Welcome to impeachment anarchy.
Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell are roaming freely between the lines of the Constitution, which spells out very little about the technicalities of the impeachment process. So both leaders, two of the savviest and most ruthless tacticians of the era, are working to exploit this unmapped wilderness to their advantage.
Lawmakers of both parties confess there’s no rule barring Pelosi from delaying a trial by slow-walking articles of impeachment to the Senate, which she has pledged to do until McConnell vows to hold a fair trial based on facts and evidence. There’s also no recourse to stop a Senate leader who openly promises to coordinate trial strategy with the president, the defendant in the case.
In other words, the leaders are largely making it up as they go along, and the nation is watching the raw exercise of power without guardrails, waiting for a victor or a compromise to emerge.
It’s what Rep. Jamie Raskin (D-Md.), a constitutional lawyer, calls the true meaning of “checks and balances”: the purposeful tension between the House and Senate, guided by little other than a presumption of good faith and a promise to keep the American experiment alive. But like everything in the Trump era, this presumption is being stress-tested, only this time the theater of battle is the president’s potential removal from office.
At the heart of the tension is the Constitution’s only two grants of “sole power.” The House has exclusive authority to impeach the president. The Senate has exclusive authority to “try all impeachments.”
That’s pretty much everything the Constitution has to say about the impeachment process. And because there have been just two presidential impeachments prior to this week — Andrew Johnson’s in 1868 and Bill Clinton’s in 1998 — the precedents lawmakers are eyeing are paper-thin, flexible and built for different eras and alleged “high crimes." Another first: the Trump impeachment is taking place under a divided Congress, with one party in control of the House and the other running the Senate.
So if the House impeaches the president but delays sending the articles to the Senate?
“It’s just weird,” said Sen. Mike Lee (R-Utah), who has clerked for two federal judges and litigated before the Supreme Court.
“I think I had kind of an idea of what it might look like until the speaker announced her weird little plan,” Lee added. “I’m not quite sure what to make of that. It remains in suspended animation.”
Some legal scholars say the Senate can simply declare that the president has been impeached — citing the House’s approval of two articles charging Trump with abuse of power and obstruction of Congress — and hold a trial without delay. Conversely, some Trump allies say perhaps the brouhaha about transferring articles means the president technically hasn’t been impeached yet; if he already is, the thinking goes, the Senate wouldn’t have to wait on the perfunctory transfer of articles from the House to begin a trial.
A hitch in that argument is the Senate’s 1,500-page manual of rules of procedure, which declares that an impeachment trial can’t begin until the House names “impeachment managers” to deliver the case to the Senate. Though the Senate has the power to change that process, so far there’s been no effort or energy to do so. The remaining Senate procedures on the books spell out the conduct of the Senate trial once it begins.
The House, which has its own 1,500-page manual, offers only limited answers about the process of sending articles to the Senate. Once the House adopts articles of impeachment, according to the manual, there is no time frame for when it must name managers to formally notify the Senate. Typically, this is done in a resolution after the impeachment vote, which names the managers, informs the Senate and authorizes managers to begin preparing for trial.
Pelosi alluded to that separate resolution during her news conference Thursday. "There is a bill made in order by the Rules Committee that we can call up at any time, in order to send it over to the Senate and to have the provisions in there to pay for the impeachment," she said. "And then, the next step, whatever you want to call it, the trial. That is where you put the managers. I was not prepared to put the managers in that bill yet because we don't know the arena that we are in."
Some lawmakers believe Pelosi is adopting this stance to make the Senate sweat and infuriate Trump, who's desperate to put on his impeachment defense, even though she'll ultimately deliver the articles soon after the two-week Christmas recess. All of the discussion would become moot if McConnell and Senate Democratic leader Chuck Schumer strike a deal on trial procedures in the meantime. But on Friday, the two sides were still in conflict, with little optimism for a breakthrough anytime soon.
That’s led to howls of protest in both chambers. Trump and McConnell accuse Pelosi of being afraid to send her case to the Senate, where they believe it will be blown to smithereens by the president’s defenders. Pelosi, meanwhile, says she won’t send her best allies into a Senate ambush and will wait to see the rules before naming impeachment managers. Americans, the speaker and her allies are betting, won’t punish Democrats for demanding impartiality in the trial.
“It was definitely the right thing to do knowing you were sending it to what looked like ... an unfair trial,” Sen. Joe Manchin (D-W.V.) said. “So if she can help us get a fair trial that’s what we want to do.”
For the most part, rank-and-file lawmakers shrug their shoulders when asked about how this constitutional confrontation will work out, and they acknowledge that they’re witnessing precedent-setting maneuvers in real time.
“There’s very little written about impeachment, very few rules, and you kind of make them up as you go along,” said Rep. Lou Correa (D-Calif.), a member of the Judiciary Committee. “I guess in 20, 30 years we’re probably going to have some precedent to look back at.”
In the meantime, Correa and other Democrats are putting their trust in Pelosi’s judgment about how to wield the House’s power in this ongoing and unpredictable fight.
“This morning, my Republican colleagues and I were talking and some of them were saying, ‘Thank God, this is over,’” Correa said. “And I thought, it’s just the beginning. This thing is just beginning.”
Burgess Everett contributed to this story.