House Speaker Nancy Pelosi’s gambit to shape President Trump’s Senate impeachment trial will likely come to an end this week.
In the coming days, the House is set to vote on a resolution to send its two articles of impeachment to the Senate and appoint managers who will serve as prosecutors in the coming impeachment trial.
It’s the culmination of a nearly month-long fight between Democrats and Senate Republicans over the articles, in which the House speaker tested the limits of her ability to wrangle Senate impeachment rulemaking in a divided Congress. Ultimately, it turned out, her options were limited.
The stalemate has been unprecedented in U.S. history and could influence future impeachments, but it’s also emblematic of the hyper-partisan political landscape in today’s Congress.
“This is where the political nature of impeachment really comes out: a divided Congress, a presidential impeachment,” said Alan Baron, a former special impeachment counsel for four judicial impeachments and three trials. “[You] can’t get more political than that.”
Harvard Law professor Laurence Tribe championed the idea of withholding articles to get assurances that Senate Majority Leader Mitch McConnell would allow senators to subpoena witnesses and White House documents, penning an op-ed in The Washington Post two days before the House’s Dec. 18 impeachment vote.
Tribe told National Journal on Monday that the weeks-long campaign was worth the effort, and that inaction on Pelosi’s part in light of McConnell’s effort to oppose witnesses and his coordination with the White House would have set the wrong example for future generations.
“It’s handing him the articles immediately, only to have him orchestrate their immediate dismissal or at best perfunctory rejection, that would have set a dangerous precedent—the precedent that no impeachment, however amply justified, will even receive fair consideration by the Senate whenever that chamber is controlled by partisan loyalists of the impeached president or other high official,” Tribe said in an email.
Pelosi’s gambit to hold onto the articles was uncharted territory. In the past two presidential impeachments, the majority parties in both Houses had been unified on the process. Republicans controlled Congress during the trials of Presidents Bill Clinton and Andrew Johnson. But Trump’s impeachment comes as the House and Senate are divided, and with a Senate majority of the same party as the president.
Frank Bowman, a professor at the University of Missouri’s School of Law and like Tribe the author of a book on impeachment, said Pelosi’s move provides fodder to lawmakers seeking justification to shape future trials. While a president’s supporters could point to the lack of apparent effect her delay has had on the Senate trial rules, managers seeking a leg up can similarly find a forerunner in Pelosi.
“It creates, I suppose, a precedent that a future speaker will undoubtedly refer to if it seems tactically advantageous,” Bowman said. “And in that sense, it creates a new precedent, at least the possibility of a new norm. It suggests that there is some room for negotiation, if we want to call it that, between the House and the Senate on the terms of the trial.”
The battle between Pelosi and McConnell started less than an hour after the House voted to approve its articles of impeachment on the night of Dec. 18.
When Pelosi stepped to the microphones in the Capitol’s Rayburn room, flanked by the heads of six House committees investigating Trump, she claimed a moral victory over the president. But she also opened up another front, announcing she wouldn’t send over the articles of impeachment until “we see what the process is on the Senate side.”
McConnell knew Pelosi held little leverage, and on Jan. 7, he said he had the votes to pass the rules he wanted, shutting Pelosi and Senate Democrats out of the process.
“I'm glad the speaker finally realized she never had any leverage in the first place to dictate Senate procedure to senators and is giving in to bipartisan pressure to move forward,” McConnell said on the floor Monday. “In terms of influencing Senate proceedings, this strange gambit has achieved absolutely nothing.”
Despite losing on the question of an upfront agreement on witnesses, Pelosi did achieve some victories, Democrats said. By withholding the articles, Pelosi elevated the issues of witnesses to the forefront of the debate.
“Article One gives the House exclusive power over impeachment, and that includes the passage of articles and the delivery of articles,” said Democratic Rep. Jamie Raskin, a former constitutional law professor who sits on the Judiciary Committee. “So I think that this episode establishes the power of the House over both passage and delivery.”
During the month-long delay, new evidence emerged related to the Ukraine scandal. Reporting by the nonprofit news website Just Security last week detailed unredacted emails between White House and Pentagon officials over withholding Ukraine aid. The emails were evidence not only that the president held firm on withholding the aid despite concerns that it violated the law, but that the administration may have redacted the emails in a previous disclosure to politically protect the president and White House officials.
On Monday, a lawyer for Lev Parnas, an indicted associate of Rudy Giuliani, tweeted that his team had handed over documents to the House Intelligence Committee detailing interactions with a number of individuals relevant to the impeachment inquiry.
“We feel that it has produced a very positive result in terms of additional emails and unredacted information that has come forward, that [former National Security Adviser John] Bolton has said he would testify if subpoenaed by the Senate, other information that has come forward,” Pelosi said Sunday on ABC’s This Week. “And more importantly, raising the profile of the fact that we need to have witnesses and documentation, and if we don’t that is a cover-up.”
Most of all, her decision delayed the start—and by extension—the end of the trial. Doing so will keep four Democratic senators running for the presidential nomination in Washington and away from Iowans participating in the Feb. 3 caucuses. And by delaying the end of the trial, Pelosi may yet rob Trump of an opportunity to gloat about his expected acquittal in his Feb. 4 State of the Union address.
Litigating Pelosi’s strategy in the interim phase between impeachment and the start of the Senate trial won’t be exclusively the domain of future historians. Democrats have painted the Senate stonewalling on witnesses as evidence of a cover-up. As presidential candidates continue to vie for support this year, voters will ultimately decide whether Pelosi’s quest for more evidence was a valuable one.
“Then the question is, what’s the struggle about? What’s the fight?” Baron said. “The fight’s about November. The fight is what kind of record is going to be created here that the Democrats, from their point of view, can use to attack Trump and say to the electorate, ‘Is this the guy you really want to continue in office as president?’”