The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
After the House Judiciary Committee approved two articles of impeachment, several media outlets reported that the House would promptly hold a floor vote, as early as December 18. Now, the timing seems to have slowed down, and it isn't clear there will be a vote this week.
Philip Bobbitt writes that the House should pause the impeachment process. In the interim, the House should litigate various subpoenas against the Trump Administration:
Resort to the courts may take many weeks, but there is no reason it would take many months. The ultimate guidance given the parties—as in the Nixon case—can preclude endless re-litigation.
Success in getting a judicial order to produce documents and testimony is the only way to overcome the partisan impasse we currently face. The only possibility left lies in public attention, which will be substantial when Secretaries Pompeo and Perry, chiefs of staff Mulvaney and Kelly, national security adviser Bolton, White House Counsel McGahn and the president's lawyer Giuliani are compelled to testify under oath. Some of these individuals are known to have had direct conversations with the president about Ukraine; others are knowledgeable about the president's alleged obstructions that predate the Ukraine matter. Pausing now may afford other pieces of the story to fall into place.
What's more, action by the courts broadens the legitimacy of the inquiry beyond the acts of one highly partisan body of one branch of the government.
Larry Tribe proposed a delay, but for very different reasons. The House should hold off on a vote until the Senate confirms that it will hold a fair trial. He tweeted:
BREAKING NEWS: Schumer's proposal to McConnell. If he rejects these reasonable ground rules & insists on a non-trial, the House should consider treating that as a breach of the Senate's oath & withholding the Articles until the Senate reconsidershttps://t.co/a9zbBywFBG
— Laurence Tribe (@tribelaw) December 16, 2019
The House Judiciary Committee approved the Articles at a blistering pace. But now, the House may see advantages–both legal and strategic–in dragging this process out. Bobbitt identified one such pragmatic reason:
And I ask the president's political opponents: would you rather run against a candidate who is under indictment or one who has been acquitted?
Hitting the pause button would allow the allegations to hang over the political landscape for the next 11 months, without any definitive conclusion, such as an acquittal. The majority could also prevent its members in swing districts from having to take a difficult vote, at least until the political currents settle.
My colleague Seth Barrett Tillman suggested another option. The House could approve the articles of impeachment, but not transmit them to the Senate. As far as I can tell, there is no requirement that the House take any action after approving articles of impeachment. For certain, the Senate cannot take any action until the House managers show up. In this fashion, the articles of impeachment would operate as a censure that could stand indefinitely. The House, in theory, could vote for impeachment again in the next Congress.
Consider another possibility. The House could determine that the Senate, with its current leadership and majority, would not afford the House managers a fair trial. (Tribe hints at this option.) Therefore, the House plans to wait until after the election to transmit the articles of impeachment. Of course, that option would be premised on President Trump winning re-election. What better way to start Trump's second term than by holding an impeachment trial? Indeed, if the Senate flips to Democratic, the Senate trial could serve as a lengthy post-mortem of the Trump administration. However, even if Trump loses, I agree with co-blogger Keith Whittington that a former President could be impeached.