Does “Impeach and Withhold” Withhold Justice?

Max Stearns

We have witnessed a sad and rare event, yet one that, in my view, was compelling and justified. I believe this is so even if the end result is a Senate acquittal. But what if the House prevents a Senate trial altogether?

As these impeachment hearings were underway, Senate Majority Leader Mitch McConnell (R. KY) committed to coordinating with the White House to ensure that Donald Trump—the third president ever to be impeached, and the first elected president to be impeached in his first term in office—would not be convicted in the Senate. Lindsay Graham (R. S.C.), Chair of the Senate Judiciary Committee, has publicly stated he does not intend to be a fair juror, and will work toward a rapid acquittal, suggesting evidence might not be presented or considered. The extent to which the Republican party has succumbed to Donald Trump’s despicable behaviors and demands is beyond shocking, and, by my lights, beyond comprehension. Is serving as US Senator so attractive as to be worth relinquishing any hint of integrity? Yes, that was rhetorical.

The question here is on other side. Speaker of the House Nancy Pelosi, in coordination with Jerry Nagler (D. NY), Chair of the House Judiciary Committee, and Adam Schiff (D. CA), Chair of the House Intelligence Committee, is now considering withholding the Articles from the Senate. Harvard Constitutional Law Professor Laurence H. Tribe has endorsed this plan. With respect, I am less sure. And by less sure, I want to be clear; I mean less sure. We are in entirely unchartered territory, but even when this occurs, there are some markers, and it is important for all citizens to understand them and the stakes they represent.

I believe that the two most notable markers involve, first, the Second Robert Mueller report, involving Obstruction of Justice, and, second, the Supreme Court decision, United States v. Nixon. The Nixon case involved whether Richard Nixon, then President of the United States, was obligated to comply with a subpoena duces decum in a criminal proceeding, which would disclose damning taped evidence of his direct complicity in the Watergate break-in, and which ultimately led to his decision to resign the presidency, thus far a unique event in United States history. In that case, President Nixon was an unindicted co-conspirator. That is because the Department of Justice had determined that it could not bring criminal charges against a sitting president. The Second Mueller report presented evidence that lent ample support to the claim that Donald Trump had engaged in obstruction of justice. Despite that, Mueller declined to reach a determination whether he actually committed obstruction. The rationale Mueller offered was that, had the report determined Trump committed such acts, Trump would have that allegation hanging over his head for the duration of his presidency, however long that might be without an opportunity to refute them. Again, this followed from the DOJ policy disallowing indicting a sitting president.

As I have pointed out several times, impeachment is not a criminal proceeding; it is a political one. It is possible to distinguish these two events from the question involving the propriety of withholding the two approved Articles of Impeachment against Donald Trump, thereby disallowing a Senate trial, potentially indefinitely. Even so, it is important fully to draw out the analogy and only then to explore the implications of any distinctions.

Let’s imagine that although due process applies to criminal proceedings only, something roughly akin to due process, which, for lack of a better term, we might call simple fairness, is required, or at least expected, in the context of impeachment proceedings. Let us further imagine that simple fairness requires, at a minimum, that an impeached president be allowed to refute the allegations that are set forth in adopted Articles of Impeachment. This would imply that, as with the Second Mueller report, it would be improper for the House to adopt Articles of Impeachment—by analogy to the DOJ formally finding and publicly disclosing grounds for charging a sitting president with a federal criminal offense—without affording the president the benefit of any mechanism by which to refute those allegations. (Although indictments can be secretive, given the very public context of the impeachment proceedings, that is not helpful to the fairness inquiry in this context.)

I want to be very careful here. The question I am raising is purely one of process. It will not do to say that the evidence against Trump is overwhelming, or even that we need only go by what Trump himself has said. A closer question is whether the Trump's failure to participate or to allow others to do so in the impeachment proceeding precludes any argument about unfairness in refuting charges against in Senate trial. Constitutionally, these proceedings are separate, and even in actual criminal proceedings, which again this is not, whatever rights a defendant holds are in the trial, not the indictment, which provides the closer parallel to the impeachment inquiry. As a matter of process—or so the argument goes—it might well violate basic principles of fairness to have a sitting president who has been either found to have committed acts for which he could be charged criminally or for which he has now, in fact, been impeached, the political parallel, to then be held in suspension respecting those allegations or Adopted articles without a formal means of refutation.

In the Nixon case, Chief Justice Burger did two notable things: first, he determined, and for the first time, that a sitting president holds what is now referred to as executive privilege, meaning the power to withhold testimonial or other evidence that relates to deliberative matters; and second, that the privilege is not absolute, but rather is qualified. The president cannot claim all matters are deliberative, and in an in camera, meaning private and closed, proceeding, a federal judge can evaluate specific claims of privilege to ensure that the president is not overreaching. As a closely related aside, when Republican members of the House and Senate claim that the president cannot be impeached for Obstruction of Congress because there is a constitutional right to avail himself to the judicial process, they overlook an obvious fact: if the purpose of availing himself of that process is not a good faith resolution of an open legal question, but instead is a delay tactic to avoid the very impeachment process underway, that can fairly be characterized as Obstruction of Congress. The novelty of the phrasing should not confuse. Obstruction of Congress means obstruction of legitimate congressional processes, just as Obstruction of Justice means obstruction of legitimate judicial processes. In any event, the Framers of the Constitution would have been entirely shocked to imagine that a critical step in the thinly detailed and mandated impeachment processes involves pulling in the judiciary in every step of the way.

The principal justification that Burger offered in Nixon for his two-part ruling was at once powerful and circular. Burger drew upon the most famous line in all of constitutional law, the one that, in effect, formalized constitutional Judicial Review: “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison. From this, Burger inferred that if the President could determine the scope of executive privilege, or if this was purely a political question, this would undermine the vital judicial authority to say what the law is. But this is also circular. Nothing prevented the Nixon court from saying that what the law is is that this is a purely political question, or that the president has unilateral power to determine on his own the scope of executive privilege, which ultimately would be the same thing. In fact, the super-text—as distinguished from subtext as Burger was hardly known for subtlety—of the Nixon case was more important than the finer points of legal analysis. We have now heard this over and over again, almost rising to the level of Democratic mantra: no one is above the law, including the president. But there’s a flipside, which has, in like manner, become a Republican mantra: no one is below the law, including the president. If the president has charges leveled against him, or if the president is impeached, so the argument can be made, he has a “right” to refute those charges or those Articles.

Does this argument stick? Is this sufficient to advance the claim that "impeach and withhold" withholds justice? Let's consider just one more datum: Our Constitution is the second oldest operating written constitution in the world. The first: Massachusetts. At the time ours was written, transmittals took time to convey. By statute, the Electoral College, for example, meets no fewer than six days after the final slate of electors is certified. That might make sense at a time when we needed to transmit results by horse and buggy. Of course it makes virtually no sense in the modern, digital age. Back to impeachment: all members of the Senate have read the Articles and knew immediately, and in real time, that they had been adopted and by what margins. Like us, they were surely glued to the television. They knew, for example that the vote was almost entirely party line. (And who, exactly, is Tulsi Gabbard?)

The House and Senate are in what economists would call a bilateral monopoly. The House has the Articles to sell; the Senate can buy or balk. Nothing in the Constitution itself specifies whether the House must transmit adopted Articles to the Senate. This might imply that it is possible to leave this hanging over Trump’s head with no possibility, ever, of a process, however fair or unfair, that could lead to his conviction, forcing him to leave office now, even if he runs again, or acquittal, allowing him to remain. But just as the Constitution does not specify that the House must transmit the Articles, nor does it mandate that the Articles must be transmitted for formal action. The chambers can change their internal operating rules and procedures. The House Democrats are pressing the threat of withholding for political advantage, but there might be a limit to Pelosi’s capacity to press this strategy on their behalf. If the Senate took up the Articles sans transmittal, would a federal court strike the results? For that matter, would the Chief Justice fail to preside in the Senate trial, especially if that means failing to provide what many might rightly regard as simple fairness?

None of us know the answers to these questions. I won’t pretend that I do. But I will say this. I was and remain strongly supportive of impeachment, even recently arguing that just impeachment remains just. I think what the Republican-controlled Senate is threatening to do violates the oath of office to uphold the Constitution for Republican members who are willing to go along. More generally, and more perhaps notably, going along abdicates any sense of moral responsibility. And yet, despite all of that, I also worry that the House Democrats, should they push this strategy too far, might undermine the sense of fairness surrounding yesterday's historic victory. That would be costly too.

I welcome your comments.

[Special thanks to Mark Graber for his thoughtful comments on an earlier draft.]