Democrats and left-wing legal scholars are debating a new idea floated in the Washington Post on Friday: that Speaker Nancy Pelosi (D-CA) should withhold the first article of impeachment (“abuse of power”) and only send the second (“obstruction of Congress”) to the Senate.
Pelosi told her caucus on Friday that she would be prepared to send the articles to the Senate this week, capitulating without winning any concessions from Republicans after delaying the trial for four weeks.
“Never Trump” lawyer George Conway and former acting solicitor general Neal Katyal wrote Friday afternoon in the Post that Pelosi should send the second article of impeachment to the Senate, because the issue of obstruction was “ripe” for trial. They claim there is no further evidence needed to establish that Trump attempted to stop the House from investigating him. (They ignore that the Supreme Court agreed in December to hear a set of cases involving presidential objections to congressional subpoenas in investigations, thus destroying the legal basis for the “obstruction of Congress” argument.)
Conway and Katyal then argue it is impossible to hold a trial on the first article, which alleges Trump abused his power by using U.S. aid to pressure Ukraine to investigate Joe Biden, because of a lack of witnesses. They blame Trump for the lack of witnesses — not the House’s refusal to call some of them, or to wait for the court to rule on whether they had to appear.
Holding the first article back and letting the second go forward would be a powerful and precise response to McConnell’s unprecedented attempts to avoid committing to a real trial. It makes practical sense but also highlights what’s at stake here. Trump would be forced to undergo two impeachment trials instead of one — but that’s a fair price for him to pay for his attempts to hide evidence from the American people.
The House will hold procedural votes on the articles this week.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.