Reminds me of the beginning of those old He-Man cartoons.
Don’t ask me who the cat is in this analogy. Chuck Schumer, I guess.
Madam Speaker seemingly does not agree with her own side’s lawyers, not to mention Trump’s, that the president technically hasn’t quite yet been impeached and won’t be until they finally cough up those articles of impeachment:
“Donald Trump thinks so,“ Pelosi told The Associated Press during an interview Thursday at her office in the Capitol [when asked if she’d kept her campaign promise to show the “power of the gavel”].
”He just got impeached. He’ll be impeached forever. No matter what the Senate does. He’s impeached forever because he violated our Constitution,” she said.
“If I did nothing else, he saw the power of the gavel there,” Pelosi told the AP. “And it wasn’t me, it was all of our members making their own decision.”
Was he impeached or is he still in the process of being impeached? Law prof Josh Blackman pored over the Senate rules, imagining scenarios in which we might arrive at what he calls a “Schrodinger’s impeachment” in which the president both is and isn’t impeached depending upon which part of Congress you ask. The rules are clear that the process doesn’t begin in the Senate until it receives notice from the House that impeachment managers have been appointed, and that won’t happen until January 7 at the earliest. So maybe Trump hasn’t been impeached? Well, not so fast. The Constitution also says that the House has the sole power of impeachment. So if a majority of the House decides that he’s been impeached then presumably he’s been impeached.
Which would mean, I guess, that the delay in sending over the articles amounts to impeachment just … resting for the moment. Catching a little catnap. It exists! It happened. But it’s tuckered out at the moment.
The irony is that, to maximize their strategic leverage in this standoff, each chamber needs to argue the position preferred by the other as a matter of politics. Politically, the House wants to be able to say that Trump has already been impeached; they slapped that scarlet “I” right on his forehead and he’ll never be able to wash it off. The GOP wants to argue that he hasn’t yet been impeached for the same reason, to keep that stigma off of him and hope that maybe the Democrats are just crazy enough never to send the articles of impeachment to the Senate. Strategically, however, Senate Republicans logically might want to argue that Trump has been impeached so that they’re now free to take up the matter and dispose of it quickly. (They’d have to tweak the rule I mentioned above to do that, but oh well.) For the same reason, House Democrats should logically want to argue that Trump hasn’t been impeached yet; McConnell can’t take up this matter until he’s made enough procedural concessions to Pelosi to convince her to finally send over the articles.
Of course, McConnell personally doesn’t care if she ever sends the articles over. He’d love to be able to spare the purple-state senators in his caucus from having to cast a vote. But Trump wants the opportunity to put on a defense so McConnell’s stuck trying to figure out a way to make this trial happen, with or without Pelosi’s cooperation.
Blackman has an interesting idea, in case Cocaine Mitch can convince Trump to forget about a defense:
Now, consider another Senate rule: if the House of Representatives approves an article of impeachment, but fails to transmit that article within thirty days, the Senate shall treat the article as dismissed for lack of prosecution, and the impeached official shall be deemed acquitted.
This proposal somewhat resembles Federal Rule of Criminal Procedure 48(b):
The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:
(1) presenting a charge to a grand jury;
(2) filing an information against a defendant; or
(3) bringing a defendant to trial.
“Unnecessary delay.” McConnell and the GOP could pass a new Senate rule giving the House, say, one week to transmit the articles or else Trump will be deemed acquitted without a vote. When Democrats howl, he could simply note the fact that federal criminal procedure already provides for this outcome during trials. There’s nothing novel or “norm-violating” about it. “It’s not fair to let the president linger any longer with this cloud over his head,” McConnell might add. “Produce the evidence in seven days or accept the consequences of automatic acquittal.”
He might even placate Trump by having Lindsey Graham hold a week of hearings in which Trump’s lawyers come in and address the evidence in Adam Schiff’s report point by point. That’d be the next best thing to a trial defense.
What could Pelosi do in response? Nothing. She’d have to either capitulate to McConnell’s threat and send over the articles or weigh whether an automatic acquittal for Trump would be better for Democrats politically than letting Republicans acquit him after a truncated, perfunctory trial. Maybe she’d prefer the automatic option since then she could say that Trump was never acquitted based on the evidence, that the Senate GOP couldn’t bear to look at the damning facts in front of them. But that’d be a hard argument to make when she had it in her power to avert that outcome by sending over the articles and she refused. And it’d be even harder to explain to her red-district freshmen that they had to take the toughest vote of their (probably short) careers for an impeachment which Pelosi decided wasn’t even worth a trial.
She’ll send over the articles. She has no choice, and no leverage to force a better choice.
Here’s Laura Ingraham making the case last night that the Democrats’ impeachment was “fake” and unserious. A lot of Americans, not just Fox viewers, would share that opinion if Pelosi ended up sticking the articles of impeachment in a drawer.