Jurisprudence

Will Nancy Pelosi’s Gambit to Withhold Impeachment Charges From the Senate Work?

Nancy Pelosi holds a gavel while standing at a podium in front of an American flag.
Nancy Pelosi presides over the impeachment vote at the U.S. Capitol on Wednesday.
Saul Loeb/AFP via Getty Images

On Wednesday, after the House of Representatives impeached President Donald Trump for abuse of power and obstruction of Congress, Speaker of the House Nancy Pelosi addressed the next steps in impeachment. Normally, this would mean the transmission of the charges to the Senate by House managers acting as prosecutors. Instead, Pelosi said that the House would not appoint managers and send the charges to the Senate until it knew what the trial would look like. Pelosi then went even further, suggesting that the charges might not even make it to the Senate.

“We will make our decision as to when we’re going to send it when we see what they’re doing on the Senate side,” Pelosi said when asked if it was possible that the House might never send the articles to the Senate.

When asked if she could guarantee that articles would be sent some day, Pelosi responded: “That would have been our intention, but we’ll see what happens over there.”

The reason that Pelosi was reluctant to immediately deliver charges to the Senate was that Senate Majority Leader Mitch McConnell has repeatedly promised to work hand-in-hand with Trump’s defense to cook the trial. In addition to saying he would not be an impartial juror and that he would coordinate with Trump’s lawyers, McConnell has stated that he does not want a process that includes witnesses as in past impeachments, and he has suggested that he may block subpoenas for documentary evidence.

As Democratic leaders in both the House and Senate have argued, this would amount to abetting Trump in the coverup of his high crimes and misdemeanors.

“Our founders, when they wrote the Constitution, they suspected that there could be a rogue president. I don’t think that they suspected that you could have a rogue president and a rogue leader in the Senate at the same time,” Pelosi said in a second post-impeachment press conference on Thursday morning.

The move to postpone the transmission of articles of impeachment comes after a proposal in the Washington Post on Monday by Harvard Law professor Laurence H. Tribe about “holding off for the time being on transmitting [articles] to the Senate.” Tribe argued that such a move would “strengthen Senate Minority Leader Charles E. Schumer’s (D-N.Y.) hand in bargaining over trial rules with McConnell because of McConnell’s and Trump’s urgent desire to get this whole business behind them” and would be justified because McConnell’s outlined plan would “fail to render a meaningful verdict of acquittal” and “fail to inform the public” about the full extent of Trump’s wrongdoing.

On Wednesday afternoon, the Washington Post and Politico reported that a sizable group of House Democrats were on board with Tribe’s proposal. House Majority Leader Steny Hoyer told Politico that colleagues had raised Tribe’s article with him as a possible avenue for Democrats.

And the Post reported:

Rep. Earl Blumenauer (D-Ore.) on Wednesday, speaking as his colleagues debated the impeachment articles on the House floor, said that he had spoken to three dozen Democratic lawmakers who had expressed some level of enthusiasm for the idea of “rounding out the record and spending the time to do this right.”

By Wednesday evening, it appeared to be the official House Democratic strategy to delay sending the articles until the Senate process was at least clarified. The idea comes with both upsides and perils. It could put pressure on vulnerable Senate Republicans to force McConnell to come up with rules that might actually result in a more fair and full trial than the one being considered now. According to a poll released by the Washington Post on Tuesday, there is already bipartisan support for a trial that at least includes witnesses, with 71 percent of Americans saying top administration officials should be called to testify. By holding up the trial until the Senate explains its rules, the Democrats can call attention to the gap between public sentiment and McConnell’s plans. They could also win some more time for court cases on questions of the president’s efforts to block all testimony and documents to work their way through the system, which might allow for a fuller record of Trump’s wrongdoing to come to light and open avenues of investigation for additional articles of impeachment.

The strategy also comes with potential downsides. Constitutional scholars who oppose the idea say that it would run against the spirit of the Constitution and make Democrats—who argue that they just impeached Trump in order to protect and uphold the Constitution—look like hypocrites. “It violates at least the spirit of the Constitution to say, ‘We’re impeaching you, but you can’t defend yourself,’ ” Harvard Law professor Noah Feldman, who House Democrats called to testify on high crimes and misdemeanors during their impeachment inquiry, told my colleague Mary Harris.

He continued:

The practical thing, which is really self-destructive is: If the whole argument is that McConnell would be cheating the system if he declined to give a real trial in the Senate, which is a genuine argument—that McConnell will also be violating the spirit of the Constitution unless he does [a fair trial] in the Senate—then for the Democrats to play procedural games by saying ‘You’re impeached, but you’re not really impeached,’ is a terrible way to convince the world that McConnell should [give] the impeachment a fair shake in the Senate.

The withholding plan could also give Republicans another chance to argue that Democrats are obsessed with impeachment and impeachment only, to the detriment of everything else. “There is no way in which it makes good political sense for Democrats to be talking about impeachment, impeachment, impeachment into the late spring and early summer. Leaving this thing dangling just makes you look like a sore loser,” University of Missouri School of Law professor and impeachment expert Frank Bowman told me. “Don’t try to change it around and do extra-constitutional tricky business because you’re going to lose.” Bowman also believes that any such effort would not produce the desired result of adding to the record, because there is little evidence that the conservative-dominated Supreme Court would step in to allow court cases to be decided in time to actually advance the Democrats’ case. “You are not going to be able to extract any more evidence out of this administration,” Bowman argued.

Indeed, Republicans immediately—and disingenuously—pounced on the notion that the speaker might withhold impeachment charges from the Senate until a fair trial could be established as a sign that the Democrats’ case was weak.

Trump sent a series of tweets attacked the idea, saying Pelosi was “afraid” to go forward.

Senate Judiciary Committee Chairman Lindsey Graham echoed this attack line. “Nancy Pelosi’s threat to refuse to transmit the Articles of Impeachment to the Senate for disposition is an incredibly dumb and dangerous idea,” he tweeted. “There is a reason one person can’t be Speaker of the House and Senate Majority Leader at the same time!” Sen. John Cornyn on Wednesday added, “We don’t care whether they never come.” And McConnell himself took to the Senate floor to blast the idea. “Speaker Pelosi suggested that House Democrats may be too afraid, too afraid to even transmit their shoddy work product to the Senate,” the majority leader offered. “It looks like the prosecutors are getting cold feet in front of the entire country and second guessing whether they even want to go to trial.”

While some sort of gamesmanship may be necessary to defend the impeachment process from McConnell and Trump, Democrats seem less than fully prepared to defend the delaying tactics. An aide for Senate Minority Leader Chuck Schumer referred me to the House side when I asked about the plan, and Schumer did not mention it in public comments on the Senate floor on Thursday. Pelosi in her press conference on Thursday repeatedly refused to answer a series of questions clarifying the plan. Beyond saying that she needed to know what McConnell’s process looked like before she could decide which and how many managers she would send, she said repeatedly that “I’ve said what I’m going to say” on the subject and “on this subject, I said this is it.”

Finally, the speaker started asking reporters if they had questions about the trade deal she’d just agreed to with Trump or the economy instead of her impeachment strategy. “Any other questions? Because I’m not going to answer any more questions on this,” she said.

On Thursday, Tribe defended his notion and said that it would not entail holding articles with no set endpoint, but merely waiting for the Senate to establish the trial rules. In an email, he told me:

I have not suggested, and the Speaker has not stated, that these articles of impeachment should simply be held indefinitely and never presented to the Senate, although the claim that it would be anti-constitutional to do so is at best debatable because this president in fact had ample opportunity to defend himself in the House despite claims to the contrary. I have argued that the House of Representatives could and should delay sending over the articles until it is clear what the ground rules in the Senate will be. The Speaker is not committing to any particular timeline but is simply invoking the rules requiring the Senate to wait until House managers are appointed before the articles are transmitted to and taken up by the Senate. It is obviously reasonable for the Speaker to wait on appointing house managers until she learns what the ground rules of the trial will be and to insist that it be more than a “trial” in name only.

Meanwhile, as they argue over whether a delay strategy is legitimate or worthwhile, all sides agree that, practically speaking, everything is on hold now anyway. Not even McConnell is willing to pretend that the Senate wants to take up the trial before Friday, when Congress leaves town for the holidays.