The Present Impasse, and Its Problems:
I’m very glad that Speaker Pelosi has continued to withhold the Articles of Impeachment, rather than just sending them over to the Senate for a sham trial, conducted by Majority Leader McConnell who has been explicit about his partnership with the defendant. But I’m not clear about how this is going to play out, given the ambiguity in Pelosi’s position.
On the one hand, she says that what she needs is clarification about how the Senate will conduct the trial. On the other hand, she also makes statements indicating that she’s looking for a fair trial. But she has apparently decided to avoid boxing herself into the position that I advocated in an earlier piece— “I Hope the Democrats’ Position Is: A Fair Trial or No Trial.”
She presumably has her reasons for not taking that position. They may be very good reasons. (Although I will point out that the highly respected Harvard Law School constitutional scholar, Lawrence Tribe, has argued twice that the House impeaching but not sending the matter to the Senate is a legitimate, and may be the best, option.)
Whatever Pelosi’s reasons, I’m not sure that there’s much prospect of McConnell bending to her will and providing Pelosi with the degree of clarity that she says she wants in order to know in advance what kind of trial the Senate will conduct.
Which might leave Pelosi with the choice of either
backing down from her stated terms, and sending the Articles to the Senate with no assurance that the “trial” won't be as much of a farce as McConnell wants it to be. Or continuing to hold onto the Articles indefinitely, which would contradict Pelosi’s own statements that she will eventually send the Articles to the Senate.So I would like for Pelosi to have an alternative approach that will simultaneously
maintain Pelosi’s thus far strong posture, with no backing down and apply public pressure where it might really aid in the overall political battle with this lawless Trump presidency and this disgraceful Trump Party.Here’s what I propose:
Putting the Pressure on Senate Republicans:
Pelosi can start saying that all she needs is assurance that the Senate will fulfill its constitutional responsibility to conduct a “trial” on the Articles of Impeachment passed by the House. And all she needs for that assurance is that “a handful of Republican Senators” publicly commit to a real trial, not a fake one— i.e. to what a “trial” always means: the calling of witnesses and the examination of evidence.
She could state her position along these lines:
“We’ve all taken an oath to protect and defend the Constitution. ALL of us. That should not be a partisan issue. So when the Constitution calls for a ‘trial,’ it would be a violation of that oath to conduct a phony trial— without the witnesses and without the evidence that was withheld from the House by the very obstruction by this President that is described in one of the two Articles of Impeachment the House has brought.
“A trial is about finding out the truth, about weighing the facts, about the jury rendering an impartial verdict— as the Constitution requires all the Senators to take an oath to do.
“But the Majority Leader has already declared that he will not be impartial. (So how can he take that oath, or serve on that jury?) And he has indicated that he wants a phony trial, not a real one.
“I’m eager to hand over the Articles of Impeachment. This is serious business— sad, but required of us. All I need is for enough Republican Senators to say that they will fulfill their constitutional responsibility to see that the Senate conducts a real trial, which means they will vote for a process which includes getting the testimony of the witnesses that can help the Senate — and the American people -— to know the truth on which this President will be judged.
“The American people have indicated they want such a trial. Let’s hear from the Republican Senators who will be swearing an oath to be ‘impartial’ that they will vote to give the nation the kind of trial the Constitution requires, that the American people want, and that has been conducted throughout our nation’s history.”
Rather than lean on the intractable McConnell, lean instead on the Republicans more broadly— especially those who are up for re-election. Rather than shine a spotlight on McConnell, who is already broadly unpopular in the nation, shine it on the broader Party that has shown consistent willingness to violate its oath of office in order to protect a lawless President.