House Speaker Nancy Pelosi (D-Calif.) has announced that she plans to transmit the articles of impeachment to the Senate, but that does not mean she has lost in the seeming standoff with Senate Majority Leader Mitch McConnell (R-Ky.) over whether to call witnesses at the Senate trial. McConnell has said “there’s no chance the president’s going to be removed from office” and “there will be no difference between the president’s position and our position.” In response, Pelosi still has cards in her hand — if she plays them — because the House approved two articles of impeachment against President Trump.
The first article of impeachment effectively charges the president with shaking down Ukraine; the second impeaches him for his unprecedented obstruction of Congress. That gives the speaker room to maneuver. She could choose to tweak her announcement and send only the second article, on obstruction, for trial. Or she could transmit them both — along with a House-approved provision advising the Senate that if it fails to obtain adequate witnesses and documents, the House will reopen the investigation into Article I and subpoena that material itself.
Separating the two articles — our preferred approach — would make perfect sense. When it comes to the second article, all the evidence about Trump’s obstruction is a matter of public record. There’s nothing more to add, so the second article is ripe for trial. But as to the first, although there is plenty of evidence demonstrating Trump’s guilt, his obstruction has prevented all of the evidence from coming to light.
Since the House voted to approve the articles of impeachment last month, new revelations of Trump’s involvement have emerged, including emails showing that aid was ordered withheld from Ukraine 91 minutes after Trump’s supposedly “perfect” phone call with President Volodymyr Zelensky. Trump’s former national security adviser, John Bolton, has said he is willing to testify before the Senate if subpoenaed, and Bolton’s lawyer has said he has new information, yet McConnell has balked at assurances that Bolton would be called.
How can one conduct a “trial” without knowing this evidence? As lawyers, we have never heard of a trial without witnesses. Both past impeachment trials of presidents featured witnesses — including 41 in the impeachment of President Andrew Johnson. And the lack of witnesses is particularly striking given the shell game Trump and his Republican colleagues have played. In the House, Trump prevented executive branch employees from testifying, but said some of them would be able to testify in the Senate. Now that we are in the Senate, Republicans say these folks should have testified in the House. Lewis Carroll would be pleased.
Other senators, including Florida Republican Marco Rubio, have said that the record in the Senate must be limited to the evidence generated in the House. This is a terrible argument, but it underscores the need for the House either to obtain a commitment from the Senate to gather the evidence or to warn that it will do it itself.
McConnell claims he is adhering to the rules in the impeachment of President Bill Clinton. But there’s one big difference: Clinton didn’t gag all the witnesses and documents in the House and the predecessor investigation; as a result, there was a full record before the Senate. And there were, in fact, witnesses who were deposed as part of the Senate trial nonetheless. This time, the reason this evidence wasn’t generated in the House has everything to do with the defendant in the impeachment case itself. That is the case for sending up the second article now, to put the spotlight on Trump’s obstructionism.
The core of the second article is captured by the principle that no one is above the law in the United States. Indeed, no president, not even Richard M. Nixon, has ever tried to block all witnesses and documents in an impeachment inquiry. Nixon thought about it but backed down quickly. The impeachment here is not just about Ukraine. It’s about a president who thinks he does not even have to submit to a constitutionally authorized congressional inquiry. This stance is particularly galling because Trump’s attorney general, William P. Barr, gave Trump a temporary get-out-of-jail-free card after special counsel Robert S. Mueller III found several instances of potential obstruction of justice; Barr claimed that the president could only be impeached, not indicted. Yet now the shell game continues — with Trump turning around and saying he can’t be impeached and investigated either.
Holding the first article back and letting the second go forward would be a powerful and precise response to McConnell’s unprecedented attempts to avoid committing to a real trial. It makes practical sense but also highlights what’s at stake here. Trump would be forced to undergo two impeachment trials instead of one — but that’s a fair price for him to pay for his attempts to hide evidence from the American people.
If, alternatively, Pelosi sent both articles up with a formal note that the House would step back in if the Senate failed to proceed appropriately, that would be a fair price for McConnell to pay. The speaker would, essentially, be guaranteeing that Trump would face another investigation because of McConnell’s insistence on a sham trial, one that fails to call willing witnesses or deal with relevant, if potentially damaging, evidence.