Speaker Nancy Pelosi has delayed submission of the House-passed impeachment articles against President Trump to the Senate. Reportedly, this is based in part on advice from Harvard law professor and prominent Trump resister Laurence Tribe. The ostensible reason for the delay is concern, arising from statements by Mitch McConnell and others, that the Senate will not give the articles fair and impartial consideration. It’s somewhat surprising that House Democrats would expect anything but a partisan Senate response to their partisan impeachment. In any event, if Pelosi’s delay is indeed Tribe’s brainchild, the real motive is quite different.
For a long time, well before the Ukraine issues arose, Tribe has been urging Democrats to find a way to effectively impeach Trump while denying him the ability to defend himself in a Senate trial. Tribe’s original proposal was for the House to pass a simple resolution declaring Trump “guilty” of impeachable offenses, an action that would not involve the Senate. (See here for a description and critique of the proposal.) Tribe reasoned that this action would be “deliberately stigmatizing” to Trump by branding him with a “Scarlet I” of impeachment that he would be forced to carry through the 2020 election. The beauty of it, Tribe suggested, was that Trump would have no opportunity to shed his Scarlet I through the “misguided” and “old school” process of a Senate trial called for by the Constitution.
Tribe’s original proposal gained little traction. This is fortunate since it so obviously flouted the Constitution as well as basic considerations of due process and fairness. Unfortunately, Democrats now seem to be thinking of resurrecting it in a slightly different form by attempting to postpone a Senate trial on their impeachment articles indefinitely. This may be a “hail Mary” maneuver that will prove too outrageous to pull off. However, the fact that it is apparently receiving serious consideration doesn’t speak well for the bona fides of this impeachment effort.