Editor’s Note: Joseph J. Ellis is an American historian who won the Pulitzer Prize for “Founding Brothers.” He is the author of “American Dialogue: The Founding Fathers and Us.” The views expressed here are the author’s. View more opinion on CNN.
Let’s call it the Pelosi Pause. There are no written rules governing the timetable for delivery of the House decision impeaching Donald Trump to the Senate, only custom. But then there were no written rules governing the timetable for a Senate decision on Barack Obama’s nomination of Merrick Garland, only custom. If Speaker Nancy Pelosi follows Senator Mitch McConnell’s playbook, Donald Trump will never stand trial in the Senate.
From a Democratic perspective that outcome would be preferable to a show trial, where the conclusion is not just foreordained, but announced beforehand by the Majority Leader after consulting with White House counsel. It’s perfect: a rigged trial of a President accused of plotting a rigged election. We can only assume that Senator McConnell will be winking at the camera when he takes the oath of impartiality, “so help me God.”
Pelosi need not wink, she only needs to wait. How long? Until November 2020, if necessary. McConnell claims that he has all the leverage because he has the votes in the Senate, and that, not the evidence described in the impeachment report, is all that counts. But it counts for nothing until the Senate receives the impeachment recommendation from the House.
This is what Speaker Pelosi knows, and that could be why she is waiting. One could argue, and presumably pragmatic colleagues may be urging this course, that Pelosi and Senator Schumer should negotiate the best deal they can get and trust that some vestigial residue of bipartisanship still lingers in a few Republican senators, who might force McConnell to conduct a fair trial.
Dream on, Macduff. The Republican performance in the House impeachment proceedings made crystal clear that there is no Republican Party, only the Trump Party, which conducts itself according to Trumpian standards of civility and statesmanship, meaning like trained seals. Trusting in bipartisanship in McConnell’s Senate is a surrender strategy.
Let me propose an alternative course for Pelosi. Apprise McConnell that she will forward the impeachment recommendation as soon as the Supreme Court rules on the three cases currently pending in the lower courts concerning the president’s refusal to provide the documents and witnesses requested by the House Intelligence Committee and the tax returns requested by the Ways and Means Committee. The Supreme Court has already agreed to take the latter case. Chief Justice John Roberts can be urged to accelerate the schedule in all three cases, and report the verdicts prior to the customary end of the Supreme Court session in June.
In all three cases, White House lawyers have made the same argument; namely that the President has the constitutional authority to ignore all congressional requests, because he cannot be indicted, convicted, or investigated. In brief, as President he stands above the law. All the lower court rulings thus far have dismissed this argument as frivolous. Perhaps the cases can be bundled and decided by the Supreme Court sooner rather than later.
If the decision follows the precedent set in Nixon v. United States (1974), where the Supreme Court ruled, quite quickly, that Nixon had to release the White House tapes, then witnesses and documents unavailable to the House will become available for a Senate trial. Polls indicate that a majority of Americans prefer a full and fair trial that includes such testimony and evidence. If McConnell refuses to yield to the political process that generates, Pelosi can stand pat until he caves. If never, so be it. It must be a full and fair trial or nothing.