Pelosi’s half right constitutional claim leaves the House all wrong:
“Harvard law professor Laurence Tribe penned a Sunday column in support of House Speaker Nancy Pelosi’s refusal to submit House articles of impeachment to the Senate for trial. Tribe declares this strategy is not just constitutional but commendable. That view may be half right on the Constitution, yet 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 House’s rush to impeach.
As a threshold matter, Tribe dedicates much of his column to a point on which I entirely agree. We both have criticized the position of Harvard professor Noah Feldman (who testified with me in the House Judiciary Committee’s impeachment hearing) that Trump has not been impeached. Feldman insists impeachment occurs only when articles and a slate of House trial managers are submitted to the Senate. 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 those hapless 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 of Representatives manipulating the system, the Senate could change its rules and simply give the House a date for trial and declare a default or summary acquittal if House managers do not appear. It is the list of House trial managers that is needed for Senate proceedings to commence.
The “Standing Rules of Procedure and Practice in the Senate When Sitting On Impeachment Trials” are triggered by “notice from the House of Representatives 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 had 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’s rules.
Professor Tribe calls it “utter nonsense to accuse Speaker 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. Indeed, Tribe was outraged — appropriately, in my view — when the Senate refused to vote on the Supreme Court nomination of Merrick Garland in 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 for its roster of managers – just as the House shows comity in submitting an impeachment without conditions to the Senate. The articles were passed by the House to submit a president for trial, not to empower Speaker Pelosi to unilaterally use impeachment as a means to coerce an equal house. Nevertheless, Tribe commends Pelosi for her unprecedented delay of the process. What is most remarkable about Pelosi’s stance is how it has already damaged the position of the House – and could create lasting damage for the House as an institution. Not only did House Democrats refuse to subpoena key witnesses like former national security adviser John Bolton but they inexplicably withdrew the subpoena of a key Bolton aide shortly before a court was prepared to rule on it.
The result is a largely inferential impeachment case without the testimony of witnesses with possible direct knowledge of any 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 abandoned by the House. It is a highly ironic position, given the 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, in that case.)
Tribe, who testified with me during the Clinton impeachment hearings, now calls such a trial without witnesses a “sham.” Pelosi’s strategy is unlikely to succeed with the Senate — but it has succeeded in making a mockery of the earlier rushed rationale. It is like a neighborhood watchman calling for urgent police action but then refusing to give any information about a crime in progress until he gets certain assurances on possible trial conditions.
Tribe insists Pelosi’s position is justified given McConnell saying that he will not follow his oath to do “impartial justice,” and Tribe accuses McConnell of a “clear violation” of his oath as a juror. Yet, before the Clinton trial, Democratic senators said the same thing without such vaporous objections. Schumer — who has declared McConnell’s statement “an astonishing admission of partisanship” — actually campaigned on a pledge to not impeach or convict Clinton and dismissed objections to his “pre-opinion” and 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. So, Pelosi is demanding that 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. And all this is being done for the implausible purpose of forcing the Senate to yield to House demands in order to get a case that it does not want to try.
Pelosi is more likely to prompt a change in the Senate’s 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 increasingly rare in Washington.
Speaker Pelosi would have better served the House by taking the time to build a proper case for Trump’s removal. Instead, 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.