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The House Democrats Should Not Withhold the Articles of Impeachment From the Senate

The House Democrats Should Not Withhold The Articles Of Impeachment From The Senate

Well, folks, it looks like we have finally come to an impasse. The House is, for the moment, stalling the impeachment process and it is unclear why. Now that the House has passed two Articles of Impeachment against President Trump, the next step in the process is to send the Articles of Impeachment to the Senate. Under the “normal” impeachment circumstances (not that there is such a thing as a normal impeachment), the Senate would hold a trial, call witnesses, weigh evidence, and then reach a verdict based on the evidence provided. However, in a brazen act of indecorous partisanship, Mitch McConnell told Fox News last week that he would conduct the impeachment trial in concert with the White House, and that the coordination between Senate Republicans and the White House would be so total, so complete, that the Republican Senate leadership would essentially act as an arm of the White House during the impeachment trial. That is, of course, no just improper, but also immoral. Such stonewalling would prevent the public from learning more about the Ukraine scandal that led to Trump’s impeachment. Also, from a “process” point of view, such stonewalling would also allow the Senate to acquit the President quickly and quash the impeachment effort. To combat this, Speaker of the House Nancy Pelosi has signaled that she will withhold the articles from the Senate in order to pressure the Senate Republicans to conduct a fair trial. 

This is a bad move for several reasons. There are many things that the House can do to influence the outcome of the impeachment drive in the Senate, but withholding the articles from the Senate is should not be one of the options on the menu. It will not achieve the aim it sets out to achieve, and will only muddy the partisan waters that much more at a time when the partisan divide is cutting at the core of our democracy.

Here is the line of the reasoning behind Pelosi’s move to withhold the articles. Let’s start at the end and reason backward. In order for the President to be removed, the Senate would have to ratify the articles of impeachment via the trial in the Senate. At the moment there is very little chance that this will happen given that the GOP holds a majority in the Senate. The Democrats would need to convince 20 GOP Senators to change their positions. How might those 20 Senators become convinced to flip and vote against the president? The only thing that would influence them is if there were a major shift in voter sentiment in support of removal from office. At last count, the polls showed that around 54% of the country supported impeachment, while only 48% supported removal. That is not enough to convince 20 senators to flip. So the Democrats reason that the public must be shown more evidence to convince them of the necessity of removing President Trump from office. The way to do that would be to bring witnesses that the White House has so far blocked during the House impeachment investigations: people like Mick Mulvaney and John Bolton. These witnesses could be compelled to testify by Chief Justice Roberts under court order. But Mitch McConnell has said he will block any witnesses from coming forward in order to prevent voter sentiment from influencing the Senate’s current anti-impeachment bent. This brings to Pelosi’s move to withhold the Articles of Impeachment from the house in order to force the Senate to allow witnesses to testify. The calculation here is that only 4 Senators are needed in order to force Mitch McConnell to allow witnesses to come forward, so the House is playing for time to give Senators who have been critical of Trump, like Mitt Romney and Lisa Murkowski, a chance to change their minds over the holidays. If 4 Senators decide to advocate for witnesses to be allowed to testify during the Senate trial, then the Democrats hope that their testimony will be enough to sway voter sentiment against Trump and thus influence 20 senators to vote to remove Trump.

There are several problems with this reasoning. Withholding the articles of impeachment from the Senate does not actually pressure Mitt Romney or other senators. There is no leverage there. Remember, while there are rumors that behind the scenes over a dozen senators would vote to remove Trump if given the chance to vote anonymously, these senators are not going to risk such a vote just to make House Democrats feel satisfied. If anything, withholding the articles of impeachment only helps the GOP paint the Democrats as rule breakers and trouble makers. What do these senators lose when the House Democrats withhold the articles of impeachment? The wager the Democrats are making here is that, during the time they withhold the articles from the Senate, they will be able to make the argument to the American people that the Senate process is unfair, and that this will create support among voters for 4 senators to support bringing witnesses to trial. But the problem is that the opposite is also true: the GOP is leaning hard into the messaging that the entire impeachment effort has been unfair from the beginning and that it must be ended as quickly as possible. By withholding the articles, Democrats are playing directly into the GOP’s argument. Again, there is no reason why the GOP is suddenly at a disadvantage in this contest just because the House is withholding the articles. If anything, the GOP gains time to make their arguments as well.

Much has also been made about arguments that the House has no businesses trying to influence the Senate’s process. According to these arguments, the House has done its job by passing articles of impeachment, and now it is time for the House to allow the Senate to do its job. These are weak arguments for one reason: the House and Senate are always attempting to influence each other. That is the nature of the institution of Congress and the entire point of having a bicameral legislature. The lower chamber and upper chamber exist in order to communicate and coordinate with each other, compete against and undercut each other, and generally interact in all of the ways that our democracy allows them to interact, during the legislative process. To assert now that the House has no business influencing the Senate relies on an absurd understanding of the role of political processes in Congress. The tussle over ‘process’ is the modus operandi of much of American political life. These process battles are what politicians are there to prosecute.

The real argument against Pelosi here has nothing to do with ‘process’ or lawyerly arguments about the Constitution. Instead, the main reason why withholding the articles from the senate is a bad idea goes back to the need to convince voters that the Democrats are correct in their appraisal of the President as being unfit for office. But even here, what is really at stake is not the impeachment effort: what is at stake is the 2020 election. 

As it stands, the Democrats enjoy only a slim majority of support for impeachment, and they do not have a majority supporting removal (the polls are mixed on the question of removal). The voters that they need to convince to join their side of this debate are the same voters they need to win in 2020: white working-class (mostly) men, especially those conservative Democrats and independents who voted for Obama in 2012 and then voted for Trump in 2016. These swing voters in Pennsylvania, Wisconson, and the midwest will be integral to the Democrats’ election win in 2020. Unfortunately, these same voters are the least enthusiastic of all Democratic factions about the impeachment effort. The evidence here is Tulsi Gabbard’s “present” vote during the House impeachment vote. She enjoys widespread support from these swing voters, and her vote was largely a reflection of their ambivalence about impeachment. At the moment, many of these voters do not really care about impeachment. At best, they support giving Trump a symbolic slap on the wrist, or maybe impeachment in the House, but certainly not removal in by the Senate. But crucially, withholding the Articles of impeachment from the Senate will do nothing convince these voters to support the Democrats’ impeachment effort. If anything, Pelosi’s stalemate will only test their fragile patience with the Democrats. This is dangerous for the Democrats, because, again, the Democrats need these voters during the general election in 2020. Right now they have them. Why test their support by stalling for time at the 11th hour?