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Nancy Pelosi, Not Trump, Is Provoking A Constitutional Crisis

Pelosi and democrats call for impeachment

House Speaker Nancy Pelosi’s decision not to send the articles of impeachment to the Senate for trial on the pretext that Senate Majority Leader Mitch McConnell won’t conduct the trial in a manner approved by House Democrats introduces a novel and dangerous dynamic to the impeachment of President Trump—namely, a constitutional crisis, not between the legislative and executive branches, but between the House and the Senate.

Under the Constitution, the House has the sole power of impeachment and the Senate has the sole power of conducting a trial. Although the Constitution doesn’t say the House must go through a formal process of “transmitting” the articles of impeachment to the Senate, precedent and Senate rules dictate that the Senate does not take up measures passed in the House until they have been certified and transmitted, and that it won’t take up an impeachment trial until the House appoints impeachment managers (or prosecutors) for the trial.

This Pelosi has refused to do. She is in effect asserting the primacy of the House over the Senate, insisting that the Senate conduct an impeachment trial on terms dictated by the House.

The pretext for her gambit are a few comments this week by McConnell that he’s “not an impartial juror,” and that he’s taking his cues from the White House. “The House made a partisan political decision to impeach,” McConnell said Tuesday. “I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.”

Of course, Pelosi and the other House Democrats have not been impartial, either. Pelosi seized on McConnell’s comments as evidence that any Senate trial would be a kangaroo court, a partisan and unfair show-trial whose outcome is predetermined. That is of course precisely what Republicans have said about House Democrats’ impeachment inquiry, the outcome of which was inevitable from the moment it was announced.

As my colleagues Sean Davis and Mollie Hemingway noted yesterday, “Pelosi apparently wants to control the Senate process from her perch in the House, a power grab that looks a lot like an abuse of power.” Likewise, her decision to withhold the articles of impeachment from the Senate and not appoint impeachment managers looks a lot like obstructing the Senate. House Democrats impeached Trump for abuse of power and obstruction of Congress—the very things Pelosi now appears to be doing.

What Would Democrats Consider a Fair Senate Trial?

What Pelosi hasn’t said is what she wants from McConnell. An apology? Assurances that he didn’t really mean what he said? She hasn’t yet indicated what procedures would meet her standard for fairness, only that she is working with House leaders and Senate Minority Leader Chuck Schumer to determine when the articles should be submitted.

Schumer has laid out a detailed plan for the Senate trial, proposing each side get equal time to lay out its case and calling on four top White House officials to testify, including Trump’s acting chief of staff Mick Mulvaney and former national security advisor John Bolton. It’s worth nothing that as a freshman senator in 1999, Schumer derided the notion of witnesses testifying in the impeachment trial of President Bill Clinton as “political theater.”

Indeed, there was no witness testimony in Clinton’s impeachment trial. Senators had to rely on hearing excerpts from depositions of just three witnesses, and Democrats at the time objected even to this. In fact, in 1999 Schumer and every Senate Democrat except one voted to dismiss the articles of impeachment against Clinton without a trial.

It’s possible McConnell and Senate Republicans will take that route themselves, given the lack of evidence against Trump emerging from the House’s impeachment inquiry. Speaking on the Senate floor earlier this week, McConnell said the impeachment vote in the House “did not reflect what had been proven; it only reflects how they feel about the president. The Senate must put this right. We must rise to this occasion. There is only one outcome that is suited to the paucity of evidence, the failed inquiry, the slapdash case.” Later, he lambasted Democrats for being “too afraid to even submit their accusations to the Senate and go to trial.”

We’re In Uncharted Waters Now

It’s not just Pelosi driving this but the entire Democratic leadership. On Thursday, Democratic Majority Whip Rep. James Clyburn said he would be willing to withhold the articles of impeachment from the Senate indefinitely—“as long as it takes.”

The problem for Pelosi and the Democrats is that they have thrust the nation into uncharted waters and provoked a showdown with the Senate without building up any credibility for their cause. Pelosi has said she “doesn’t care what the Republicans say.” Well, fine, but Republicans are saying what a growing number of Americans are thinking, which is that this impeachment is nothing but a cynical exercise in partisan politics.

The outcome of the House impeachment inquiry was pre-determined, and everyone knows it. So is the outcome of the eventual Senate trial.

Whatever one thinks of President Trump, almost no one thinks his impeachment has been fair, sober, and free from political bias. No one buys the play-acting of House Democrats dressed in black and insisting they are “prayerful” and “solemn” about impeachment—a fiction that was exposed when Pelosi had to silence the cheering that broke out among Democrats when she announced the passage of the first article of impeachment Wednesday night.

Episodes like this, repeated ad nauseum for months now, are how you get polls showing that support for impeachment has fallen since Democrats opened their inquiry in October and that supermajorities of Americans now agree that impeachment is more important to politicians and the media than it is to them.

What happens next is anyone’s guess. Having conducted a thoroughly partisan impeachment inquiry in the House, Democrats want the Senate to pretend the process was fair and legitimate, and conduct a trial according to their terms. What if McConnell can’t get Pelosi to sign off on procedures for a Senate trial? Having denied Trump due process in the House, are Democrats also willing to deny him a speedy trial in the Senate, rights guaranteed to all Americans in the Fifth and Sixth Amendments?

We don’t know what will happen next, but we do know that Pelosi and the Democrats have introduced a new and virulent strain of partisanship to American politics, one they have relentlessly pursued since Trump won the 2016 election and that now risks provoking a constitutional crisis.