It is beginning to dawn on Democrats that the moment they send articles of impeachment for Donald Trump to the Senate, they will have lost all of their leverage.
So they shouldn’t do it.
At least not yet, especially in light of the recent comments by Mitch McConnell and Lindsey Graham.
McConnell has said that he intends to work in “total coordination” with the White House and that “I’m going to take my cues from the president’s lawyers.” He adds: “There’s no chance the president will be removed from office.”
Graham is, if you can believe it, even less subtle. “I am trying to give a pretty clear signal I have made up my mind,” he said over the weekend at Doha Forum in Qatar. “I’m not trying to pretend to be a fair juror here . . . I will do everything I can to make it die quickly.”
It is impossible for McConnell and Graham to square those public comments with the oath that senators are required to take at the opening of the Senate’s impeachment trial: “I solemnly swear … that in all things appertaining to the trial of the impeachment of Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”
In effect, the majority leader of the Senate and a top Republican have literally said that they intend to violate their oath as judges/jurors.
House Democrats should treat these comments as game changers.
Bill Kristol and Jeffrey Tulis make the case that a small group of senators could “form a constitutional caucus,” that could “determine what the outlines of a full and fair trial would look like.”
But the House should put maximum pressure on the Senate to fulfill its oath, especially the vulnerable senators who might hold the balance of power.
The key here is that there is no requirement that the House immediately send the articles of impeachment to the Senate. This is Speaker Nancy Pelosi’s final card to play.
So here is a modest proposal: the House should (1) vote to impeach on Wednesday, and (2) withhold sending any articles which pass to the Senate unless and until a majority of senators commit to holding an open and fair trial in accordance with the Constitution.
Speaker Pelosi could highlight Trump’s continued cover up and obstruction, while also noting that his abuse of power is a crime in progress.
She could also explicitly link the referral to Chuck Schumer’s demands for key documents and the testimony of senior White House officials, including acting White House chief of staff Mick Mulvaney; Mulvaney’s senior adviser Robert Blair; and former national security adviser John Bolton.
Here is what Pelosi could say:
This is a grave constitutional moment. And it requires a full, open, and fair trial in the Senate, in accordance with the Constitution and the oath that senators take at the beginning of any trial. But the comments from the Senate majority leader and chairman of the Judiciary Committee risk making a mockery of that process.
They may think this is a joke. We don’t. We think it is deadly serious and we think the American people deserve to know the facts and the truth.
We will refer these articles of impeachment to the Senate when a majority of its members commit to a full and fair trial that includes an honest attempt to look at the evidence, hear witnesses, and examine documents that have so far been withheld from Congress and the American people.
This idea seems to have already occurred to some Democrats:
Senate Democrats are quietly talking about asking Speaker Nancy Pelosi (D-Calif.) to hold articles of impeachment in the House until Senate Majority Leader Mitch McConnell (R-Ky.) agrees to a fair rules package for a Senate trial.
Democratic senators are concerned by talk among Senate Republicans of holding a speedy trial without witnesses, which would set up a shorter time frame than when the Senate considered President Clinton’s 1999
“There’s no requirement the impeachment articles be sent here within any particular time. But certainly we don’t want delay just for the sake of delay,” the lawmaker said.
Harvard’s Laurence Tribe is on board with impeach/withhold:
BREAKING NEWS: Schumer’s proposal to McConnell. If he rejects these reasonable ground rules & insists on a non-trial, the House should consider treating that as a breach of the Senate’s oath & withholding the Articles until the Senate reconsidershttps://t.co/a9zbBywFBG
— Laurence Tribe (@tribelaw) December 16, 2019
And Greg Sargent and Paul Waldman note that Democrats can put vulnerable Republicans on the defensive here:
If Democrats play their procedural cards right, they can pressure Republicans to allow for a much fairer and more open trial that could actually produce new revelations — and if they refuse, extract a political price for it.
By telling Sean Hannity that the process of Trump’s trial will be set up “in coordination with Trump’s legal team,” McConnell told the world he wants to rig the process to produce maximal benefit for Trump.
But McConnell might not actually be able to do this, if he doesn’t have 51 GOP votes for it — which could be the case, if vulnerable GOP senators don’t want to go along with it.
And that allows Democrats to make a public case for a much fairer and more open process — and to try to force those vulnerable GOP senators to take a stand on whether they, too, want a fair and open process.
Who might those senators be? Cory Gardner? Susan Collins? Joni Ernst? Martha McSally? Who could perhaps be joined by Mitt Romney and Lisa Murkowski. Remember it only takes three GOPers to force McConnell’s hand and once that tipping point is reached, the incentive structure actually swings the other way, for more Republicans to get onboard.
In the meantime, the stink of impeachment will continue to hang over a deeply frustrated Donald Trump.
Which is as it should be. He chose this.