On Wednesday, the House of Representatives voted to impeach President Donald John Trump. Now, as the process moves forward, House Speaker Nancy Pelosi, D-Calif., should consider delaying transmission of the two articles of impeachment to the Republican-controlled Senate — that is, until Majority Leader Mitch McConnell, R-Ky., agrees to a fair trial.
Following the vote, Pelosi noted that she would not be sending the impeachment articles that night. But I would argue that a brief pause is not enough. Pelosi should hold on to the articles until Democratic leadership can ensure a comprehensive, unbiased Senate trial. And the best way to do this is by using what little leverage they have left to compel the White House and McConnell to allow senior administration members to testify.
McConnell’s comments are essentially the equivalent of having a trial where the defendant is coordinating with the jury before the proceeding even begins.
In recent days, McConnell has signaled his intention to conduct a swift proceeding and has rejected a request from Minority Leader Chuck Schumer, D-N.Y., to call the top administration officials whom Trump had blocked from testifying in the House.
Appearing on Fox News, McConnell declared: "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 as to how to handle this to the extent that we can."
In an impeachment trial, the Senate essentially acts as the jury, while the chief justice of the United States is the presiding judge. So McConnell's comments are essentially the equivalent of having a courtroom trial at which the defendant is coordinating with the jury before the proceeding even begins.
But congressional Democrats may have one last chance to try to force the hand of Senate Republicans: holding on to the articles of impeachment. McConnell cannot begin his efforts to exonerate the president until the House officially transmits the articles of impeachment.
For weeks, the White House and congressional Republicans have been complaining that the Democrats' case is based on hearsay. "Their understanding, which is the foundation of the case for the Democrats, was based on secondhand information," House Minority Leader Kevin McCarthy, R-Calif., told reporters on Nov. 14.
Now is the chance to hold lawmakers like McCarthy to their own rhetorical standard. According to a new ABC News/Washington Post poll, more than 7 in 10 Americans think top Trump administration officials, such as acting White House chief of staff Mick Mulvaney, Secretary of State Mike Pompeo and former national security adviser John Bolton, should be allowed to testify before Congress. That includes 64 percent of Republicans and 72 percent of independents.
A bipartisan consensus like that is extremely rare. Democrats have an opportunity to tie the transmission of the articles of impeachment to the demand that lawmakers and the public hear from witnesses with firsthand knowledge of the events.
The strategy, admittedly, is unprecedented, but it has started to gain some traction with the Democratic leadership. As members of Congress were giving floor speeches about the impeachment resolution, House Majority Leader Steny Hoyer, D-Md., told reporters on Wednesday that "some think it's a good idea and we need to talk about it. ... It's within the speaker's purview. Obviously, she'll make that decision."
At a news conference after the historic vote to impeach Trump on Wednesday night, Pelosi said that "so far, we have not seen anything that looks fair to us" as far as the Senate is concerned. She added that she would wait to see how the Senate intends to proceed before transmitting the articles.
Legally, this is somewhat unchartered territory. The Constitution does not give a huge amount of guidance on the impeachment process.
Legally, this is somewhat uncharted territory. The Constitution does not give a huge amount of guidance on the impeachment process. Some legal scholars, notably Harvard law professor Lawrence Tribe, have argued that such an approach is justifiable.
Meanwhile, Trump is on record saying: "I would actually like people to testify. ... I would love to have Mike Pompeo, Rick Perry, Mick Mulvaney and many others testify about the phony Impeachment Hoax."
Democrats are in a position to call the president's bluff. The reality is that this is probably the last point of leverage Democrats have left. Once the Senate takes over, it seems incredibly likely that McConnell will make good on his word and exonerate Trump. It won't be a trial. It will be a partisan farce.
Democrats owe it to the American people to use every tool at their disposal to try to force Senate Republicans to own their roles in such a charade. Even if they are ultimately unsuccessful, Democrats need to make it clear that Donald Trump and Mitch McConnell defied the will of the House and of at least half of the voting population.
Close to 70 percent of Americans want to hear from Mulvaney, Bolton and Rudy Giuliani under oath. This is one of those rare times when facts, perception and public opinion align. Democrats need to take advantage.