Harvard law professor Laurence Tribe has penned an editorial column in support of the refusal of Speaker Nancy Pelosi to submit House articles of impeachment to the Senate for trial. Tribe declares this strategy is not just constitutional but also commendable. That view may be half right on the Constitution. However, it leaves Pelosi all wrong on her unprecedented gaming of the system. The withholding of the articles is not only facially inappropriate. It shatters the fragile rationale for the rush to impeach.
Tribe focuses on a point on which I agree entirely. We both have criticized the position of Harvard law professor Noah Feldman, who testified with me in the House Judiciary Committee hearings, that President Trump has not really been impeached. Feldman insists that impeachment occurs only when the articles and a slate of House trial managers are submitted to the Senate for trial. However, there is no support for that interpretation in the text or history of the Constitution. Indeed, English impeachments by the House of Commons often were not taken up for trial in the House of Lords, yet all those individuals still were referenced as impeached.
Now for our point of disagreement. The Constitution does not state that the House must submit the articles of impeachment to the Senate at any time, let alone in a specific period of time. Tribe insists this means that the “House rules unmistakably leave to the House itself” when to submit an impeachment for trial. There are, in fact, two equal houses of Congress. Faced with a House manipulating the system, the Senate can change its rules and simply give the House a date for trial then declare a default or summary acquittal if House managers do not come. It is the list of House trial managers that is necessary for Senate proceedings to commence.
The “standing rules of procedure and practice in the Senate when sitting on impeachment trials” are triggered when the House gives notice that “managers are appointed.” The Senate is given notice of the impeachment in the congressional record shared by both houses. The articles are later “exhibited” by the managers at the trial. Waiting for the roster of managers is a courtesy shown by the Senate to the House in preparing its team of managers for the trial. We have never experienced this type of bicameral discourtesy where the House uses articles of impeachment to barter over the details of the trial. Just as the Senate cannot dictate the handling of impeachment investigations, the House cannot dictate the trial rules.
Tribe calls it “utter nonsense” to accuse Pelosi of “constitutional betrayal” for holding up the impeachment trial. Yet just because the Constitution does not declare such a withholding to be wrong does not make it right. Tribe was appropriately outraged when the Senate refused to vote on the Supreme Court nomination of Merrick Garland during the final year of the Obama administration. While the rules “unmistakably leave” to the Senate itself when, if ever, to vote on a nominee, Tribe has treated that decision by Senate Majority Leader Mitch McConnell as a constitutional betrayal, even calling McConnell “McTurtle” over his position on such powers.
Under its rules, the Senate shows comity to the House in waiting until the roster of managers is sent, just as the House shows comity to the Senate in submitting an impeachment without conditions. The two articles were passed by the House to submit a president for trial, not to empower Pelosi to unilaterally use impeachment as a means to coerce an equal chamber. Yet Tribe commends Pelosi for her unprecedented delay of the process. What is most remarkable about the stance that Pelosi has taken is how it has already damaged the position of the House, and could even create lasting damage for the House as an institution. Not only did the House refuse to subpoena critical witnesses like former national security adviser John Bolton, but they also inexplicably withdrew the subpoena of a key aide to Bolton shortly before a federal court was prepared to rule on it.
The result is an inferential impeachment case without the testimony of witnesses with possible direct knowledge of quid pro quo over Ukrainian aid. Democratic leaders insisted there was no time to spend even a couple of months building a better case since there was a Trumpian “crime spree” in progress. By wasting months and not getting more testimony, Pelosi left it up to the Senate to create a record unwisely and quickly abandoned by the House. It is a highly ironic position, given the historical opposition to any witnesses by Democratic senators, including now Minority Leader Charles Schumer, during the 1999 impeachment of President Clinton. Only three depositions were allowed, with no live testimony, back then.
Tribe, who testified with me during the Clinton impeachment hearings, now calls such a trial without witnesses a sham. The strategy of Pelosi is unlikely to succeed with the Senate, but it has succeeded in making a mockery of the rushed rationale. It is like a neighborhood watchman calling for urgent police action then refusing to give any information about a crime until he gets certain assurances on the trial conditions.
Tribe insists that Pelosi is justified as McConnell said he will not follow his oath to do “impartial justice” and accuses him of a “clear violation” of his oath as a juror. Before the Clinton trial, however, Democratic senators said the same thing without such objections. Schumer, who has declared the statement by McConnell an “astonishing admission of partisanship,” had actually campaigned on a pledge to not impeach or convict Clinton and also dismissed objections to his suggestions that he should act like an impartial juror. Tribe also does not mention a long line of Democratic senators who declared Trump guilty before even the start of a trial.
In reality, a jury of politicians judging the alleged use of public office for personal gain is like having the Pirates of Penzance sitting as jurors in a maritime salvage case. Pelosi is demanding the Senate allow witnesses, which Democrats opposed during the Clinton trial, while holding up the start of a trial, which Democrats until recently insisted was so urgent that they could not wait for supportive testimony or court rulings. All this is being done for the implausible purpose of forcing the Senate to yield to House demands in order to receive a case that it does not want to try.
Pelosi is more likely to prompt a change in the Senate rules to deter this and future gaming of the system by dropping the courtesy of waiting for a House submission of managers. That would be a tragedy, since it is a long tradition going back to England, and courtesies like civility are now rare in Washington. Pelosi would have better served the House by taking the time to build a proper case for removing Trump. Instead, however, she went for a short investigation to fulfill a pledge to impeach by Christmas, and then complained that the Senate might not call witnesses that the House failed to compel to testify. That is the problem of playing chicken by yourself. Your opponent can watch you drive over a cliff of your own choosing.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.