U.S. House Speaker Nancy Pelosi, after holding a vote to impeach President Donald Trump, has yet to have send the impeachment articles to the Senate. According to many in the mainstream media, this brilliant bit of strategy gives her leverage since it would force Senate Majority Leader Mitch McConnell to provide a fair trial in the Senate. But is it really?
First and foremost, according to the Democrats’ own impeachment witness, Harvard law professor Noah Feldman, Trump IS NOT impeached until the articles are sent to the Senate, and “an indefinite delay would pose a serious problem.” In other words, “If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.”
Should the House send the impeachment articles—I personally cannot see this not happening—McConnell has said he wants two resolutions, one to deal with procedure and one for potential witnesses, similar to what Democrats and Republicans agreed to in the impeachment trial of President Bill Clinton. He is not rejecting witnesses out of hand, but wants each side to present their case before a majority vote is held on witnesses.
But Democrats say they want an agreement on specific witnesses before opening arguments are made. Sen. Minority Leader Chuck Schumer argued on Monday that the Senate needs to hear from Secretary of State Mike Pompeo and former advisor John Bolton, especially in light of a newly published New York Times report that both men urged Trump not to withhold the Ukraine aid.
Of course in order to decide whether or not to impeach, Senators needs to hear from these witnesses.
A second key factor in Pelosi’s decision not to sent the articles one to the Senate is that she could utilize the House subpoena powers to compel these fact witnesses to appear before her chamber, where she makes the rules.
As is, the subpoenas would be fought in a regular district court, appealed to a circuit court, then to en banc review, and finally to the Supreme Court. The point is that sitting on articles of impeachment does not get past that for them. They would actually have to prosecute the impeachment.
Nancy Pelosi could have allowed the executive privilege claim to be tested in the courts. Instead, she rushed the vote on an artificial timeline “before Christmas,” twisting the arms of members in purple districts and alienating moderate Democrats in the process. Despite Pelosi saying: “[The impeachment] has absolutely nothing to do with politics,” there are thirty freshmen Democrats who were elected in 2018 in districts Trump carried in 2016. Now they are getting shouted down at townhalls over their impeachment vote.
What is Pelosi and the Democrats hoping do gain in this impasse? They would have taken a partisan vote for no effect. This will annoy Trump supporters and some people on the fence about Trump. And it only highlights the fact that the Democrats could impeach but were not doing so to Trump opponents. Who then may see no reason in voting against Trump and for Democratic candidates.
Essentially, an unfinished is a failed impeachment in effect. It leaves Trump in office, giving him more political clout in accusing the Democrat-controlled House of a witch hunt. If it were not a witch hunt, they would impeach the president and present the full evidence to the American people—the hold up and insistence of having the Senate hear other witnesses that could have been heard in the House communicates weak grounds for impeachment.
Pelosi had said that President Trump is a threat to democracy and he is a threat to national security. As foreign policy and national security reporter Barbara Boland says, if believes that, how can she now sit on the very same articles until the Senate agrees to do things her way? Suddenly there is no urgency to impeachment. Again, the insistence on specific witnesses appearing in the Senate trial also points to the weaknesses in the House case.
Most view it a foregone conclusion that the Republican-controlled Senate will acquit. No leverage is gained in this delay, but the four Democratic senators running for president will be seriously impeded by a delayed trial, given that they face the Iowa caucuses at the beginning of February.
Pelosi has said that Trump, McConnell and Attorney General William Barr have “gone rogue.” Yet the way she has carried this bad soap opera in believing that she can dictate how impeachment will unfold in the Senate that is roguish of all. And for the time being, it discloses that the impeachment trial and vote in the House is about politics after all.