Ever since Democratic complaints arose about Mitch McConnell’s adamant refusal to call witnesses in a Senate impeachment trial, and his pledge to be in “total coordination” with Trump’s lawyers, the idea has circulated that Nancy Pelosi could put pressure on McConnell to change his partisan ways by withholding the articles of impeachment the House passed on Wednesday and delaying Senate action. Immediately after that House vote, Pelosi herself fed this speculation, according to Politico:
Speaker Nancy Pelosi refused to commit Wednesday to delivering articles of impeachment to the Senate, citing concerns about an unfair trial on removing President Donald Trump from office.
“So far we haven’t seen anything that looks fair to us,” Pelosi told reporters at a press conference just moments after the House charged Trump with abuse of power and obstructing congressional investigations. “That would’ve been our intention, but we’ll see what happens over there.”
Pelosi’s comments, which echo suggestions raised by other Democrats throughout the day, inject new uncertainty into the impeachment timetable and send the House and Senate lurching toward a potential constitutional crisis.
The idea raises two questions. The first is whether it’s constitutional for Pelosi to just sit on articles of impeachment. Democrats who like this idea are quoting a Washington Post op-ed earlier this week by every donkey’s favorite constitutional law professor, Harvard’s Lawrence Tribe, giving this strategy the thumbs-up. That may be good enough for Pelosi at least to make the threat.
But the second question is whether McConnell would rise to the bait and sit down with Chuck Schumer to devise a full and “fair” Senate impeachment trial. And the initial, mocking, reaction of Senate Republicans suggests they’d just as soon call Pelosi’s bluff and let hell freeze over before holding a trial at all, as reported in The Hill:
“Are they threatening to withhold the articles of impeachment?” he told The Hill. “That doesn’t accomplish their intended goal. That just means we won’t be having a trial.”
McConnell, asked by a Washington Examiner reporter about a potential delay, similarly shrugged it off, saying, “I’m in no hurry.”
Trump himself joined in on Thursday morning:
To be clear, if Pelosi sits on the articles and McConnell says “fine,” and they remain at loggerheads, in theory Trump could leave office in 2021 or 2025 or whenever he’s forced to vacate the White House — untried. There’s no real Democratic leverage unless it produces some scenario Trump or Republicans fear. Yes, Senate Republicans want to look like they are discharging their constitutional duty, but they have no constitutional duty to hold a trial until they receive articles of impeachment.
Politico’s account seems to indicate that veteran House Democrat Earl Blumenauer of Oregon is the Johnny Appleseed of the withhold-the-articles idea, and he seems to believe a delay would be positive in itself:
Rep. Earl Blumenauer (D-Ore.) said he’s approached every member of House leadership about the idea and received responses ranging from interest to outright support. He said Pelosi, in particular, “indicated she was interested and considering it …”
Blumenauer argued that the House could use the delay to continue to build on its evidence for impeachment, and possibly to score additional legal victories that could unlock troves of new evidence and witness testimony that the Trump administration has withheld from Congress. Some of those court cases could be decided within weeks.
“You can continue to build the record, you can get information and you argue for fairness and don’t surrender until it’s clear that that is in the best interest of the process,” Blumenauer said.
But this argument for an extended impeachment investigation calls into question why Pelosi and House Democrats insisted on getting articles of impeachment to the floor so quickly in the first place, which Republicans have been complaining about throughout the process.
Unless I’m missing something, this all looks like a gambit that will roil Washington for a few days unless Trump or Senate Republicans show fear, and then the articles will roll over to the Senate in time for the January trial we’ve expected, with or without any bipartisan agreement on timing and witnesses.