Nancy Pelosi's great impeachment charade
© Greg Nash

For the first time in U.S. history, and unbeknownst to most Americans, the U.S. Senate has 101 members, not 100.  Rep. Nancy PelosiNancy PelosiPelosi: Ginsburg successor must uphold commitment to 'equality, opportunity and justice for all' Bipartisan praise pours in after Ginsburg's death Pelosi orders Capitol flags at half-staff to honor Ginsburg MORE, a Democrat representing California’s 12th Congressional District, has apparently anointed herself as California’s third U.S. Senator.  She also collects a paycheck as Speaker of the U.S. House of Representatives.

Speaker Pelosi has decided to dictate how the Senate should handle President TrumpDonald John TrumpObama calls on Senate not to fill Ginsburg's vacancy until after election Planned Parenthood: 'The fate of our rights' depends on Ginsburg replacement Progressive group to spend M in ad campaign on Supreme Court vacancy MORE’s trial.  She refuses to transmit to the Senate the two articles impeaching Donald Trump that the House voted on Dec. 18, 2019. Her reasons for delaying are murky.

The Speaker has said that she wants to ensure a fair Senate trial before transmitting the two articles. There’s also speculation that her delay may encourage a few Senate Republicans to complicate Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellObama calls on Senate not to fill Ginsburg's vacancy until after election Planned Parenthood: 'The fate of our rights' depends on Ginsburg replacement Progressive group to spend M in ad campaign on Supreme Court vacancy MORE’s (R-Ky.) plans to coordinate the Senate trial closely with the White House.

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GOP Sens. Lisa MurkowskiLisa Ann MurkowskiSenate Republicans face tough decision on replacing Ginsburg What Senate Republicans have said about election-year Supreme Court vacancies McConnell says Trump nominee to replace Ginsburg will get Senate vote MORE (Alaska) and Susan CollinsSusan Margaret CollinsSenate Republicans face tough decision on replacing Ginsburg Democratic senator calls for eliminating filibuster, expanding Supreme Court if GOP fills vacancy What Senate Republicans have said about election-year Supreme Court vacancies MORE (Maine) have already expressed concerns over McConnell’s plans, and Speaker Pelosi surely wants to encourage more potential Republican defections.

The U.S. Constitution, however, is clear: the House is solely responsible for impeaching a president; the Senate is solely responsible for conducting a trial presided over by the Chief Justice of the United States. With the House vote completed, Speaker Pelosi’s impeachment role is over.  

The House vote was partisan: 230 Democrats favored impeachment on Article I’s “abuse of power” charge, while 195 Republicans and two Democrats voted against Article I; 229 Democrats favored impeachment on Article II’s “obstruction of Congress” charge, while 195 Republicans and three Democrats voted against Article II. On both articles, three members of Congress did not vote, and one member voted “present.”

The premise of Article II’s obstruction charge is that the president withheld evidence and testimony from the House impeachment proceedings.  When Richard Nixon tried a similar tactic, the House took him to court, and the U.S. Supreme Court ultimately ordered him to produce his White House tape recordings.

In today’s situation, one rationale for not litigating President Trump’s alleged congressional obstruction was the need for prompt action. House Democrats would have been on firmer ground had they not rushed on Article II but, instead, chosen to pursue their allegations in the federal courts.

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Whatever you think of Donald Trump’s conduct, Speaker Pelosi’s delay lacks merit. The rationales offered by House Democrats for their comparatively hasty proceedings are that President Trump (1) represented a serious, continuing national security threat, and (2) was likely to seek foreign interference in this year’s congressional and presidential elections, as he allegedly did in 2016.  So why the sudden brakes?

What happens next is solely up to McConnell and his fellow Senate Republicans. Here are two suggestions for McConnell.

First, call Pelosi’s bluff. Announce that nothing further will happen in the Senate until the impeachment articles arrive. This approach means no negotiations whatsoever with Senate Minority Leader Chuck SchumerChuck SchumerPelosi orders Capitol flags at half-staff to honor Ginsburg Ginsburg in statement before her death said she wished not to be replaced until next president is sworn in Democrats call for NRA Foundation to be prohibited from receiving donations from federal employees MORE (D-N.Y.). Absent the impeachment articles, there’s nothing to discuss. And the longer Pelosi delays, there’s a greater likelihood that the Senate trial will crowd out news about the Democratic presidential candidates before next month’s Iowa caucuses.

Second, once the articles arrive, call Schumer’s bluff. Pelosi and Schumer want witnesses to testify at the Senate trial.  Schumer has listed four witnesses: former National Security Adviser John BoltonJohn BoltonDiplomacy with China is good for America The Hill's Morning Report - Sponsored by The Air Line Pilots Association - Pence lauds Harris as 'experienced debater'; Trump, Biden diverge over debate prep DOJ launches probe into Bolton book for possible classified information disclosures MORE; acting White House cshief of taff and OMB Director Mick MulvaneyMick MulvaneyMick Mulvaney to start hedge fund Fauci says positive White House task force reports don't always match what he hears on the ground Bottom line MORE; Mulvaney’s OMB colleague Michael Duffy; and Robert Blair, an assistant to the president and Mulvaney adviser.

If McConnell agrees that the Democrats can call four witnesses, then McConnell and Senate Republicans should call their own four witnesses: the unnamed “whistleblower,” whose allegations launched the Trump impeachment process; former Vice President Joe BidenJoe BidenSenate Republicans face tough decision on replacing Ginsburg What Senate Republicans have said about election-year Supreme Court vacancies Biden says Ginsburg successor should be picked by candidate who wins on Nov. 3 MORE, and his son, Hunter Biden, whose actions relating to Ukraine were part of the substantive concerns explored in the House Intelligence Committee and Judiciary Committee proceedings; and Rep. Adam SchiffAdam Bennett SchiffTop Democrats call for DOJ watchdog to probe Barr over possible 2020 election influence Overnight Defense: Top admiral says 'no condition' where US should conduct nuclear test 'at this time' | Intelligence chief says Congress will get some in-person election security briefings Overnight Defense: House to vote on military justice bill spurred by Vanessa Guillén death | Biden courts veterans after Trump's military controversies MORE (D-Calif.), who played a leading role orchestrating the House investigations.

As the old saying goes, justice delayed is justice denied. President Trump is entitled to a prompt and fair trial before the Senate. He believes that he’s done nothing wrong. Moreover, the American people need the facts in order to move beyond the current impasse.

Absent some future Nixon-type smoking gun, the Senate will acquit President Trump. Ten months from today, voters will decide whether Donald Trump deserves a second presidential term. So let’s have more, not less information. Give the president a fair trial, then let the American people have the final say.

Charles Kolb served as Deputy Assistant to the President for Domestic Policy from 1990-1992 in the George H.W. Bush White House.