This option needs to be taken seriously now that Majority Leader Mitch McConnell (R-Ky.) has announced his intention to conduct not a real trial but a whitewash, letting the president and his legal team call the shots.
Such an approach could have both tactical and substantive benefits. As a tactical matter, it could strengthen Senate Minority Leader Charles E. Schumer’s (D-N.Y.) hand in bargaining over trial rules with McConnell because of McConnell’s and Trump’s urgent desire to get this whole business behind them. On a substantive level, it would be justified to withhold going forward with a Senate trial. Under the current circumstances, such a proceeding would fail to render a meaningful verdict of acquittal. It would also fail to inform the public, which has the right to know the truth about the conduct of its president.
Some have asked what would give the House power to take the step of impeaching the president but withhold pressing its articles of impeachment in the Senate. This question assumes that everything the House opts not to do, every option it chooses not to exercise, requires that it locate affirmative power for its inaction in some textual snippet in the Constitution.
I’d turn the question around: Where in the Constitution or in the history or theory of its interpretation is that principle located? In fact, it is entirely made up, found nowhere in our constitutional constellation. And it is out of place when considering how the House and Senate are to interact in cases of impeachment, particularly cases in which a president is being impeached for defying his oath and the Senate is threatening to defy its oath as well.
Consider the case of a prosecutor armed with a grand jury indictment who learns that the fix is in and that the jury poised to consider the case is about to violate its oath to do impartial justice. In that situation, the prosecutor is under no affirmative legal obligation to go forward until the problem is cured and a fair trial possible. So, too, the House, whose historical role is to prosecute articles of impeachment in the Senate after exercising its “sole” power to impeach, is under no affirmative constitutional obligation to do so instantly. That is especially true when the majority leader has made clear that he is, for all practical purposes, a member of the defense team.
In 1787, the year our Constitution was written, Catherine the Great traveled to Crimea in Ukraine — yes, that Crimea, the one Vladimir Putin occupied by illegal force — where her former lover Grigory Potemkin had built a fake village to impress the Empress. It seems suitably ironic for McConnell to propose building a Potemkin “trial” to exonerate Trump. But irony is no substitute for common sense.
This common sense — that the public has a right to observe a meaningful trial rather than simply learn that the result is a verdict of not guilty — has constitutional dimensions. In 1980, then-Chief Justice Warren E. Burger, a Richard Nixon appointee, wrote that the media and the public have a constitutional right to attend and observe a criminal trial — despite the opposition of the accused, the defense team and even the prosecutor and the trial judge.
In Richmond Newspapers v. Virginia — the first case I ever argued in the Supreme Court — the court found that this right inheres in our system of government, a system whose openness is embodied only partly in the First Amendment. The fact that the right to observe trials even where all the parties would prefer a private resolution is nowhere enumerated in the Constitution’s text, the Burger opinion reasoned, is of no moment, given the Ninth Amendment’s directive that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This instruction on how to understand our Constitution is more than a reader’s guide. It’s a reminder of all that is threatened by a lawless president, one who treats the Constitution as no big deal, impeachment as illegitimate and the powers of the presidency as limitless.