House Leaders can’t Permit Sham Trial
Delaying impeachment referral to Senate may be the best approach
By Steven A Cohen
There seems little question that the House will impeach President Trump, but it should not refer the impeachment articles to the Senate for trial — at least not right away.
The Senate Republican leader, Mitch McConnell, who proudly calls himself the “grim reaper” for blocking every piece of socially responsible legislation passed by the House, says he is marching in lockstep with the White House on the impeachment trial. McConnell, R-Ky.,and the chairman of the Senate Judiciary Committee, Lindsay Graham, R-N.C., plan to make a mockery of Trump’s trial in the Senate. They are doing Trump’s bidding and the bidding of the Russian dictator, Vladimir Putin, a former Soviet KGB officer who is one of the American president’s confidants and election benefactors.
The one thing Trump and his Senate allies can’t count on is that the House Democratic leadership will mindlessly run into the trap that the Senate leaders have publicly, proudly and probably stupidly announced they’ve laid. Speaker Nancy Pelosi, D-Calif., House Intelligence Committee Committee Chairman Adam Schiff, D-Calif., and Judiciary Committee Chairman Jerry Nadler, D-N.Y., have each demonstrated competence that is out of reach to their Republican antagonists. They must be considering alternatives to sending the articles of impeachment to the Senate.
Harvard professor Lawrence Tribe said in a Washington Post op-ed: “It seems fair to surmise…that an impeachment inquiry conducted with ample opportunity for the accused to defend himself before a vote by the full House would be substantially protected, even if not entirely bullet-proofed, against a Senate whitewash.” Trump explicitly forbade anyone in the administration from cooperating with the House inquiry into impeachment, then complained that he and his defenders were locked out. Yet he refused to participate when invited to by Nadler’s Judiciary Committee.
As an alternative approach, Tribe suggests the House consider “a condemnatory ‘Sense of the House’ resolution far stronger than mere censure. The resolution, expressly and formally proclaiming the president impeachable but declining to play the Senate’s corrupt game, is one that even a president accustomed to treating everything as a victory would be hard-pressed to characterize as a vindication.”
Surely Trump would mischaracterize as complete vindication acquittal at “trial” in a partisan Senate controlled by Republicans who made allegiance to him clear well before they even got the case. This isn’t simply wrong; it would be as outrageous as his claim that special counsel Robert Mueller’s report cleared him of corruption and collusion in connection Russia’s involvement in the 2016 election. He still makes that claim, despite Mueller’s testimony that it isn’t so.
The Senate is supposed to conduct a real trial; they take an oath swearing to be impartial jurors. Supreme Court Chief Justice John Roberts would preside, though any ruling he makes could be overridden by a simple majority vote by senators. Conviction, resulting in Trump’s removal requires a two-thirds vote.
McConnell and Graham, both of whom face stiff reelection competition in November, want a quick trial in January with no witnesses and no demand for documents that have been withheld. Nadler says Trump is a “a threat to our national security,” and he calls the Republican plan “subversion of constitutional order.” Schiff says senators should call witnesses who refused to testify at House hearings on impeachment, and the Senate should demand the thousands of documents that the administration refused to turn over, despite subpoenas.
The Democrats might be well advised to seek a delay in the trial as long as possible, making Trump run for reelection in November as only the third United States president ever impeached — and a trial still hanging over his head. The Constitution requires Congress to hold the president accountable for treason, bribery and high crimes and misdemeanors. Trump qualifies for removal under every one of those categories, and investigations are continuing. House leaders chose to keep things simple and settled on only two articles of impeachment— abuse of power and obstruction of Congress — in connection with the president’s effort to get Ukraine’s help in his 2020 reelection effort. Trump clearly is guilty as charged, though his offenses against the American people actually are far greater, as are those of his enablers, who include Attorney General William Barr and Secretary of State Mike Pompeo, as well as McConnell, Graham and the Republicans they control in the Senate.
It’s a gamble, but House leaders could wait until after the election to refer the impeachment articles to the Senate, especially if Trump loses. That might help keep him in check during the lame duck period. As it is now, it will take the country decades to recover from the damage he’s done. Given his inclinations, it’s not difficult to imagine the mischief a brooding Trump who has just weeks left in office would get into.