(WAPO) Laurence Tribe: Impeach Trump. But don't necessarily try him in the Senate.

[hlthe2b]

This opinion piece from Prof. Tribe is getting a lot of positive attention. Worth reading and considering. Since WAPO is behind a paywall, I'll include as much as I can, but perhaps others with access can fill in what is missing:

Laurence H. Tribe is the University Professor of Constitutional Law at Harvard and the coauthor, most recently, of “To End a Presidency: The Power of Impeachment.”
https://www.washingtonpost.com/opinions/impeach-trump-but-dont-necessarily-try-him-in-the-senate/2019/06/05/22d83672-87bc-11e9-a870-b9c411dc4312_story.html?utm_term=.cb1ddd556bed

--snip--
But to think of the House of Representatives as akin to a prosecutor or grand jury is misguided. The Constitution’s design suggests a quite different allocation of functions: The Senate, unlike any petit (or trial) jury, is legally free to engage in politics in arriving at its verdict. And the House, unlike any grand jury, can conduct an impeachment inquiry that ends with a verdict and not just a referral to the Senate for trial — an inquiry in which the target is afforded an opportunity to participate and mount a full defense.

Take, for instance, the 1974 investigation of President Richard M. Nixon when the House gave the president the opportunity to refute the charges against him either personally or through counsel and with additional fact witnesses. (Nixon chose to appear only through his attorney, James D. St. Clair.) Following its impeachment proceedings, the House Judiciary Committee drafted particularized findings less in the nature of accusations to be assessed by the Senate — which of course never weighed in, given Nixon’s resignation — than in the nature of determinations of fact and law and verdicts of guilt to be delivered by the House itself, expressly stating that the president was indeed guilty as charged.
It seems fair to surmise, then, that an impeachment inquiry conducted with ample opportunity for the accused to defend himself before a vote by the full House would be at least substantially protected, even if not entirely bullet-proofed, against a Senate whitewash.

The House, assuming an impeachment inquiry leads to a conclusion of Trump’s guilt, could choose between presenting articles of impeachment even to a Senate pre-committed to burying them and dispensing with impeachment as such while embodying its conclusions of criminality or other grave wrongdoing in a condemnatory “Sense of the House” resolution far stronger than a mere censure. The resolution, expressly and formally proclaiming the president impeachable but declining to play the Senate’s corrupt game, is one that even a president accustomed to treating everything as a victory would be hard-pressed to characterize as a vindication. (A House resolution finding the president “impeachable” but imposing no actual legal penalty would avoid the Constitution’s ban on Bills of Attainder, despite its deliberately stigmatizing character as a “Scarlet ‘I’ ” that Trump would have to take with him into his reelection campaign.)

Some of the twitter comments on this editorial/proposal:

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more at the link above.

[bigbrother05]

1. The House could find guilt or censure, Senate referral if removal is sought

The Senate would effectively be a sentencing hearing.

[FM123]

2. Wow. Laurence Tribe, he is really something! He has definitely given us food for thought....

[Dennis Donovan]

3. Tweet this to Speaker Pelosi!

[Hortensis]

8. Lol. They know. Of course.

Their team doesn't just include them and many other who've spent decades in national political leadership but legal experts every bit as good as Tribe. If this is doable, it's in their pocket as an option.

[Nevilledog]

4. Brilliant. Don't think the House would do something so unprecedented.

Much to our detriment.

[Hortensis]

9. Really? Frankly, every impeachment involves something

unprecedented. But conservatives are the ones who abuse it to chum for bottom feeders. It's true that we've used it as intended -- to remove presidents, but not that it hasn't involved creating precedents.

But in this case the situation would be the same whether we planned to allow or deny the Republicans the chance to declare Trump innocent in a senate trial: We would officially investigate and lay out our evidence to the electorate. So either way, we wouldn't do it until we had our case in order and were ready to proceed. And had maneuvered the Republicans into a place where however they could respond would be to our benefit, or at least not to theirs.

[Nevilledog]

15. Don't get me wrong. It is a brilliant proposition.

Tribe is amazing. It just seems like there is so much second-guessing about doing anything. Should we call it impeachment investigation? Criminal investigation? etc. I am of the opinion that it doesn't matter what we call it, we just need to start getting public testimony about the enormous mountain of corruption involving trump and his administration. So much testimony that it can't be ignored or dismissed.

[Hortensis]

19. Sure. Tribe's not the first one to bring this up, though, and

best guess none of the recent ones invented this idea. Very interesting, though, and would seem a possible way to divide the baby without killing it.

The constitution says impeachment after being voted for in the house will be referred to the senate for trial. There's nothing in the constitution that specifically says the house has to refer it. I once searched and tried to find mention of previous cases that would bear on it but didn't find anything.

Also, the house doesn't have to impeach once beginning the process (process determined by the house, not the constitution, btw). So they apparently could also conduct and present their lengthy investigation to the public and then stop without the final vote to impeach.

One thing I haven't come across is what moves the Republicans might take, aside from heading for SCOTUS on some point or other. Could they hold a trial anyway, without the house "managers" acting as prosecutors of course, anyway, real or fake, either way finding Trump innocent in order to affect the election? There are no doubt dozens of invisible dots we can't see and can't connect.

[Nevilledog]

25. First time I had seen the proposal. Guess Tribe gets more visibility.

Off the top of my head, I don't think the Senate could have a trial because they can't come up with their own articles of impeachment. Can't have a trial if you don't have any charges. They could, however, hold dueling hearings and parade forth their cadre of whackbaskets to try and undercut the House testimony and evidence.

[Hortensis]

32. Tribe's visibility is very useful. As you say,

a senate trial would not be an impeachment trial; whether an actual legal trial on charges they brought or more likely strictly just a show, it could not be that. Perhaps they might, as you say, do "dueling hearings."

Anyway, that's just nonsense speculation pulled from the air, but the point is that these people are extremely powerful, ruthless and unprincipled and are in a giant battle for power. They would not do nothing.

[LiberalLovinLug]

14. Yup.

Walk softly ....and leave your big stick at home, is their mantra.

So that the American people will be so blown away by their sheer restraint, they'll come out in droves next year.

[Bernardo de La Paz]

16. Really? You say that? While the House is led by the UNPRECEDENTED Nancy Pelosi, first woman?

[Nevilledog]

17. Unprecedented proceedings. Has nothing to do with the genitals of any House member.

And Pelosi and I share this: no dangly bits.

[Hortensis]

23. :) Irrefutable repost. Unless you consider

her as preceding herself.

[Poiuyt]

5. I think this is a great idea!

Trump would forever be branded as an impeached president. I want future generations to see that.

[UniteFightBack]

6. I think that eventually impeachment will occur after Dem's get those financial documents. Fall is

better timing anyway. Let rump twist in the wind for the summer. Let the drumbeat continue. SLOW FUCKING BURN.

[fierywoman]

31. Let Spanky keep making mistakes, a la, " I didn't know about the Russians

helping me to win the election."

[world wide wally]

7. If we do this, I want to be able to watch McConnell hyperventilate

[Zambero]

12. Turtle's Ultimate Respiratory Distress

T.U.R.D.

[MontanaMama]

26. Thread winner.

I actually just spit out a grape laughing, by the way.

[barbtries]

35. no shit.

the evil bastard.

yesterday i think it was, Adam Schiff said he considered Barr the 2nd most dangerous man in the country. I think he's in 3rd place, and McConnell is number 1.

[JudyM]

42. I want to be able to watch *him* be tried.

[spanone]

10. K&R...👍🏼👍🏼👍🏼👍🏼👍🏼👍🏼👍🏼👍🏼

[SunSeeker]

11. K & R

[Princetonian]

13. Sounds like a good strategy. I suspect Nancy Pelosi is edging towards this decision.

It will certainly rally to the majority of American voters who believe he is guilty of corruption and collusion in time for 2020.

[displacedtexan]

18. Devin Nunes could be Trump's defense in the House "trial."

I'd pay money to see that.

[NewJeffCT]

22. Farmer Devin versus Adam Schiff, former US attorney and

Harvard Law graduate

[calimary]

20. Most interesting! This may be a way to "thread the needle."

[stuffmatters]

21. Best Plan of All. Mad respect to Lawrence Tribe.

I adore the idea that the House alone could try Trump, hold daily,televised hearings, educate the public to his crimes, give him the
opportunity to pleads his case,defend his innocence (the silencing factor to Mueller on outright declaring collusion) then vote on
guilt/ innocence.

Keeping it in the House renders Trump & McConnell's obstruction post facto and irrelevant if the House does a good enough job of using this inevitable "Must See Tv" to educate the Public and ultimately demand a vote from the R's in the House. It will also create
public aversion to the Trump protecting R Senate monolith, enough to maybe even cost McConnell himself reelection.

[yaesu]

24. I thought this was the plan all along as there was no way the fascists would ever help. nt

[onetexan]

27. BRILLIANT!! Best idea i've heard since Nov. 2016

Let's do it!

[lapfog_1]

28. however, if the pResident was smart... and we know he isn't

he would simply not participate in any House 'trial' and tell all of the "r"s to claim it's a sham a show trial, etc.

Many americans would view it as pure politics and not a serious effort.

The President and his supporters would claim that IF his evidence had been presented he would be exonerated.

not true... but Faux would broadcast it 24 x 7

[Progressive2020]

29. Brilliant

I did not know this about Impeachment in the House until Tribe wrote about it. I think this is a great idea: Impeach in the House, find Guilty, go beyond Censure, but do not send to a Senate controlled by Republicans.

This would really be great for the Democratic Candidates in 2020, as they will run in a climate dominated by the fact that the House has found Trump Guilty. House action will not remove Trump since Impeachment will not be sent to the Republican Senate, but the political atmosphere will be bad for Trump if the House grills him and his people. If Trump stonewalls, it is something for Dems to run on: No one is above the law, vote Trump out.

Anyway, glad that Tribe wrote this and it was posted here on DU. I think that the House should move ahead with this version of Impeachment in a way that is timed for maximum benefit for the Democratic Presidential Candidates. I look forward to debates where Democrats can basically say to Trump's face that Trump is an unindicted criminal.

[wryter2000]

30. Intriguing idea

Wouldn't give him a "victory" in the Senate, and as someone downthread suggested, it might give McConnell the fits. I'd love to see that after what he did to Merrick Garland.

[Quemado]

33. Brilliant!

Bypass the Senate!

[onenote]

34. The only part of this that I take exception to

is Tribe's characterization of what the House did in 1974, insofar as he makes it sound like the House adopted language "expressly stating that the president was indeed guilty as charged." That is not the case. The House Judiciary Committee approved three articles of impeachment; those articles nowhere declared Nixon to be guilty. Rather, each article ended with the statement: "Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office." That is essentially the same language as was used in the Clinton articles of impeachment.

While the Nixon example doesn't really match Tribe's description, the articles of impeachment adopted against Andrew Johnson are very close to that description in that they expressly declare Johnson guilty, ending with the following words: "whereby said Andrew Johnson, President of the United States, did then and there commit, and was guilty of a high misdemeanor in office."

Of course, the Johnson articles did get approved by the full House and go to the Senate where Johnson was narrowly acquitted.

I do think Tribe is on to something when he suggests that instead of articles of impeachment the House conduct an inquiry and adopt findings that it doesn't describe as articles of impeachment and that end with the type of declaration found in the Johnson example (not the Nixon example).

[hlthe2b]

36. Walter Dellinger & Claire McCaskell discussing Tribe's piece with Chris Hayes (MSNBC) now

[Hermit-The-Prog]

37. as of now, no Senate whitewash needed

It doesn't matter if there is a "Senate whitewash" if the treasonous bastards get away with it all, anyway. The news is not being filled with fact-finding; it's being filled with Trumputin's noise.

[hlthe2b]

38. Yeah, yeah, yeah. Read the actual piece. This might well be the approach that could break through

Sorry, but every damned post lately is met with "yada yada yada, we can't win, the MSM won't let us, the RW is too corrupt". It has just gotten really old.

[Hermit-The-Prog]

39. i did read it

It's essentially what a lot of folks right here on DU have been calling for since the Blue Wave hit the House. The airwaves should be filled with investigations, but they're not.

Maybe Tribe's piece will finally spark something public instead of rumors of secret multi-dimensional chess games that avoid hurting trumpers' fee-fees.

[CaptainTruth]

40. If I'm reading this correctly, a House verdict is "for show," it has no actual legal consequence.

Meaning conviction by the House will NOT remove Trump from office.

That's not to say it has no value, we could truthfully say Trump was "found guilty by Congress," & that's much better than saying he was acquitted by Congress (the Senate).

[hlthe2b]

41. Has no legal consequence regardless. Only post-Presidency charges and trial in civilian courts can

result in legal consequences. Impeachment is unique. They can arrive at a conclusion and the facts they present may well be used by a prosecutor later, but even if the Senate were to take up impeachment and vote to remove Trump, that would not, by itself result in criminal consequences (though either congressional body could make a referral of charges later on to Federal prosecutors)

Congress can investigate and in determining articles of impeachment, reach their own conclusions on guilt and announce it--whether they make the referral to the Senate or not. And, potentially that may aid later prosecution.

[VOX]

43. DO IT. It would eat at 45 the rest of his miserable life.

If today’s Republicans are solely motivated by “owning the libs,” then this lifelong Democrat wants to see their figurehead get what he’s earned: SHAMING.

No, it won’t change anything, but you just know it would eat at 45, being the third member of the Andrew Johnson/Bill Clinton club.

Harpoon the white whale— IMPEACH!

[hlthe2b]

44. Tribe will be on AM Joy Saturday (6/8/19) to discuss

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