Thursday, December 19, 2019


Here's what I wrote on Monday, in response to the notion that House Democrats should pass articles of impeachment and then hold them without transmitting them to the Senate:
Trump won't care. He'll portray an aborted impeachment as a non-impeachment. He'll say Democrats got cold feet because they knew they were going to lose in the Senate. (Right and wrong don't matter to Trump or to Trump's base, only winning and losing.)
I expected this to be an argument made by Trump alone, the stuff of tweets or rally speeches. As it turns out, the president has attorneys working to make it reality:
Lawyers close to President Donald Trump are exploring whether House Speaker Nancy Pelosi’s decision to temporarily withhold articles of impeachment from the Senate could mean that the president hasn’t actually been impeached....

The White House legal theory, according to a person familiar with the legal review, is that if Trump has been officially impeached, the U.S. 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.

Speaking Thursday in the Oval Office, Trump said it was “unconstitutional” for Pelosi not to submit the articles of impeachment to the Senate.

“To me, it doesn’t feel like impeachment,” Trump added.
In a few days, we'll have Jonathan Turley and Alan Dershowitz telling us that the president is right -- if the articles don't go to the Senate, he hasn't been impeached.

We already have Republicans claiming that Democrats have cold feet.

And there's this:
Mitch McConnell threatened on Thursday to cancel Donald Trump's impeachment trial in the Senate if 'scared' Nancy Pelosi refuses to send him the formal articles of impeachment that Democrats passed Wednesday night....

McConnell, who previously said he wanted to hold a trial in January, responded: 'It's beyond me how the Speaker and Democratic Leader in the Senate think withholding the articles of impeachment and not sending them over gives them leverage.'

'Frankly, I'm not anxious to have the trial. If she thinks her case is so weak she doesn't want to send it over, throw me into that briar patch.'
And this:

I understand what Pelosi is doing. I know she's withholding the articles to get leverage, specifically concessions on the conduct of the Senate trial. I know she's not planning to withhold them permanently.

But she's attempting to shame people who are incapable of shame.

Presumably she knows something I don't. It does appear that, for some reason, Republicans want part of a trial, at least -- they want the House prosecutors to make their case in the Senate before Senate Republicans summarily dismiss the charges.

Maybe that's enough leverage for Pelosi to extract some concessions. But I could just as easily imagine McConnell refusing to concede anything, while the entire GOP and right-wing media coalesce around the assertion that with the articles still in the House, the president hasn't been impeached at all.


UPDATE: I probably should have seen this coming:
Trump Isn’t Impeached Until the House Tells the Senate

According to the Constitution, impeachment is a process, not a vote.
It's not from a pro-Trump lawyer -- it's from Noah Feldman, who testified before the House Judiciary Committee in favor of impeachment.

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