There’s a realization dawning on journalists and Democrats regarding President Donald Trump’s impeachment: the games Laurence Tribe, Nancy Pelosi, and others are playing by withholding the House’s recently-passed articles might not matter after all.
Politico first started suggesting this reality on Thursday, but I’ve been arguing for weeks (specifically, on Dec. 20 and Dec. 23) that Senate Majority Leader Mitch McConnell can spike the articles of impeachment whenever he chooses.
The original idea — impeach and withhold, first proposed by Harvard law professor Laurence Tribe — was an attempt to gain leverage over the Senate impeachment process and have the House dictate the terms. In essence, the House would refuse to give the president a chance to be heard or acquitted until they could get the kind of trial they wanted.
But now, as everyone is looking to Capitol Hill with Congress back in session after the holidays, the reality is dawning on the Dems: their plan won’t work.
In their report, Politico laid out the uncomfortable reality for Democrats, who have hitched their wagon to the crazy machinations of Tribe, an entirely unhinged pundit who seems to believe every single conspiracy theory that has arisen about Trump since his inauguration. Politico reports:
Eli Honig, a former federal prosecutor and CNN analyst, described it this way when [reporter] Jake [Sherman] appeared with him on SiriusXM the other day: The Constitution stipulates other instances when things must be “transmitted” to the Senate — such as the ratified results of the electoral college vote. It never says anything like that when it comes to impeachment. So, McConnell can hold a trial without the articles.
And Honig is absolutely right. The Constitution gives both broad power and leeway for the Senate to determine the best course of action when it comes to the ouster of a federal official. The Constitution provides the House with the “sole” power of impeachment, and it gives the Senate the “sole” power to try it.
Indeed, McConnell has the absolute, unquestioned legal power to decide what to do on the issue of impeachment. To counter to this point, Tribe has tweeted:
I’ve heard some chatter that McConnell could unilaterally begin an impeachment trial without waiting for Pelosi to transmit the articles to the Senate. Not so. The standing Senate Rules preclude that option. Amending that rule would require a 2/3 majority.
But what Tribe is arguing is a procedural rule — not a constitutional one. These rules don’t preclude McConnell in the slightest. For starters, McConnell could simply say that because Democrats have refused to give the president a chance at a trial by attempting to usurp power they don’t have, he’s going to vote to acquit Trump without a trial because the Senate will not be held hostage.
What is the House going to do about that? Sue?
That won’t work. If Tribe had read constitutional law casebooks, he might have remembered a key case on the impeachment question: Nixon v. United States. No, it’s not about President Nixon, but rather, a judge with the same last name.
In that case, Judge Walter Nixon sued the Senate, accusing them of improperly impeaching him. Nixon had committed perjury and refused to step down. The House subsequently impeached him, and the Senate convicted him after referring his impeachment to a committee, not wanting to waste floor time over a trial on his behavior.
Nixon claimed he should have gotten a full trial on the floor of the Senate.
The Supreme Court disagreed, saying that the Senate had the sole power of impeachment and that how they conducted an impeachment trial was a political question; that is, courts did not have the power to step in and rule on something that was a power given only to the Senate. The Senate could decide on whatever rules to use in impeaching someone.
To that end, Tribe’s ploy on withholding the articles of impeachment is a procedural tactic with no legal power. Mitch McConnell and Senate Republicans hold all the cards on the topic of impeachment. No court would rule in Tribe’s or Democrats’ favor on this issue. They’d punt the issue, call it a political question, and get out of the fight between the House and Senate as soon as possible.
This is also why all the other complaints lodged by Democrats over “impartial juries” or “rigged trials” are without merit. No judge is going to hear a case over whether a senator violated his or her oath before a Senate trial begins. None of these “issues” that Democrats are raising are legal issues — they’re all political.
Mitch McConnell holds all the power in the Senate. Nancy Pelosi held that same power in the House. Republicans complained about how Democrats used their power to ram through a rushed impeachment process with no buy-in from anyone. Now, Democrats claim Republicans should fix all those problems in a slow trial.
But McConnell doesn’t have to fix any of the issues Democrats raised. The Clinton impeachment didn’t have live witnesses; everyone testified via depositions. McConnell also doesn’t have to bring in new witnesses — which, by the way, didn’t happen with Clinton either.
Everything Democrats are arguing on impeachment is an utter farce. If they wanted all these individuals interviewed, all the evidence brought out, and all the witnesses forced to testify, they should have done that during their House debates. They didn’t. They said it wasn’t important then — and now, McConnell can remind them of that same thing.
McConnell is letting Democrats twist in the wind trying to find any ground to stand on. If he lets them continue delaying the articles and a trial, he wins, because Democrats destroy the legitimacy of their process. If McConnell spikes the entire farce with a vote, he wins again by acquitting the president and ending the process.
Impeachment was always a losing political proposition. Unfortunately for Democrats, they are just now waking up to that reality.