state represented. The Court drew a line between judicial authority to review a decision excluding a person where possession of one of those qualifications was a matter in dispute and resolved by the House, and where, as in Powell, the House excluded a person despite his or her undisputed possession of the specific qualifications. Thus, in Powell, the Supreme Court found that the House had attempted "to set qualifications for membership" beyond the several specified in the Constitution. See Powell v. McCormack, 395 U.S. at 520.
The denial of plaintiff's motion for a hearing before the full Senate plainly diminished the Senate's ability to appraise conflicting testimony and permitted Senators to exercise their authority to try plaintiff differently from the way judges and juries try facts. But the denial was not the kind of constitutional violation that the Supreme Court found to be justiciable in Powell v. McCormack. The denial more nearly resembled a procedural ruling pursuant to the Senate's rule making authority created by Article I, § 5, cl. 2, as to the type of trial to be accorded this particular plaintiff, the sort of decision the Court of Claims has determined to be committed solely to the Senate. See Ritter v. United States, 84 Ct. Cl. 293, 296, cert. denied, 300 U.S. 668, 81 L. Ed. 875, 57 S. Ct. 513 (1937); see also Powell v. McCormack, 395 U.S. at 521 n. 42. As Judge Gesell succinctly put it, the impeachment clause of the Constitution simply "does not say that the full Senate must try all impeachments." Hastings v. United States Senate, 716 F. Supp. at 40 (emphasis in original).
As the Senate as amicus curiae persuasively explains here, the instant controversy might be justiciable and plaintiff might be entitled to the relief he seeks if he had not been impeached by the House, were not a civil officer of the United States, or if the Senate had attempted to impose a sanction beyond removal from office and disqualification from holding office in the future. He might well also prevail if he were convicted without any semblance of a trial. However, in light of the Senate's constitutionally granted rule making power, the authorities now available, and the deference due to the views of respected colleagues, it is difficult to conclude that the Senate's denial of plaintiff's motion for a hearing before the full Senate, while according him an opportunity to present and cross-examine witnesses before the Committee and the opportunity to argue both personally and by counsel before the full Senate, resulted in the dimension of departure from the Constitution's textual commitment to the Senate of the "sole Power to try all Impeachments" as to make this controversy justiciable and the claim meritorious.
In view of the foregoing, an accompanying Order will grant defendants' motion to dismiss this case as nonjusticiable.
ORDER - August 10, 1990, Filed
For the reasons stated in the accompanying Memorandum, it is this 10th day of August, 1990, hereby
ORDERED: that defendants' Motion to Dismiss should be, and is, hereby GRANTED; and it is further
ORDERED: that plaintiff's Motion for Summary Judgment should be, and is, hereby DENIED.
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