Nancy Pelosi's Scheme to Not Send Articles of Impeachment to the Senate Only Works If Mitch Mcconnell Allows It

Nancy Pelosi's Scheme to Not Send Articles of Impeachment to the Senate Only Works If Mitch Mcconnell Allows It

Caricature by DonkeyHotey

Caricature by DonkeyHotey

As I posted last night, in her post-impeachment press conference House Speaker Nancy Pelosi steadfastly refused to say when she would send Articles of Impeachment to the Senate for trial. In fact, she hinted that she may not send them to the Senate at all unless she’s convinced that the process will be “fair.” In Pelosi’s words, “So far we haven’t seen anything that looks fair to us.” Given the way in which the House has conducted itself, you’d think anyone capable of introspection and with a vestigial sense of shame would not have used “fairness” as a critique of any process anywhere.

This idea of the House Democrats preventing an impeachment trial and inevitable acquittal by the Senate seems to have been birthed by Laurence Tribe. See Laurence Tribe Throws Nancy Pelosi a Lifeline by Giving Her an Off-Ramp From Impeachment. The idea at the crux of this theory is that the Democrats control the process. They get to vote on impeachment. They get to tell the Senate how to conduct the trial. If the Senate doesn’t comply, then the Articles of Impeachment lie fallow.

This is is how Politico describes it

Though the House adopted two articles of impeachment charging Trump with abuse of power and obstruction of congressional investigations, it must pass a second resolution formally naming impeachment managers to present the case in the Senate. That second vehicle triggers the official transmission of articles to the Senate.

By delaying passage of that resolution, Pelosi and top Democrats retain control of the articles and hope to put pressure on Senate Majority Leader Mitch McConnell to adopt trial procedures they consider bipartisan.

The underlying theory, of course, is nuts.

It confuses House procedure with Constitutional requirements. It presumes that House procedure takes precedent over Senate procedure. The Constitution is silent on the impeachment process beyond giving the House the power to impeach and the Senate the power to conduct the trial. There is no Constitutional requirement that there be “impeachment managers” or that the Articles of Impeachment be formally transmitted to the Senate. The House has impeached President Trump. That’s it. It’s Constitutional function is at an end. Any further involvement is a matter of negotiation with the Senate.

he Senate could easily adopt a rule to the effect that the House passing Articles of Impeachment triggers the process for a trial in the Senate with no further House action. There is no requirement that the Senate wait until the House appoints “impeachment managers.” There is certainly no obligation by the Senate to allow those “managers” to address the Senate or even have access to the Senate. In fact, Mitch McConnell has exactly as much authority to try this impeachment without any input from the House as the House has to refuse to send the Articles of Impeachment to the Senate.

In short, Pelosi’s gambit is, well, toothless. It has no legal power. It is simply posturing. The only way this scheme works is if Mitch McConnell rolls over and plays dead.

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