easily get such a measure on the House floor for consideration.
This is how Representative Al Green, D-Tx., got his impeachment resolutions against president Trump (H. Res. 646 and H. Res. 705) on the floor earlier this Congress. It is also how Representative John Fleming, R-La., forced his resolution (H. Res. 828, 114th Congress) impeaching the IRS commissioner onto the floor against the wishes of the GOP leadership.
None of those resolutions ultimately got a vote on final passage. Both of the Green resolutions were immediately disposed of by the majority using non-debatable motions to table (both of which passed easily). The result was to give Green a procedural vote on impeachment but no debate. The Fleming resolution survived a tabling motion from the minority, but then was referred by motion to the Judiciary Committee, giving Fleming and his allies no final passage vote, but getting them several procedural votes and an hour of debate.
No successful impeachment resolution has passed the House via a Question of Privilege. 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 trigger an impeachment trial in the Senate.
If House conservatives are determined to put a Rosenstein impeachment resolution on the floor, the Republican leadership will probably seek to bargain with them in order to avoid a vote that may put many Republican members in a tough spot or otherwise damage the party reputation heading into the midterm elections. While many conservative Republicans may like to take such a vote, it could create a dilemma for vulnerable Republicans, who may prefer not to consider the issue rather than imperiling their re-election by having to choose between upsetting their conservative base and angering swing voters who may be opposed to an impeaching Rosenstein.
What could the leadership offer conservatives in order to get them to not bring up an impeachment resolution as a Question of Privilege? One possibility is a vote on a censure resolution, a weaker sanction that has no legally binding effect, and could be targeted toward the perceived substantive actions at DOJ that have upset conservatives. They could also offer alternative measures that take place off the floor, such as a guarantee of further oversight hearings for the Department of Justice.
This article originally appeared in the Legislative Procedure blog on July 16.
Matt Glassman is a Senior Fellow at the Government Affairs Institute. Formerly, he covered Legislative Branch Operations and Appropriations for the Congressional Research Service, and was detailed to the Legislative Branch Subcommittee during the 111th Congress. You can find him on Twitter @MattGlassman312.