House Speaker Nancy Pelosi, D-Calif., has surmised that polls showing overwhelming opposition to President Donald Trump’s impeachment may reflect a misunderstanding as to what “impeachment” means. At her weekly press conference on June 5, she said: “Do you know that most people think impeachment means you’re out of office? Did you ever get that feeling or are you just in the bubble here? They think if you get impeached, you’re gone, and that is completely not true.”
In fact we’ve never removed a president after impeachment and trial in the Senate. Although Richard M. Nixon resigned before a full House vote, the case laid out by the Senate Watergate hearings and then by the House Judiciary Committee was so powerful that Nixon’s guilt was definitively established, and Nixon resigned before the Senate could convict him. In doing so, Congress reaffirmed red lines — obstruction of justice, defiance of subpoenas — upholding our democratic and constitutional norms.
Writing in The Washington Post, constitutional scholar Laurence Tribe argues that the current Congress can achieve the same result. “The House, assuming an impeachment inquiry leads to a conclusion of Trump’s guilt, could choose between presenting articles of impeachment even to a Senate pre-committed to burying them and dispensing with impeachment as such while embodying its conclusions of criminality or other grave wrongdoing in a condemnatory ‘Sense of the House’ resolution far stronger than a mere censure.”
Tribe gives an elegant legal structure to describe what I believe the House is actually doing. The House — and hence the media — got tangled up over what to call its current process. It settled on hearings into “lessons learned” from the Mueller report. It could easily call these “Hearings to Determine if Censure or Impeachment Should be Considered,” as Tribe describes it. Pelosi likes to call it “following the facts wherever they lead” while MSNBC’s Donny Deutsch would “brand” this as hearings into Trump’s criminality.
All of these labels are driving at three critical points:
1 The Senate has already disqualified itself from trying the case insofar as Majority Leader Sen. Mitch McConnell, R-Ky., has prejudged the case (time to move on!); 2 The Mueller report has evidence for multiple counts of impeachment based on obstruction of justice in which all elements of the crime are satisfied; 3 The House has an obligation to uphold our constitutional structure of government and protect it from further harm.
Let me suggest a multistep process.
First, Pelosi should give a speech from the floor reiterating the points above. In particular she should stress that McConnell has disabled the constitutional process by rendering his verdict before trial. (If he were a juror in a civil or criminal case, he’d be dismissed for cause.)
Second, the House Judiciary Committee will proceed with both percipient witnesses and legal experts to lay out instances in which Trump betrayed our democratic process but did not commit crimes (e.g. inviting Russian meddling). This should result in censure by the full House and passage of legislation to criminalize activity of the type Trump committed.
Third, if the House Judiciary determines all the elements of obstruction of justice were present, it will recommend for a vote by the full House a resolution declaring the OLC memo is constitutionally unwarranted and presenting for referral to prosecutors a post-Trump presidency indictment on multiple counts of obstruction.
This is not a process explicitly laid out in the Constitution, but this Senate has corrupted the impeachment process. The House therefore must act as a finder of fact, reaffirm our constitutional norms and tee up the case for post-presidential trial. Republicans can holler and declare this another “witch hunt” but they are powerless to stop it, and if the facts are compelling, will be in the odd position of preventing trial of a man credibly accused of obstruction.
This is not a perfect solution. But it is, I’d suggest, the only one reasonably available when the president may have committed serious crimes and the Senate announces it will stand by him anyway.