Trump's lawyers wonder: If Pelosi never delivers the articles of impeachment, does that mean he's not really impeached?

The outcome of this fiasco that would be truest to the spirit of American politics circa 2020 would be not just a stalemate between the Democratic House and Republican Senate but a stalemate in which the two sides can’t even agree if impeachment has happened.

“You need to hold a trial on whether to remove him!” “What? He hasn’t even been impeached yet.

Don’t get too invested in this silly dispute, as enjoyable as it is. Pelosi knows that the argument for withholding the articles of impeachment is imbecilic. She’ll send them over just as soon as she gets a few news cycles about Senate Republican bias in Trump’s favor out of this stunt.

I think?

Lawyers close to President Donald Trump are exploring whether House Speaker Nancy Pelosi’s decision to temporarily withhold articles of impeachment from the Senate could mean that the president hasn’t actually been impeached.

The legal argument, according to a person familiar with the legal review, is that if Trump has been officially impeached, the U.S. Senate should already have jurisdiction. Backers of the theory would argue that the clause of the U.S. Constitution that gives the Senate “the sole Power to try all Impeachments” indicates that the impeachment isn’t formalized until the House reported the charges to the upper chamber.

The case is largely a rhetorical one, but could provide the White House and Senate Republicans leverage as lawmakers debate when and how to conduct a trial on charges that the president abused his power to solicit an investigation into political rival Joe Biden, and obstructed the congressional investigation into the matter.

This is a fun strategic conundrum for both sides. Which would be a better outcome politically for Republicans and Democrats, a standard impeachment trial in which Trump is acquitted or some sort of summary process in which Pelosi refuses to trigger a trial by delivering the impeachment articles and then McConnell disposes of the matter peremptorily, either by calling a snap vote or setting some sort of deadline which Pelosi ends up missing? From Democrats’ perspective, arguably the summary process is better. They know the trial won’t deliver the outcome they want so their whole goal in this process has been to add an asterisk to Trump’s presidency indicating that he’s been impeached. If they force McConnell to deal with impeachment without a trial that involves the House’s participation, they can underline that asterisk. “Not only was Trump impeached, he was acquitted by a jury that didn’t even look at the evidence.”

Summary process arguably works better for the GOP too. McConnell calls a snap vote, the president’s acquitted, and then the endangered incumbents like Collins and Gardner can go home and say, “I was willing to keep an open mind but that damned Nancy Pelosi wouldn’t put on a case! What was I supposed to do? We can’t have this matter hanging out there forever, dividing the country.” Remember the brief “deem and pass” nuttiness from the days of the ObamaCare debate? Maybe Cocaine Mitch could deem that the articles of impeachment have been delivered and then call the vote.

Withholding the articles of impeachment turns out to be a win/win for both sides!

But wait. The last thing Pelosi wants is to spare Collins et al. from a hard trial vote. And like I said in this morning’s post, her freshmen are nervous that McConnell might decide not to dispose of the matter at all and just leave it dangling over the House’s head throughout 2020, frozen in place. Democratic presidential candidates won’t like the withhold strategy either since there are only about six weeks left before the primaries begin. You think Bernie Sanders or Elizabeth Warren wants to be called away from the trail after states have started voting because Pelosi finally decides to deliver the articles to McConnell in March or whenever? Meanwhile, the whole point of withholding the articles is to protest the supposed procedural irregularity in the Senate of Trump’s “jurors” admitting they’re partial to him. But withholding the articles is itself a procedural irregularity, and an ironic one given that the the second article of impeachment involves obstruction of Congress.

House Democrats want Trump convicted of obstruction and they’re going to … obstruct the Senate to try to make it happen?

Rubio’s exactly right about this:

Pelosi would love to force the Senate into some sort of obviously dubious resolution which Democrats could then point to as evidence that the fix was in. But it’s too risky for her and her caucus to linger in this matter. And given how open McConnell and Lindsey Graham have been about their lack of impartiality, Dems will be able to argue that Trump’s acquittal was dubious even after a trial. She’s got to deliver the articles of impeachment — and soon, before McConnell settles on some sort of summary option that would be perfectly fine, if not preferable, to his caucus.

Although … would it be preferable to Trump? Would the president rather go through a trial or have McConnell come out next Wednesday and say, “Well, it’s been a week and we still don’t have the articles. Looks like it’s time to vote.”? Hmmm:

Trump wants a defense of some sort, even if it doesn’t involve calling witnesses. He’s watched Schiff and the Democrats pummel him on television in hearings for months with no opportunity for a direct response. The trial is his opportunity — and now here’s Pelosi almost daring McConnell not to hold a trial at all by refusing to hand over the material that’ll trigger it. Trump may be Pelosi’s insurance policy here in ensuring that Collins and Gardner cast that hard vote for acquittal. He’s going to want some sort of process in which his people get to put on a show. Summary process won’t cut it.

So, in the end, we’re going to get a trial.

McConnell has almost three weeks to plot a way forward. The House won’t vote on impeachment managers until the new year, which means the articles won’t be delivered to the Senate until January 7 at the earliest:

Here’s newly minted Republican Jeff Van Drew, who was calling Stephen Miller a racist as recently as three weeks ago, pledging his “undying support” for Trump. By the way, a new online poll on impeachment finds 53 percent agreeing that Trump abused his power but just 42 percent believing that he should be removed from office for it. Forty-six percent feel the charges should either be dismissed or that he should be censured instead of impeached.

Jazz Shaw May 06, 2021 7:58 AM ET