Republicans have handed Democrats a political gift by making it clear they plan on acquitting President Trump after the most minimal Senate impeachment trial possible. The question is whether Democrats can seize this opportunity. In a divided Congress, House Democrats control one important weapon. According to many legal experts, they can withhold the articles of impeachment from the Senate — meaning that no impeachment trial can occur until the Republican Senate leadership agrees to some approximation of a fair and thorough process.
Last week Senate Majority Leader Mitch McConnell said that there would be “total coordination” between the White House and Senate Republicans in an impeachment trial. He later added that “there will be no difference between the president’s position and our position as to how to handle this,” saying that the case against Trump “is so darn weak.” This is in spite of the fact that we know, beyond all reasonable doubt, that Trump withheld $391 million in military aid from Ukraine while asking that country’s president, Volodymyr Zelensky, to open an investigation into Vice President Joe Biden, one of Trump’s most likely opponents in the 2020 election. Those facts do not prove that the president committed a crime — but that is not the standard for impeachment. The standard is whether there is reasonable evidence that a crime may have occurred — as in a criminal indictment — and that a trial is therefore necessary. That standard has been more than met, at least by anyone who isn’t addled by the Cult of Trump.
One of the most influential Republican senators — Lindsey Graham of South Carolina, who chairs the Judiciary Committee — has already said that he has made up his mind. “I'm not trying to pretend to be a fair juror here,” Graham said last weekend on “Face the Nation.” “What I see coming, happening today is just partisan nonsense."
In the face of this obvious bad faith, Senate Minority Leader Chuck Schumer has proposed a set of rules that were agreed upon by both parties for Bill Clinton’s impeachment trial in 1999. There is no legal or ethical reason not to apply those rules to Trump’s trial. Clinton, after all, was accused of lying under oath about an extramarital affair;Trump is accused of trying to blackmail a foreign leader into helping him discredit a political rival.
We have no idea how McConnell will respond to Schumer’s not-so-bold suggestion that Democrats and Republicans should be held to the same standard. Harvard Law professor Laurence Tribe recently tweeted that if McConnell “rejects these reasonable ground rules & insists on a non-trial, the House should consider treating that as a breach of the Senate’s oath & withholding the Articles until the Senate reconsiders.” He later clarified in a follow-up tweet that “by ‘withholding’ the Articles I don’t mean not voting for them — I mean voting for them but holding off on transmitting them to the Senate.”
Tribe elaborated on this idea further in an email to Salon, comparing this process to a corrupt trial in criminal court:
Imagine this scenario: A prosecutor about to obtain a grand jury indictment learns that the foreman of the trial jury (whose members, for purposes of this thought experiment, we’ll have to assume are known in advance, as is the case with the Senate though not in the typical criminal case) has threatened to let the accused decide how the trial will be conducted — and has intimated that it will be a “trial” in name only, one orchestrated in close coordination with defense counsel. Other key jurors also announce that they don’t intend to listen to any evidence but have already made up their minds to acquit.
Republicans seem to believe they make Trump seem innocent — in the face of widespread public disapproval of his actions — by refusing to take the accusations against him seriously. Yet by more or less revealing that they don’t care what Trump did, and will give him a pass no matter what, Republicans have offered Democrats an excellent opportunity to spin a Senate acquittal of Trump as proof that his entire party has been corrupted by him.
That was not exactly Tribe’s point, which was more closely tied to legal procedure. In his scenario, he said, a scrupulous prosecutor would refuse to go forward with a fixed trial, and would instead ask the judge to replace the corrupt foreman, along with any other jurors who had clearly made up their minds about the defendant’s guilt or innocence. That isn’t likely to happen in this case, he continued:
In the world of impeachment trials, it’s unrealistic to imagine that the presiding judge, here the Chief Justice of the United States, would grant any such motion. The next best solution would seem to be the one I’ve been proposing: The “prosecutor,” here whoever Speaker Pelosi designates as the House Managers, should proceed to pin down the indictment by having the full House vote for the two Articles of Impeachment approved last week by the Judiciary Committee, but should then hold that indictment in abeyance, letting it hang like the fabled Sword of Damocles over the heads of both the president and the Senate Majority Leader and those in his caucus who, like Senator Graham, have admitted they will happily violate their oaths of office and break the special oath they will take for purposes of impeachment.
Tribe concluded that Pelosi should let that sword keep hanging there until McConnell and Schumer can reach agreement “on how to conduct the closest possible approximation to a fair trial under the politically charged circumstances.”
Would such a maneuver be legal and constitutional? Tribe admitted there is no precedent, but argued it would be “fully consistent with the text, structure, history, and purposes of the Impeachment Power as outlined in the Constitution.”
Allan Lichtman, a political history professor at American University, told Salon that Tribe’s suggestion makes political as well as legal sense.
“On a matter as grave as removing a president, the Senate must hold a full trial with both sides able to call live witnesses and present relevant documents. If closed-minded Republicans in the Senate refuse to do so, the House’s only recourse is to withhold the articles of impeachment until the Senate agrees to a real trial,” Lichtman explained.
Nancy Pelosi’s decision-making throughout the impeachment process has clearly been driven, to a significant degree, by political calculation — and especially by the fear that impeachment may damage the Democratic presidential nominee and the House majority in the 2020 elections. Lichtman rejects that argument. “Politically, a truncated process is of least help to Democrats,” he said. “A longer process will enable Democrats to present their full case and to continue their investigations. There may well be more corruption to uncover.”
If Pelosi and Schumer can get Senate Republicans to agree to a full and fair trial, even in a partisan context where everyone understands acquittal is likely, then that trial should be held. If not, then sending articles of impeachment to the rigged Senate jury is both irresponsible and tactically stupid, the political equivalent of being gifted with the goose’s golden egg and casually tossing it onto the floor.
The stakes are higher than simply winning or losing political office. As Salon columnist Heather Digby Parton wrote on Monday, in previous political eras leaders of different parties agreed “that to at least preserve the ideals behind our democratic system it was important to pay lip service to the spirit of the law.”
For instance, during the Iraq war, the Bush administration committed war crimes. But officials didn't come right out and say, "Yes, we torture people. What are you going to do about it?" There were consequences to openly defying the law, which they knew could get quite serious down the road. They understood that to openly endorse war crimes was to let an ugly, dangerous genie out of the bottle. So they claimed it wasn't actually torture and pretended that they believed torture was wrong, insisting they would never do such a thing.
The old-fashioned trope that describes this is, "Hypocrisy is the tribute vice pays to virtue." It's certainly not an ideal way for leaders to behave. They should follow the law and the Constitution, and if they don't they should be held accountable. But declaring war on virtue altogether and embracing vice as your organizing principle is what mobsters and tyrants do. That's what's happening under President Trump.”
In the summer of 1974, three powerful Republicans — Senate Minority Leader Hugh Scott, House Minority Leader John Rhodes and Sen. Barry Goldwater, a conservative hero and former presidential nominee — visited President Richard Nixon at the Old Executive Office Building. Their mission was a grim one: Republicans in Congress, having confronted increasingly incriminating evidence the Watergate scandal, were no longer unified behind Nixon. Impeachment in the House was a certainty, and their message to the president was that he would almost certainly be convicted in the Senate.
No one should idealize the Republican Party of the 1970s, which was beginning its rightward shift that would lead to the “Reagan revolution” a few years later. Well into the Watergate revelations, most Republicans Party continued to defend Nixon, and to portray the investigation as a partisan campaign to undo his 1972 re-election victory. (One of many echoes between that era and this one.)
When push came to shove, however, the Republicans of 1974 stood by a core principle of the conservative movement — respect for law and order. Nixon was clearly a criminal, and in the end even congressional Republicans who shared his political views refused to stand by him.
Today’s Republican Party is manifestly not the party of 1974; no amount of evidence, it appears, will sway them against their Dear Leader. Democrats must face that reality and strategize accordingly. Both morally and politically, they can’t risk surrender in a battle for justice, especially when truth is on their side.