Donald J. Trump is now the third president in American history to have been impeached. On one hand, this should probably be a historical moment. But since Democrats have called for impeachment from the moment Trump won the election, this feels more like an inevitable, predetermined act of fate.
To borrow a line from John Podhoretz at Commentary: “It doesn’t feel like much of anything, to be honest. It’s just another day ending in ‘y’ in Donald Trump’s Washington.”
Congress has moved on to passing resolutions to fund the budget and Donald Trump’s trade deals with Mexico and Canada; impeachment seems like a petty, meaningless exercise. That might explain why Democrats went from full-speed ahead on impeachment to not wanting to talk about it in less than 24 hours.
That newfound hesitancy, and fear, among anti-Trump grifters is likely one of the driving forces behind the en vogue idea in the nation’s capital: impeach and withhold. The plan: House Democrats should now block the articles of impeachment from going over to the Senate for a trial.
Democrats, who said they had to impeach immediately because Donald Trump was a direct threat to the 2020 elections, have now — as Senate Majority Leader Mitch McConnell put it — gotten cold feet over the prospect of Republicans being in charge of an impeachment trial.
The idea originated from Harvard constitutional law professor Laurence Tribe, one of the most outspoken anti-Trump Democrats in legal academia. Tribe accuses Mitch McConnell of not allowing a “fair trial” to occur in the Senate. Tribe’s definition of a fair trial, for those of you following along at home, means a process rigged against President Trump.
Tribe analogizes impeachment to a criminal process, saying the House is serving up an indictment. In this instance, what Tribe wants is for the House to sit on the articles to allow the stench of the accusations to harm Trump politically, while also denying Trump any chance to defend himself at a “trial.”
I’m not very hyperbolic when I say this idea is cuckoo-for-cocoa-puffs crazy.
For starters, impeachment is not a criminal process — it’s political. I’ve hammered this point ad nauseam, pointing to prior hot ideas from Tribe and his friends like a secret ballot, but suffice it to say: none of the analogies in a criminal law setting apply here.
And even if they did, the House didn’t accuse Donald Trump of breaking any laws. If this were a criminal court setting, House prosecutors would be berating a citizen for not breaking the law. If they held an indictment over the defendant’s head with no defense, they’d be abusing the entire legal process.
Secondly, Tribe’s contention that the House has any power or leverage over the Senate in getting to a trial is patently absurd. The Constitution expilictly lays out the powers in question.
In Article I, Section 2, the Constitution gives the House “the sole Power of Impeachment.” In Article I, Section 3, the Constitution lays out the Senate’s powers:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.
I want you to focus on one crucial phrase used in both of those sections: “sole.” The House has “sole Power” to impeach, and the Senate has “sole Power” to try all impeachments.
The House has impeached Donald Trump. They’re finished with their part of this proceeding. That means the Senate, with its “sole Power” to try the president, is up next.
There’s no provision on holding the articles, or not sending them, or sitting on them. The House cannot dictate terms to the Senate. The House has no say or leverage on how the Senate conducts a trial. Any rules the Senate has right now that govern the impeachment process can be changed to anything a majority of the Senate agrees to.
Mitch McConnell doesn’t have to wait for the House to do anything. He can vote down the impeachment without anyone in the House ruling otherwise. It’s a political process, and no court can step in and say otherwise. If the Constitution doesn’t spell it out, the chambers of Congress are sovereign in their ability to determine the rules for their behavior and processes.
There’s a scene in the classic Mel Brooks movie, Blazing Saddles, where the townspeople turn on Sherriff Bart and all point their guns at him. Sherriff Bart reacts by pointing a gun at himself and holding himself hostage. Everyone standing around him suddenly reacts in horror and drops their weapons as the Sheriff walks off, continuing to hold himself hostage.
I can’t do it justice typing it out — it’s worth a watch, as is the entire movie. But that bizarro-world logic is what Democrats are doing here. They’re asserting they can do something when nothing, absolutely nothing, in law or politics says that they have the power to do so.
But everything they’re doing also helps Republicans. McConnell is more than happy to let Democrats hold on to those articles of impeachment, pretending that they don’t want a trial, while he continues confirming judges and none of the moderate senators have to make a single vote. The House takes all the blame and pressure.
For a group of politicians convinced they’re doing something historic, Democrats look like a crazy guy with a gun to his head saying that he’ll shoot if no one backs off.
Republicans are more than happy to let Democrats play these fake games; if Dems want to destroy the credibility of their “historic” impeachment, Mitch McConnell and the GOP can stand to the side and wish them the best.