So unless you’ve been in a coma or have been roaming the mountains of Tibet for the past month, you’ve heard that House Speaker Nancy Pelosi has opted not to send the articles of impeachment voted on and ratified by the US House of Representatives, over to the US Senate for trial and at first glance it seems to be a good strategy. Senate Majority Leader Mitch McConnell has indicated that he will not be an impartial party in the impeachment process when he stated “Everything I do during this, I'm coordinating with the White House counsel. There will be no difference between the president's position and our position.” That flies in the face of any sense of impartiality envisioned by the founding fathers who penned the Constitution, which outlines the rules of impeachment of a US president. US Senator Lindsey Graham (R-SC), also indicated that his mind was already made up regarding Trump’s impeachment trial when he said “I don’t need any witnesses,” he said, since "I'm not trying to hide the fact that I have disdain” for the whole process. Given that the Republicans hold a three vote majority in the US Senate and that the Senate Majority Leader wields significant influence over the impeachment trial process, it doesn’t make good tactical sense to immediately send the articles of impeachment over to the senate and expect a fair trial.
Although President Trump has stated, on twitter, that he wants a fair trial with witnesses and the opportunity to testify to prove his innocence, Leader McConnell knows the potential perils of such an exercise. Allowing White House personnel to testify will likely make new information available that could potentially strengthen the case for impeachment. Fourteen witnesses were prevented by the White House from testifying during impeachment proceedings in the House and none of the documents requested by the House committee were produced by the White House for the impeachment procedure despite subpoenas. All of those documents and witnesses could potentially be available during a senate trial. White House Chief of Staff, Mick Mulvaney, former National Security Adviser, John Bolton, Sec’y of State, Mike Pompeo and former White House Counsel, Don McGahn, could all potentially provide damning testimony during the senate trial that could damage Trump. That said, a fair and impartial trial airing all of the evidence is exactly what the founding fathers envisioned when outlining the rules for impeachment in the US Constitution, so why not get everything out in the open?
Given the partisan position of the Republican led senate, the Democratic Party has taken on the role of guardians of our Constitution and the very tenants of our democracy. Until Speaker Pelosi has specific guarantees for a fair trial in the senate that allows for testimony of witnesses and for subpoenaed White house documents made available for Senate review, withholding the articles of impeachment from the Senate is quite frankly, a very shrewd strategy and an ace in the hole card that few knew Speaker Pelosi had to play. Leader McConnell claims that he is content to wait as long as it takes for Speaker Pelosi to send the impeachment articles to the Senate, and interestingly enough the Constitution does not specify a timeline for when the articles must be sent. Although a curious type of precedent exists in this matter in that after the death of Supreme Court Justice Antonin Scalia, when a seat became vacant on the US Supreme Court that was to be filled by President Obama, Leader McConnell refused to hold a hearing on Obama’s Supreme Court nominee Merrick Garland. McConnell effectively held the seat open for 293 days until Garland’s appointment expired and the country had elected a new president. This was unprecedented and widely criticized by constitutional scholars from both parties, but the strategy worked. Trump won the election and appointed a conservative justice to the open seat. Consequently, Pelosi could hold up the impeachment process well into 2020. And although McConnell does not seem to be worried about the delay, the gray cloud of a House Impeachment hanging over Trump on the campaign trail could prove to be a nightmare while trying to court swing voters and Independents to join the Trump train in 2020. There would be simply too many questions left unanswered and too many contradictions to address.
The rub of all of this is that Trump has said he wants a fair trial with witnesses and documents made available for the Senators to consider. But Leader McConnell won’t agree to the terms that both the President AND the Speaker of the House have requested. Until McConnell does, the unanswered questions and specter of impeachment will continue to hang in the air and rob the President of being able to claim a victory regarding impeachment on the campaign trail.
At this point the two parties are at a stalemate, but time is on the side of Speaker Pelosi and the Democrats in that the longer this drags on, the worse the President and the Republican majority senate will look. A fair and impartial trial is a cornerstone of American democracy. Every American citizen can identify with that concept and will agree on its importance in our justice system in this country. What person accused of a crime should not have the right to a fair and impartial trial by jury, and the right to call witnesses for testimony and to testify in their own defense? It’s literally the American Way, even though our sometimes-corrupt criminal justice system doesn’t always produce that outcome. If the Democrats can hold fast to their position, push their talking points of a need for a fair and impartial trial with witnesses and documents, and insist upon those elements to be part of the Senate Impeachment trial, then Leader McConnell, the Republican Party and particularly President Trump will be put into a position where anything less would be considered un-American.
Thus far Speaker Pelosi has been masterful in holding her caucus in line in that she amassed 230 votes for the impeachment of President Trump, which is the most for any presidential impeachment in history. If she’s able to implement a Machiavellian strategy like this she will be long remembered as the most cunning, strategic and effective House Speaker in congressional history. Time will tell and the clock is ticking.