The House of Representatives took a historic step this week by approving two articles of impeachment against President Donald Trump. Now the House’s leaders are mulling an unprecedented next step: withholding those articles from the Senate—and effectively blocking the president’s trial there—as leverage in negotiations over the rules for that trial. Speaker Nancy Pelosi suggested that she might go that route in a press conference after Wednesday’s vote, and other top House Democrats voiced support for the possibility.
“We will make our decision as to when we are going to send it when we see what they are doing on the Senate side,” Pelosi told reporters. “So far, we have not seen anything that looks fair to us.” One day earlier, Senate Majority Leader Mitch McConnell rejected a request to hear testimony from four witnesses, including acting White House chief of staff Mick Mulvaney and former National Security Adviser John Bolton, during the trial. Neither of the two men testified before the House during its impeachment inquiry.
It’s understandable that Trump’s critics want those witnesses to testify under oath. But this would be a foolhardy way to secure their testimony. Withholding the articles would allow the Senate to evade its constitutional duty to sit in judgment of Trump’s misconduct. It would make it harder, not easier, for Americans to hear the case against the president. It would turn what should be a substantive discussion of Trump’s high crimes and misdemeanors into a mundane procedural debate, just as Trump’s allies have sought all along. And it would vindicate the White House’s claim that Trump’s impeachment was a partisan stunt instead of a legitimate constitutional process.
Championing this tactic is Laurence Tribe, a Harvard University constitutional law professor and an informal adviser to House Democrats on impeachment. He laid out the case in a Washington Post op-ed on Monday, in response to statements by top Republican senators, who called for a quick, perfunctory trial held in lockstep with the White House’s wishes. “This option needs to be taken seriously now that Majority Leader Mitch McConnell has announced his intention to conduct not a real trial but a whitewash, letting the president and his legal team call the shots,” he wrote.
There is no reason to doubt Tribe’s reading of the Constitution. As a practical matter, the House must still pass a resolution naming some of its members as managers, who would act as the prosecutors in the Senate trial. In 1998, House Republicans passed the resolution naming 13 managers on the same day that they approved two articles of impeachment against Bill Clinton. Those managers, once chosen, formally transmit the articles of impeachment to the Senate, kick-starting the constitutional process there. No managers, no transmission, no trial.
Who will serve as the House’s prosecutors this time? That’s still up for debate, apparently. The 1998 managers were personally chosen by Illinois Republican Henry Hyde, who then chaired the House Judiciary Committee. A group of lawmakers are urging House leaders to name Michigan’s Justin Amash, a conservative ex-Republican who has been one of the clearest voices on impeaching Trump, as one of the managers. Since McConnell already ruled out a trial before January, there’s time for the House members to debate and decide their roster of prosecutors before resorting to artificial delays.
But there are multiple reasons not to delay a Senate trial past that window. The most common argument in favor of this tactic is that it would give Democrats some sort of leverage as the process moves beyond their control. “As a tactical matter, it could strengthen Senate Minority Leader Charles E. Schumer’s (D-N.Y.) hand in bargaining over trial rules with McConnell because of McConnell’s and Trump’s urgent desire to get this whole business behind them,” Tribe argued earlier this week. House Democratic leaders have made similar suggestions in recent days.
This is unpersuasive for two reasons. First, it assumes that McConnell actually wants the Senate to hold an impeachment trial for Trump. The last three years suggest that the majority leader would be more than happy to keep running the Senate as a judicial-confirmation factory and a legislative graveyard. It’s doubtful that any other Republican senators are thrilled about the prospect of acting as the president’s jurors, either. Given the choice between holding a trial that could force vulnerable members of his caucus to make uncomfortable votes and not holding a trial at all, it seems more likely that McConnell would choose the latter.
Second, it assumes that Trump also wants to, in Tribe’s words, “get this whole business behind [him].” There’s a certain logic to the proposition that Trump is eager to tell his supporters that he was acquitted in a Senate trial. But I doubt that eagerness outweighs his desire not to undermine his own case in said trial. After all, if Mulvaney or Bolton could give testimony that would exculpate Trump in the Ukraine scandal, the president would have frog-marched them to the House Intelligence Committee himself last month. (The idea that Trump truly cares about the separation of powers, as his lawyers argued when blocking those witnesses from testifying, is contradicted by the rest of his presidency.)
The other half of Tribe’s argument is also unconvincing. In making the case for withholding the articles, he argues that it would vindicate higher civic and democratic ideals. “On a substantive level, [the House] would be justified to withhold going forward with a Senate trial,” Tribe wrote. “Under the current circumstances, such a proceeding would fail to render a meaningful verdict of acquittal. It would also fail to inform the public, which has the right to know the truth about the conduct of its president.”
This is too clever by half. Trump’s critics aren’t really looking for the Platonic ideal of a “meaningful” verdict; they want to convict the president of high crimes and misdemeanors, and they want witnesses and evidence that will make it more likely. I doubt that Trump cares about the legitimacy of a process that ultimately acquits him. And if there is a lesson to be learned from Brett Kavanaugh’s confirmation process, it’s that Republican senators will accept a fig leaf over a full examination of the facts if it gets the job done.
Tribe’s desire to inform the American public about presidential wrongdoing is valid. Indeed, the whole point of the impeachment inquiry was so that case could be presented to the Senate while Americans followed along on C-SPAN. But blocking a Senate trial hinders that goal instead of advancing it. As it stands, there is ample evidence to demonstrate Trump’s guilt on both articles of impeachment. While more testimony and more evidence would be nice, the case can be made without it. McConnell, for his part, has used this misstep to argue that the House doesn’t actually have a strong case. Otherwise, he contends, why would it need more witnesses?
None of this means that Trump’s critics shouldn’t fight hard on the rules for the Senate trial. What they shouldn’t do is let procedural fights overshadow the real problem: that the president abused his power and undermined Congress’s ability to hold him accountable for it. Those who see Trump’s impeachment as a partisan stunt against an unpopular president will be glad that House leaders are considering this move. Those who see impeachment as a legitimate effort to address serious presidential misconduct, on the other hand, will be bewildered and disheartened by it.