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WASHINGTON — Democrats wasted no time celebrating the passage of two articles of impeachment against President Trump on Wednesday night. Almost as soon as the votes were tallied, House Speaker Nancy Pelosi and Democratic leaders held a press conference in which they announced that they were not ready to transmit those articles to the Senate.
It was the most dramatic turn in a day that was otherwise largely predictable.
That sets up a potential showdown between Pelosi and Senate Majority Leader Mitch McConnell — and, more broadly, between the House Democratic majority and the majority enjoyed by Republicans in the Senate.
At the heart of that battle are complex questions about what, exactly, the U.S. Constitution says about the articles of impeachment.
Below, an explainer about what happened, as well as what may happen next.
What does it mean to withhold articles of impeachment?
The House of Representatives has the capacity to impeach a president, but not to remove him from office. That can only be done after conviction in a Senate trial, which is presided over by the chief justice of the United States, currently John Roberts.
That trial cannot begin until those articles of impeachment are delivered by the House to the Senate.
How are the articles of impeachment transmitted from the House to the Senate?
That work is done by impeachment managers, who will also play the role of prosecutor during the Senate trial. It is their job to notify the Senate of the articles the House has ratified.
According to a Congressional Research Service explanation of impeachment procedures, the managers will then “read the resolution authorizing their appointment and the resolution containing the articles of impeachment on the Senate floor and then leave until the Senate invites them back for the trial.”
Has Pelosi appointed managers yet?
As of Thursday afternoon, she had not. And until she does, the articles will have no one to carry them to the Senate.
Why are Democrats delaying sending the articles?
Because they worry that McConnell will structure the trial in a way that will guarantee that Trump will be acquitted. He is likely to be acquitted anyway, since a two-thirds majority is needed for conviction. That outcome is highly unlikely in a chamber where few, if any, of its 53 Republicans members have shown a willingness to challenge Trump.
Still, the Democrats want a trial that fully airs the case against Trump, and they have demanded both that witnesses appear and key agencies, like the White House budget office, turn over relevant documents. McConnell has roundly resisted these requests.
Where did the idea of a delay come from?
“Don’t let Mitch McConnell conduct a Potemkin impeachment trial,” the op-ed was titled. Tribe argued that nothing compelled the House to immediately turn the articles over to the Senate.
In fact, Tribe advised against doing so, noting what he described as McConnell’s “intention to conduct not a real trial but a whitewash, letting the president and his legal team call the shots.”
Rep. Jim Clyburn of South Carolina, a member of the House Democratic leadership, endorsed the idea on Thursday morning. Clyburn was asked on CNN if the Democrats might “never transmit the articles of impeachment.”
Clyburn agreed with that description of his view of the matter, thus effectively endorsing the maneuver.
Pelosi herself has not explicitly said that she will continue to withhold the articles of impeachment from the Senate. If anything, she wants the burden of impeachment gone from her chamber, so that vulnerable members of the Democratic conference can show voters that they are working on substantive legislation.
On Thursday, Pelosi clarified her remarks from the previous evening — but only slightly. “The next thing for us will be when we see the process that is set forth in the Senate,” she said, “then we’ll know the number of managers that we may have to go forward and who we will choose.”
This was a message to McConnell, a message whose contents could not be more clear: Ball’s in your court.
Is the Democrats’ tactic legal?
“The Constitution leaves room for arguments on both sides of the question of whether the House could withhold from transmission to the Senate articles of impeachment,” says Joshua Geltzer, a constitutional scholar and visiting professor of law at Georgetown University. “All that the Constitution says on this is that the House shall have ‘the sole power of impeachment’ and that the Senate shall have ‘the sole power to try all impeachments.’ That scant text leaves room to argue that the House can exercise its power to impeach without taking the next step of sending impeachment to the Senate; but it also leaves room to argue that it’s implicit in that combination of powers that impeachment will move from the House to the Senate for trial, at least on some reasonable time frame.
“This strikes me as an instance where the constitutional text simply runs out on us — and, when that happens, it leaves arguments to be made on both sides,” Geltzer said.
Trump, unsurprisingly, has his own ideas. “The Senate shall set the time and place of the trial,” he wrote in one tweet, putting that sentence in quote marks, although it does not appear to be referencing an explicit legal doctrine or opinion. “If the Do Nothing Democrats decide, in their great wisdom, not to show up,” the same tweet continued, “they would lose by Default!”
It was not clear what constitutional grounds Trump was citing. It is clear, however, that no trial can begin until the delivery of the articles of impeachment sets the Senate in motion.
Tribe, in his Washington Post op-ed, rejected the notion that the House needs to justify its “inaction” with
”some textual snippet in the Constitution” that explicitly sets a timeline for impeachment. No definitive timeline exists. The power of delay, Tribe argues, does not need to be spelled out in order to be exercised.
Noah Feldman, a legal scholar who also served as a Democratic impeachment witness, argued in a Bloomberg op-ed that the Constitution did not allow for an indefinite hold.
“If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all,” Feldman wrote. “That’s because ‘impeachment’ under the Constitution means the House sending its approved articles ... to the Senate, with House managers standing up in the Senate and saying the president is impeached.”
How have congressional Republicans responded?
It’s hard to tell if they were surprised by Pelosi’s maneuver, but they are definitely not pleased by it.
McConnell took the Senate floor on Thursday morning, criticizing the House impeachment effort as “shoddy work” and warning that Pelosi and her fellow Democrats were creating “a toxic new precedent that will echo well into the future.”
But the dynamics of the delay is more complex than that, because Trump deeply craves exoneration from the Senate. White House attorneys are “looking at various options for proceeding if [the] House doesn’t send articles of impeachment to the Senate,” New York Times reporter Maggie Haberman wrote on Twitter. She added that Trump “doesn’t want it to be left hanging that he was impeached and nothing was done by Republicans to defend him in the Senate.”
McConnell may be a supremely gifted tactician, but he now has to contend with an impatient president on one side and a deft House leader on the other.
Nobody knows for sure, perhaps not even Pelosi herself. But what has already transpired is plenty historic. When Trump returned to Washington last night shortly after midnight from a campaign rally in Michigan, he set foot on the South Lawn of the White House as only the third president of the United States to have been impeached.
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