It is the scarlet I. The asterisk. The stain that will forever mark the Trump administration, the first thing we talk about when we talk about President Donald Trump.
You’ve probably heard enough of that talk on cable news these past few days, particularly if you venture onto CNN and MSNBC. It’s pretty horrifying stuff. And it’ll be worse if it gets to the Senate — if it gets to the Senate, of course. If it doesn’t, the White House may argue Donald Trump was never impeached.
Lest we forget, House Speaker Nancy Pelosi is threatening to withhold the articles of impeachment from the upper chamber unless they agree to the trial she wants, because she’s suddenly taken a conspicuous interest in fairness and process. If only this interest had appeared a few weeks ago.
“So far we haven’t seen anything that looks fair to us,” Pelosi said during a media conference, adding that “we’ll see what happens over there.”
To which Senate Republicans said, well, sure. Take your time. Not only is this the best-case scenario for the GOP caucus in the upper house, it proves the rigamarole about rushing a sloppy, partisan impeachment inquiry through the House because President Trump was such a threat to democracy that nothing but Mario Andretti-like speed would do was a complete charade.
The White House might like this outcome as well, and not just because the Senate trial is delayed or doesn’t happen. According to Bloomberg, the Trump administration is ready to argue that a failure to deliver articles of impeachment will mean President Trump was never impeached.
On Friday, Bloomberg reported that lawyers will say that the language of the Constitution requires a trial to happen for it to be official.
“The case is a rhetorical one following Wednesday night’s vote to impeach the president on two articles. The U.S. Constitution grants the House of Representatives full authority over impeachment. But the argument is part of an effort by the White House and Senate Republicans to maximize their leverage as lawmakers debate when and how to conduct a trial on charges that the president abused his power to solicit an investigation into political rival Joe Biden, and obstructed the congressional investigation into the matter,” the news outlet reported.
“The White House legal theory, according to a person familiar with the legal review, is that if Trump has been officially impeached, the Senate should already have jurisdiction. Backers of the theory would argue that the clause of the U.S. Constitution that gives the Senate ‘the sole Power to try all Impeachments’ indicates that the impeachment isn’t formalized until the House reported the charges to the upper chamber.”
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It noted the president is dropping hints he might be on board with this strategy.
“To me, it doesn’t feel like impeachment,” the president said Thursday in the Oval Office, adding that it was “unconstitutional” for Pelosi to refuse to turn the articles of impeachment over to the Senate.
This can’t just be dismissed as some fringe theory being pushed by the White House, either. Some of you may remember Noah Feldman from the House Judiciary Committee impeachment inquiry hearing where four legal experts — three of them in favor of impeachment, of course — testified on the matter. If you can’t quite place him, he was the guy on the far right (not politically, obviously) who’ll inevitably be played by Benedict Cumberbatch when “Truer Grit: The Jerrold Nadler Story” hits theaters.
Anyway, Sherlock doesn’t think that impeachment has necessarily happened if the articles aren’t delivered to the Senate, either.
“The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work,” Feldman wrote in an opinion piece for Bloomberg on Friday.
“But an indefinite delay would pose a serious problem. Impeachment, as contemplated by the Constitution, does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.
“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.”
He also added that “what would make that trial fair is a separate question, one that deserves its own discussion. But we can say with some confidence that only the Senate is empowered to judge the fairness of its own trial — that’s what the ‘sole power to try all impeachments’ means.”
This is a legally fraught area, obviously, especially given the small number of people who have been impeached. There’s not a lot of guiding jurisprudence. That said, if this never goes to the Senate, that’s a gift to Republicans anyway — and it could mean the administration could argue impeachment would never happen.
Think of it: That asterisk would go away, that scarlet I scrubbed off. All of it is potentially gone over as a power play.
The Democrats already know they’re not going to get a conviction in the Senate, not with this evidence. The Democrats went through this whole mess and likely doomed a lot of their freshman class to defeat, given they flipped districts that aren’t too jazzed about impeachment. Heck, one of them — Rep. Jeff Van Drew of New Jersey — is leaving the party for precisely that reason. The president’s poll numbers are up.
If Pelosi’s going to do all this and risk losing the impeachment because of a demand for a fair process her caucus didn’t provide Republicans, she’s going to have a lot of questions from her caucus.
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