Laurence H. Tribe is the University Professor of Constitutional Law at Harvard and the coauthor, most recently, of “To End a Presidency: The Power of Impeachment.”
Rightly or wrongly — I think rightly — much of the House Democratic caucus, at least one Republican member of that chamber (Rep. Justin Amash of Michigan) and more than a third of the nation’s voters disagree. They treat the impeachment power as a vital constitutional safeguard against a potentially dangerous and fundamentally tyrannical president and view it as a power that would be all but ripped out of the Constitution if it were deemed unavailable against even this president.
That is my view, as well.
Still, there exists concern that impeachment accomplishes nothing concrete, especially if the Senate is poised to quickly kill whatever articles of impeachment the House presents. This apprehension is built on an assumption that impeachment by the House and trial in the Senate are analogous to indictment by a grand jury and trial by a petit jury: Just as a prosecutor might hesitate to ask a grand jury to indict even an obviously guilty defendant if it appeared that no jury is likely to convict, so, it is said, the House of Representatives might properly decline to impeach even an obviously guilty president — and would be wise to do so — if it appeared the Senate was dead-set against convicting him.
But to think of the House of Representatives as akin to a prosecutor or grand jury is misguided. The Constitution’s design suggests a quite different allocation of functions: The Senate, unlike any petit (or trial) jury, is legally free to engage in politics in arriving at its verdict. And the House, unlike any grand jury, can conduct an impeachment inquiry that ends with a verdict and not just a referral to the Senate for trial — an inquiry in which the target is afforded an opportunity to participate and mount a full defense.
Take, for instance, the 1974 investigation of President Richard M. Nixon when the House gave the president the opportunity to refute the charges against him either personally or through counsel and with additional fact witnesses. (Nixon chose to appear only through his attorney, James D. St. Clair.) Following its impeachment proceedings, the House Judiciary Committee drafted particularized findings less in the nature of accusations to be assessed by the Senate — which of course never weighed in, given Nixon’s resignation — than in the nature of determinations of fact and law and verdicts of guilt to be delivered by the House itself, expressly stating that the president was indeed guilty as charged.
It seems fair to surmise, then, that an impeachment inquiry conducted with ample opportunity for the accused to defend himself before a vote by the full House would be at least substantially protected, even if not entirely bullet-proofed, against a Senate whitewash.
The House, assuming an impeachment inquiry leads to a conclusion of Trump’s guilt, could choose between presenting articles of impeachment even to a Senate pre-committed to burying them and dispensing with impeachment as such while embodying its conclusions of criminality or other grave wrongdoing in a condemnatory “Sense of the House” resolution far stronger than a mere censure. The resolution, expressly and formally proclaiming the president impeachable but declining to play the Senate’s corrupt game, is one that even a president accustomed to treating everything as a victory would be hard-pressed to characterize as a vindication. (A House resolution finding the president “impeachable” but imposing no actual legal penalty would avoid the Constitution’s ban on Bills of Attainder, despite its deliberately stigmatizing character as a “Scarlet ‘I’ ” that Trump would have to take with him into his reelection campaign.)
The point would not be to take old-school House impeachment leading to possible Senate removal off the table at the outset. Instead, the idea would be to build into the very design of this particular inquiry an offramp that would make bypassing the Senate an option while also nourishing the hope that a public fully educated about what this president did would make even a Senate beholden to this president and manifestly lacking in political courage willing to bite the bullet and remove him.
By resolving now to pursue such a path, always keeping open the possibility that its inquiry would unexpectedly lead to the president’s exoneration, the House would be doing the right thing as a constitutional matter. It would be acting consistent with its overriding obligation to establish that no president is above the law, all the while keeping an eye on the balance of political considerations without setting the dangerous precedent that there are no limits to what a corrupt president can get away with as long as he has a compliant Senate to back him. And pursuing this course would preserve for all time the tale of this uniquely troubled presidency.