New idea: Democrats should impeach Trump but then withhold the articles instead of sending them to the Senate

This idea was kicking around among the chatterati last week, then seemed to pick up momentum over the weekend after the two most influential Republicans in the Senate on impeachment went out of their way to signal how deep in the tank they are for Trump. Mitch McConnell admitted on Thursday night that he’s coordinating with the White House on how the Senate trial should be run, then Lindsey Graham told CNN on Saturday that his mind is effectively made up: “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here. What I see coming, happening today is just a partisan nonsense.” When the defense is effectively running the trial and the “jurors” are openly flaunting the fact that they’re partial, what’s a Democrat to do?

Impeach and withhold, some anti-Trumpers say. Charlie Sykes makes the argument at the Bulwark:

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.

If all Sykes wants is a statement from at least four Republicans in the Senate that they’ll commit to a fair trial in principle, I’m sure that would pose no problem. Romney and Murkowski would certainly agree to it. And the two most vulnerable Republicans on the ballot next year, Susan Collins and Cory Gardner, would eagerly agree to it. They know they’ll end up voting to acquit Trump unless some sort of bombshell new evidence emerges; anything they can do to water down that acquittal vote for the benefit of anti-Trump swing voters in Maine and Colorado is an opportunity they’d relish. I bet they’d happily sign on to a statement (provided it doesn’t single out McConnell and Graham by name) that affirms that senators have a duty to weigh the facts impartially and independent of White House influence. You might get a few dozen other Republicans to sign on as well. Graham’s home state is red enough that he can’t go wrong signalling he’s a hack for the president but not all Republican senators are so lucky. Anyone with even a tinge of purple in their electorate would benefit from committing to a fair trial.

Again: In principle.

In practice, however, if Sykes is imagining specific procedural concessions in the statement like promising to subpoena Mick Mulvaney and John Bolton, per Schumer’s wishes, that’s not gonna fly. I don’t think it would fly even if Trump promised up front to demand no witnesses of his own. The last thing Collins and Gardner want is testimony from firsthand witnesses who haven’t been deposed yet and thus who could potentially drop that bombshell, suddenly making acquittal much harder for them. But Trump certainly would demand concessions on defense witnesses if Senate Republicans made concessions on prosecution witnesses, which means not only would Collins and Gardner be running a risk with the likes of Mulvaney, they’d now be facing a de facto second trial in which Trump litigates dicey matters like Burisma, the whistleblower’s motives, and so on. That’d be a political nightmare for them. They want this process to be as quick and risk-free as possible. Any procedural concession will almost necessarily extend it and make it more contentious.

Plus, there’s the small matter that House Democrats themselves didn’t insist on hearing from Mick Mulvaney and John Bolton before proceeding with impeachment. Where do Schumer and Pelosi get off making demands of McConnell on whom to call when they wouldn’t fight the same legal battle Mitch would need to fight in order to compel testimony?

But let’s say Pelosi takes Sykes’s advice and decides to impeach and withhold, hoping that that puts pressure on the Senate to make concessions which Pelosi knows they can’t and won’t make. What then? Two possibilities:

1. McConnell shrugs and walks away. There’s no trial. Impeachment just sort of … halts because House Democrats and Senate Republicans can’t come to an agreement. It seems to me that would benefit Republicans on balance since it would spare Collins and Gardner from having to take a tough vote. Ultimately the only people who would have had to cast a ballot on this wrenching dispute would be, er, the moderates in Pelosi’s own caucus. It’d be an own-goal for the ages. Maybe McConnell would rub it in by scheduling some Judiciary Committee hearings on Burisma, to let Trump get his side of the story out, as punishment for Pelosi’s petulance.

2. McConnell says that if Pelosi won’t present the articles of impeachment formally, the Senate has no choice but to vote on the basis of the reports generated by Nadler’s and Schiff’s committees. Maybe he’d ask Schumer if Senate Dems want to litigate the House’s case. If Schumer declines, then McConnell might just schedule a vote and let Senate R’s acquit Trump right then and there. That would also favor Republicans on balance, I think, since it would give Collins and Gardner an easy excuse with voters back home: We promised we’d be fair and impartial jurors but that wasn’t good enough for Pelosi. Maybe Democrats might have convinced us if they had tried the case, but they refused!

To make matters worse, having impeachment in a state of suspended animation would arguably draw out Democrats’ political pain next year. If the articles of impeachment are never formally presented to the Senate and McConnell chooses option one above, then theoretically House Dems could trigger an impeachment trial of the president at any time, on a moment’s notice once Pelosi decides to present the articles. Imagine the GOP messaging on that. “Not only are the Do-Nothing Democrats consumed with hatred for Trump, they’re so consumed that they refuse to actually let the Senate dispose of impeachment. They know they’ve lost on the facts and now they’re afraid to litigate the matter.” Pelosi’s worst fear politically is that the public comes to believe that Democrats have no agenda beyond “Get Trump.” Impeach and withhold would bolster that perception by letting the matter linger, potentially for months, instead of letting the Senate resolve it so that both parties can move on to other business.

Given how weak the polling on impeachment is, why would Pelosi want to give voters a reason to still be talking about it next summer or fall? She wants the Senate to deal with it and then get it off the table so the House can back to health-care reform.

I sympathize with people who can’t quite believe the gall of McConnell and Graham in admitting openly that they’re rigging the trial, but I’m also cynical enough at this point to know Democrats would do the same and to prefer candor in these things. Besides, as polisci prof Keith Whittington notes today at Reason, it’s inescapable given the political nature of impeachment that senators won’t behave like jurors in the traditional sense:

The Senate impeachment trial is not like an ordinary judicial trial. Senators are understood to already be familiar with the case by the time it reaches their chamber. They are not shielded by the rules of evidence from hearing the kinds of testimony or seeing the kinds of documents that might be regarded as too prejudicial in an ordinary courtroom. They are not expected to be sequestered so as to avoid publicity regarding the case. They are not instructed to avoid discussing the case with others. Senators can expect to be relentlessly lobbied by their constituents, their colleagues, the media and others up until the moment that they cast their final vote…

That does not mean that they have to wait until the formal start of a trial to start assessing whether an officer has committed impeachable offenses or limit their deliberations to the specific evidence and arguments that the House managers and the counsel for the president might present on the Senate floor. That does not mean that they have to sit for the impeachment trial with an open mind and no prejudgments on the merits of the case. That does not mean that they have to refrain from making public statements about an officer’s conduct.

There were never going to be 67 votes or anywhere near that amount to remove Trump, but I think early on in the process there was a shot for Dems to get the four Republican votes they’d need to have a simple majority of senators for removal, a symbolic victory. They didn’t seal the deal with their public hearings. Americans’ opinions didn’t move towards removal so Senate Republicans didn’t either. I’d be surprised if they get anyone in the GOP at this point.

Oh, and as for Schumer demanding that McConnell call Mulvaney and Bolton, from the moment I heard about that yesterday I assumed it was a leverage play aimed at heading off Trump’s demands that the Senate call Hunter Biden and the whistleblower. Just in case McConnell gives in on that, Schumer wants the public primed early to come away wondering, “Wait, why do we need to hear from the whistleblower but not from the people who were directly handling the Ukraine matter for the president?” If anything, Schumer’s demands give McConnell a little more leverage to deny letting either side call witnesses: Democrats don’t get Bolton or Mulvaney, Trump doesn’t get Biden or the whistleblower. See? Perfectly fair process. Given McConnell’s reluctance to call witnesses, he may be grateful to Schumer for giving him an extra pretext to tell the president no about putting on a defense.

Jazz Shaw May 16, 2022 12:41 PM ET