Quinta Jurecic and Benjamin Wittes: The remedy for Mitch McConnell
There are four main reasons why this gambit should be abandoned immediately.
First, under the Constitution, impeachment is a shared responsibility in which each chamber has an assigned role. The House decides if charges are to be brought. The Senate decides if they are proven and of sufficient gravity that the offender should be removed. The Founders held the Senate’s role as crucial, not merely to serve as an instrument for unseating a misbehaving president, but as a forum in which an accused president could be exonerated. The Constitution assigns the final judgment on the president’s fate to the Senate. It is no proper business of the House to forestall a senatorial verdict, however deplorable it may think it, with procedural tricks.
Second, the Democrats’ implied assertion that the House has any say in the procedures the Senate adopts for an impeachment trial smacks of hypocrisy. Democrats have spent the past three months insisting—entirely correctly—that under Article I of the Constitution, each chamber has the “sole power” to formulate its own rules for impeachment proceedings. House Democrats doubtless felt it a great impertinence when Senate Republicans introduced a resolution condemning the House impeachment process. They are hardly in a position now to claim a right to impose their views of proper procedure on the other body.
Third, the purported objective of withholding the articles is to guarantee a “fair” trial by securing for the Senate relevant evidence that was not available in the House. This would supposedly be accomplished by one of two means: either pressuring McConnell to issue Senate-trial subpoenas to recalcitrant administration witnesses such as Mick Mulvaney or using a period of delay to secure court rulings that would force their testimony. Neither of these approaches has the slightest chance of success.
Mitch McConnell does not want the Senate to subpoena Trump’s associates for two reasons. He knows that their testimony would strengthen the case for impeachment. More important, he knows that, Senate subpoena or not, Trump will continue to refuse to produce them. Defiance of subpoenas from the Republican-controlled Senate would vaporize Trump’s excuse that he has refused cooperation only because the House proceedings were a partisan witch hunt, and thus make the case for impeachment on the ground of obstruction of Congress irrefutable. In no imaginable universe is McConnell dumb enough to paint himself and his colleagues into that corner.
The idea that any reasonable period of delay will produce definitive court rulings on Trump’s refusal to produce evidence is equally fantastic. Trump—and those of his officials who have resisted House subpoenas—will appeal any effort to compel testimony all the way to the Supreme Court. Even if intermediate appellate courts and the high court itself were disposed to fast-track one or more of these cases, the briefing, argument, deliberation, and opinion-writing process would last until at least June 2020, when the Supreme Court announces its final opinions of this term. More important, it is both extremely doubtful that the Court has any desire to put itself in the middle of this fight by accelerated scheduling and by no means certain that the Court would produce an outcome that Democrats would like.