Laurence Tribe: Skip the Senate and let the House hold an impeachment "trial" for Trump

“Wait,” you say, “under the Constitution it’s the Senate that’s supposed to hold a trial for the president in a case of impeachment. The House is more like a grand jury, with the articles of impeachment analogous to an indictment.” Right, Tribe understands that. He’s not claiming that Trump can be removed by the House acting unilaterally. What he’s saying is that, since the Republican Senate will vote to acquit him no matter what, Pelosi should treat the Senate side of the process as a farce and dispense with it, holding her own “trial” in the House. If the president’s found “guilty” — and he will be, of course — then Democrats can claim a symbolic victory. Even though it would mean nothing in terms of removing him from office.

What Tribe wants, in other words, is to indulge the left’s impulse to impeach in its purest form. It’s not really about removing Trump from office, although of course they’d love that. At its core it’s about rebuking the president in the most potent way available way to them, which is why censure and long committee investigations that end with no official action being taken just won’t cut it for diehard progressive anti-Trumpers. They want to see the famously unaccountable Donald Trump held to account via the most forceful accountability mechanism the House possesses. Tribe’s giving them that. Impeach him, hold a “trial” in the House that has no force of law, and content yourself with the fact that that’s the most you can hope for knowing that 67 votes in the Senate are required for removal.

[T]o think of the House of Representatives as akin to a prosecutor or grand jury is misguided. The Constitution’s design suggests a quite different allocation of functions: The Senate, unlike any petit (or trial) jury, is legally free to engage in politics in arriving at its verdict. And the House, unlike any grand jury, can conduct an impeachment inquiry that ends with a verdict and not just a referral to the Senate for trial — an inquiry in which the target is afforded an opportunity to participate and mount a full defense…

It seems fair to surmise, then, that an impeachment inquiry conducted with ample opportunity for the accused to defend himself before a vote by the full House would be at least substantially protected, even if not entirely bullet-proofed, against a Senate whitewash.

The House, assuming an impeachment inquiry leads to a conclusion of Trump’s guilt, could choose between presenting articles of impeachment even to a Senate pre-committed to burying them and dispensing with impeachment as such while embodying its conclusions of criminality or other grave wrongdoing in a condemnatory “Sense of the House” resolution far stronger than a 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.

It’s not just symbolic, he insists. A House “verdict” of guilt might force some fencesitters in the Senate to take a closer look at the evidence against POTUS, or it might galvanize the public to support removal from office in numbers so overwhelming that the Senate would feel compelled to act. It could happen. It could!

But no, not really. It couldn’t. This is pure symbolism, and weirdly one that may hold more political downside for Tribe’s party than for Trump’s. Impeachment would be a tough vote for battleground legislators in both parties since they need to navigate a potential primary challenge and then a tight general election. Pelosi enjoys a majority in the House right now only because dozens of centrist Dems were able to knock off Republicans in purple districts last fall in an anti-Trump political climate. Under Tribe’s plan, all of those vulnerable Democrats would be forced to cast a difficult vote on impeachment — but their Republican counterparts in the Senate might not. They might be spared.

Another way of putting that is that Tribe’s biggest fan for this proposal might be Mitch McConnell. If there’s any constitutional way for Cocaine Mitch to avoid the political ordeal of a Senate trial for Donald Trump, he’ll lunge at it. Why put swing-state senators who are on the ballot next fall like Susan Collins and Cory Gardner through a no-win process? Why risk splitting the party over Trump’s guilt and inviting oceans of harsh press once Trump is inevitably acquitted? Tribe’s giving McConnell an out here if Pelosi were to take his advice: “The fact that the House has made a farce of this process means we won’t even take it up. Nancy Pelosi has issued her ‘verdict.’ America can satisfy itself with that.” Or, if McConnell reads Article I as requiring some sort of Senate process when the House has voted to impeach, he could cite the evidence produced at Pelosi’s “trial” for Trump as sufficient for consideration and order a snap vote on Trump’s guilt in order to be done with the matter. Why do we need to hold our own trial, he might say, when Nancy Pelosi has gone to the trouble of holding one for us? Let’s vote.

Also, Tribe’s kidding himself if he believes Trump would participate in a House trial in any way, even by his attorneys. (He notes that the House invited Nixon to answer the charges against him during Watergate and that Nixon appeared via counsel.) To participate would be to acknowledge the process’s legitimacy. If anything, Trump would point to the fact that the House isn’t empowered by the Constitution to hold an impeachment “trial” as evidence that this is another lawless politicized witch hunt. The sheer novelty of Tribe’s idea would make it easier for the president to denigrate the House process and to convince the public to ignore it.

He did make me laugh near the end, though, when he noted “the possibility that [the House’s] inquiry would unexpectedly lead to the president’s exoneration.” Imagine Pelosi, whose reputation was built on her ability to wrangle her caucus to pass ObamaCare, defying her political instincts and trying to impeach the president — and then coming up short. You can’t. No vote in the history of the country will be more assured than a vote to impeach if/when she finally decides to go ahead with this. She’s not going to risk an electoral backlash by Republicans next year for a potential “not guilty” outcome. Her legacy would be shattered half a dozen different ways.

Semi-related exit question: What strange things are going on in Alan Dershowitz’s mind to lead him to believe that Congress might impeach and remove the president but be overruled by the Supreme Court? John Roberts isn’t going to instigate the biggest constitutional crisis in American history and Dershowitz knows it; his argument sounds suspiciously like a way of encouraging Trump to ignore a guilty verdict in the Senate and cling to office, just in case it ever came to that. (Which it won’t.) Either he’s trying to further ingratiate himself to Trump and Trumpists or he’s drinking in the daytime.