Jn yesterday’s Washington Post, George Conway and Neal Katyal propose a great idea: How Pelosi should play her impeachment cards. Here it is:
The first article of impeachment effectively charges the president with shaking down Ukraine; the second impeaches him for his unprecedented obstruction of Congress. That gives the speaker room to maneuver. She could choose to tweak her announcement and send only the second article, on obstruction, for trial. Or she could transmit them both — along with a House-approved provision advising the Senate that if it fails to obtain adequate witnesses and documents, the House will reopen the investigation into Article I and subpoena that material itself.
This makes a lot of sense.
The Second Article is open and shut: Trump obstructed justice by stonewalling on producing witnesses and documents. There are no “genuine issues of material fact” — the standard for obtaining a civil judgment without the need for trial (known as “summary judgment”).
Trump did it; and he can’t deny it. The only issue is one of law: Whether the President is above the law and can prevent evidence in an impeachment trial. In all likelihood that will not get 67, and probably not 51 votes.
But let the Republicans live with their vote that the President is above the law. As I wrote in a prior diary, “if Trump becomes increasingly toxic, a vote to acquit him should also be toxic — for the vulnterable GOP Senators like Gardner (CO), Collins (ME), McSally (AZ), Tillis (NC),” and maybe even for the Presidential hopes of Cotton, Rubio et al.
As for the First Article, though there already is enough evidence to convict, Conway and Katyal note “new revelations of Trump’s involvement have emerged, including emails showing that aid was ordered withheld from Ukraine 91 minutes after Trump’s supposedly “perfect” phone call with President Volodymyr Zelensky. Trump’s former national security adviser, John Bolton, has said he is willing to testify.” Holding the Second Article until the House presents this evidence has several advantages:
- There is 70% support for Senate witnesses. It’s advantageous for Democrats to keep alive an issue on which there is that amount of support.
- Simply sending Articles I and II to the Senate only to be quickly killed by McConnell limits his damage if only because it gets it out of the way quickly.
- If additional witnesses and other evidence are heard first in the House, McConnell has fewer grounds to keep them out in the Senate, or at least more political risk for doing it.
- Marco Rubio argues (weakly) the Senate should only use evidence from the House. OK Marco, for these purposes we agree — let’s re-open the House hearings (under your theory) so the Senate can hear all relevant evidence brought over from the House.
I also like Katyal and Conway’s alternative — send both articles with a message that if McConnell fails to call witnesses, the House will do so: “The speaker would, essentially, be guaranteeing that Trump would face another investigation because of McConnell’s insistence on a sham trial, one that fails to call willing witnesses or deal with relevant, if potentially damaging, evidence.”
Go for it, Nancy.