The Democrats Should Transmit the Articles of Impeachment to the Senate Without Delay

There are four main reasons this gambit should be abandoned.

House Democrats
Tom Brenner / Reuters

About the author: Frank O. Bowman III is a professor at the University of Missouri School of Law and a visiting scholar at Georgetown Law School. He is the author of High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.

Speaker Nancy Pelosi is apparently toying with the idea of refusing to transmit the newly approved articles of impeachment against Donald Trump to the Senate unless Majority Leader Mitch McConnell agrees to procedural rules that would make the proceedings a “real trial.” This is a bad idea.

I understand the frustration that produced this proposal. McConnell has unapologetically announced that his management of Senate proceedings will be coordinated with the White House, rejected Minority Leader Chuck Schumer’s request that administration witnesses be subpoenaed, and thus baldly abandoned even the pretense that the Senate trial will provide a forum for impartial judgment. But in doing so, McConnell has merely been candid about a reality that everyone involved in the impeachment effort has known from the beginning: The Republican Party has bound itself to Trump and few or no Senate Republicans will vote to convict him, no matter what evidence now exists or might later be produced.

This is deeply sad, and a sorry indication of the degraded state of American politics. But it’s a fact. Nothing Democrats can do will change it. Pretending that it will will only dissipate the moral authority they have gained so far as defenders of the Constitution, and make them look foolish and impotent into the bargain.

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.

Even a favorable court decision would be unlikely to produce immediate actual testimony. For example, if the issue presented was whether presidential appointees have absolute immunity from even appearing in response to congressional subpoenas, judicial rejection of that argument would not resolve other claims of privilege—executive, attorney-client, national security—that the witnesses would inevitably raise once compelled to appear. Overcoming those claims would require another months-long trip through the courts.

Finally, while I am loath to second-guess the political judgment of Nancy Pelosi, a hold-’em-until-McConnell-cries-uncle strategy makes no apparent political sense for Democrats. In voting to impeach Trump, House Democrats have courageously done the right thing morally and constitutionally. But it’s crystal clear to every rational observer in America that Senate Republicans will now vote to acquit Donald Trump. Playing procedural games to deny them the opportunity to do so just makes Democrats look petty.

More fundamentally, it is now plain, if there was ever any doubt, that the only means of removing Trump is to defeat him in the 2020 election. Unlike Trump, I doubt the impeachment process has damaged Democratic prospects. It may have given them a modest boost. But to win the election, Democrats need to make a case based on more than Trump’s awfulness. They need to focus the nation’s attention on their own presidential-nomination process and on the substantive proposals Democrats have to make government and American lives better.

By voting to impeach the president, the House stood up for the American Constitution. But in threatening to delay transmitting the articles of impeachment to the Senate, the House is undermining that cause and risking other important objectives—such as a win next November.