It’s a sign of how screwy the Democrats’ “impeach and withhold” ploy is that a law prof who testified for their side during the hearings thinks Trump hasn’t been impeached yet while the law prof who testified for Trump thinks he has.
How dare you, both of you. Legal analysis is supposed to be motivated exclusively by partisan aims.
I side with Turley on this, as his argument is intuitive. The two houses of Congress normally act by passing bills. In a case of impeachment, the power of which is granted exclusively to the House, logically we should conclude that the House has acted once the articles of impeachment have passed. And pretty much everyone in the United States did conclude that on Wednesday night. As Turley notes, the parts of the Constitution governing impeachment (as opposed to removal) say nothing about referral to the Senate.
Section 3 gives the “sole power to try all impeachments” to the Senate. For such a trial to occur, the Senate is officially informed of the articles of impeachment by the House. One can argue that without such a referral, the Senate would not take up the impeachment. Indeed, as I stated in my testimony, English precedent includes the power of the House of Lords not to take up impeachments. The majority of impeachments were not taken up by the House of Lords because they were viewed as raw political exercises. That is not our tradition…
Where Noah [Feldman] and I agree is that this use of the articles as a bargaining chip is a departure from tradition and undermines the integrity of the process. It also contradicts the Democratic narrative that the House could not wait because this is a “crime in progress.” I argued that a little more time could greatly enhance this record. Now, having adopted articles of impeachment on a facially incomplete and insufficient record, the House suddenly has ample time to toy with the Senate on the transferral of the articles for trial.
Turley analogizes to the criminal process. Indictment is the first step for a criminal defendant, then comes arraignment, where the defendant enters a plea. Trump hasn’t been “arraigned” yet — that’s where delivering the articles of impeachment to the Senate comes in. But he certainly has been “indicted.” The “grand jury” delivered a true bill on two counts.
It was the power of Pelosi’s mighty gavel that made it official. Forever.
Rush Limbaugh told his audience yesterday that he doesn’t think Pelosi will ever deliver the articles of impeachment to the House: “She’s not gonna permit an acquittal. This is all about the blemish.” I’ll take that bet. It is all about the blemish, but for reasons I’ve already stated (twice, actually), it makes no sense for Pelosi to pull back on this process *after* forcing her own caucus to take a poisonous vote but *before* Senate Republicans have had to. She would have been happy to pull back before either chamber had voted, sparing all of the Democratic freshmen from Trump districts from having to come out in favor of impeachment, but the left would have had a conniption if she let him escape impeachment so she had to follow through. And now that she has, having led her caucus to jump off the cliff, she’ll insist that Susan Collins and Martha McSally and Cory Gardner jump too.
If House Democrats had to suffer here, Senate Republicans will need to suffer too. Simple as that. She’ll send the articles over. Plus, as a matter of basic logic, if this is “all about the blemish” for Pelosi, why would she hand Trump a reason to argue that he was never really impeached by refusing to deliver the articles to the Senate? Some law professors, including the aforementioned Noah Feldman, would back him on that. If the point of this clusterfark was to stigmatize Trump as the the third officially impeached president in U.S. history then the clusterfark must continue to completion by any definition. Leave no doubt, allow no asterisk.
Not to inundate you with takes from law professors, but it’s worth your time to read this piece today at the Atlantic from Frank Bowman. Bowman is very much pro-impeachment — and very much against this goofy “impeach and withhold” idiocy. Send the articles over immediately, he begs Pelosi, reminding her that there’s a 0.0 percent chance that McConnell would ever bow to pressure on him to subpoena Mick Mulvaney or John Bolton.
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.
Bowman doesn’t even bother to note how bizarre it is that House Democrats, in demanding that McConnell subpoena Bolton and Mulvaney, are insisting that he do something which they had the same power to do and which logically should have been done during the fact-gathering stage of the process, i.e. the House inquiry. Adam Schiff and Jerry Nadler each prepared reports in excess of 400 pages making the case that Trump is guilty without even attempting to hear from the people with the most material evidence on that point. Imagine if your local D.A. indicted someone for murder, knew for a fact that there was an eyewitness to the killing who could establish whether the defendant was guilty or not, but chose not to speak to that person at any stage of the investigation because … he was in a hurry. “We’ll call him at trial.” It’s mind-bending. If Pelosi thought a fair process required hearing from Bolton and Mulvaney, she should have interviewed them. Too late now.
In the end, though, Bowman’s argument is pragmatic and spot-on: Trump’s acquittal is assured so the prudent thing to do is get it over with and pivot back to the 2020 campaign, particularly the policy issues which Democrats believe will deliver the presidency to them. There’s no chance of removing Trump in the Senate. There’s a 50/50 chance of removing him at the polls. Only a sucker would let impeachment linger for months in hopes of adding an extra “blemish” to a president who’s already been impeached instead of moving on and fighting the battle they can actually win. Pelosi’s not a sucker. That’s what she’ll do.
Exit quotation from Chris Wallace: “How many times did we hear in the house from Nancy Pelosi, from Adam Schiff, from a number of people, ‘We’ve got to move this along because Donald Trump is a clear and present danger. We can’t wait for him conceivably to do something.’? Well, now she’s waiting, which seems to contradict everything they were saying in the run-up to the impeachment vote.”