Relevant point
Republicans have handed Democrats a political gift by making it clear they plan on acquitting President Trump after the most minimal Senate impeachment trial possible. The question is whether Democrats can seize this opportunity. In a divided Congress, House Democrats control one important weapon. According to many legal experts, they can withhold the articles of impeachment from the Senate — meaning that no impeachment trial can occur until the Republican Senate leadership agrees to some approximation of a fair and thorough process.
In the face of this obvious bad faith, Senate Minority Leader Chuck Schumer has
proposed a set of rules that were agreed upon by both parties for Bill Clinton’s impeachment trial in 1999. There is no legal or ethical reason not to apply those rules to Trump’s trial. Clinton, after all, was accused of lying under oath about an extramarital affair;Trump is accused of trying to blackmail a foreign leader into helping him discredit a political rival.
We have no idea how McConnell will respond to Schumer’s not-so-bold suggestion that Democrats and Republicans should be held to the same standard. Harvard Law professor Laurence Tribe recently
tweeted that if McConnell “rejects these reasonable ground rules & insists on a non-trial, the House should consider treating that as a breach of the Senate’s oath & withholding the Articles until the Senate reconsiders.” He
later clarified in a follow-up tweet that “by ‘withholding’ the Articles I don’t mean not voting for them — I mean voting for them but holding off on transmitting them to the Senate.
Tribe elaborated on this idea further in an email to Salon, comparing this process to a corrupt trial in criminal court:
Imagine this scenario: A prosecutor about to obtain a grand jury indictment learns that the foreman of the trial jury (whose members, for purposes of this thought experiment, we’ll have to assume are known in advance, as is the case with the Senate though not in the typical criminal case) has threatened to let the accused decide how the trial will be conducted — and has intimated that it will be a “trial” in name only, one orchestrated in close coordination with defense counsel. Other key jurors also announce that they don’t intend to listen to any evidence but have already made up their minds to acquit.
Republicans seem to believe they make Trump seem innocent — in the face of widespread public disapproval of his actions — by refusing to take the accusations against him seriously. Yet by more or less revealing that they don’t care what Trump did, and will give him a pass no matter what, Republicans have offered Democrats an excellent opportunity to spin a Senate acquittal of Trump as proof that his entire party has been corrupted by him.
That was not exactly Tribe’s point, which was more closely tied to legal procedure. In his scenario, he said, a scrupulous prosecutor would refuse to go forward with a fixed trial, and would instead ask the judge to replace the corrupt foreman, along with any other jurors who had clearly made up their minds about the defendant’s guilt or innocence. That isn’t likely to happen in this case, he continued:
In the world of impeachment trials, it’s unrealistic to imagine that the presiding judge, here the Chief Justice of the United States, would grant any such motion. The next best solution would seem to be the one I’ve been proposing: The “prosecutor,” here whoever Speaker Pelosi designates as the House Managers, should proceed to pin down the indictment by having the full House vote for the two Articles of Impeachment approved last week by the Judiciary Committee, but should then hold that indictment in abeyance, letting it hang like the fabled Sword of Damocles over the heads of both the president and the Senate Majority Leader and those in his caucus who, like Senator Graham, have admitted they will happily violate their oaths of office and break the special oath they will take for purposes of impeachment.
Tribe concluded that Pelosi should let that sword keep hanging there until McConnell and Schumer can reach agreement “on how to conduct the closest possible approximation to a fair trial under the politically charged circumstances.”
Would such a maneuver be legal and constitutional? Tribe admitted there is no precedent, but argued it would be “fully consistent with the text, structure, history, and purposes of the Impeachment Power as outlined in the Constitution.”