Harry Litman approves Lawrence Tribe's alternative path in impeachment.

[Grasswire2]

[link:https://www.washingtonpost.com/opinions/2019/06/10/can-democrats-break-republican-hammerlock-impeachment/?utm_term=.9442d52a829c|

Here's part of it.

Tribe’s fundamental insight is that the House could pursue a full-bodied investigation of the president, including an opportunity for Trump to mount a defense, without committing itself to a referral for trial in the Senate.

Rather, the House could culminate its investigation with independent “fact-findings” leading, if those facts bear out, to a “Sense of the House” resolution detailing Trump’s offenses against the Constitution.

There are a number of apparent virtues to Tribe’s proposal. Perhaps most importantly, it provides an outlet for House members to respond to the extraordinary gravity of the president’s assault on the rule of law.

However politically expedient, the idea that the House could simply give a pass to the president’s conduct and await the electorate’s verdict in 2020 is intolerable. Doing nothing is an offense to their own oath of office, and would at worst sanction and at best trivialize Trump’s shameless ransacking of constitutional order.

Second, an investigation culminating in a full factual account and a Sense of the House resolution would be a counterweight to the official narrative from the Justice Department in the form of Attorney General William P. Barr’s ludicrous reading of the Mueller report, which, as it stands, is the sole official judgment on the facts of Trump’s conduct. As with the reports of the 9/11 Commission and the Warren Commission, the country needs a credible official narrative that fairly lays out the facts and reaches fair and broadly accepted conclusions.

[hlthe2b]

1. Nancy will have to give this some consideration. There is no way she CAN miss this...

I'd bet half her caucus has printed it from WAPO for her.

[StarfishSaver]

4. I'm sure she's considering it. I wouldn't be surprised if she's discussed it with Tribe privately

But, here's the thing. Professor Tribe's advice is a hybrid of constitutional analysis and political strategy* so the weight she gives it will depend on which part of the advice she's considering.

He's saying that the House has the right and power under the Constitution to hold hearings that result in Trump being convicted in the House. And then he stresses that this is the best way to get the attention and support of the American people, who will respond to all of this favorably.

The first part of the advice is right in Professor Tribe's wheelhouse. He's a brilliant Constitutional scholar and his interpretation, views and advice on its applicability and the House's power under it merit tremendous deference if not outright acquiescence.

However, the next step in his analysis and advice isn't focused or based on constitutional powers and prerogatives, but offers political advice - e.g., why his proposed course of action will trigger the most favorable public response. His political savvy - which is surely considerable - notwithstanding, this is Nancy Pelosi's wheelhouse.

Pelosi has several options she can pursue. Professor Tribe has presented her with one and has assured that it is constitutionally viable. But I will leave it to Speaker Pelosi to determine whether this is the best course of action since she must - and has the chops to - weigh and assess and balance a variety of considerations beyond the Constitutional efficacy of each action.

*Tribe's piece in the Washington Post focused much more on his Constitutional analysis and didn't stray too far into the political weeds. However, in subsequent interviews, he's expanded his advice to the political benefits of taking the action he suggests.

[hlthe2b]

5. He's gotten feedback from experienced politicos though, so I don't think he's speaking through a

purely constitutional lawyerly lens. This has been popping around his twitter feed for more than a week now so if you have the time, you'll see some heavyweights have provided positive feedback on a number of related threads.

I give Pelosi her due, but it is important that she considers all options sans any blinder-based preconceptions. I don't see value in censure, but if she won't go the full distance on impeachment, then she's got to find a middle ground. We can not go into the 2020 election with a large number of our base and independents thinking we won't fight, especially after Bush*-Cheney were not held accountable for lying us into war.

[StarfishSaver]

7. Sure - I'm not saying his political view isn't well-founded. As I said, he has a lot of political

savvy. But when he's talking political ramifications, he's in Nancy Pelosi's area of expertise.

And part of her expertise is that, like most smart, effective people, she gathers information and advice from many different sources. Then, again like most smart, effective people, she considers it weighs it against all of the factors she's dealing with, synthesizes it, and then makes an intelligent decision.

My point is that, while Professor Tribe's constitutional analysis - i.e., that the House has the power to do what he's recommending - is probably unassailable, his position and expertise as a brilliant law professor does not mean that Pelosi has to simply unquestionably accept his political guidance just because it came from him.

[Laura PourMeADrink]

26. "political ramifications" ?? It is SO not about

that. Why we are in the murky place we are in now. Where is the unadulterated call for justice? The unabashed liberal voice like a Kennedy or someone like Mario Cuomo? Who speaks not about number counting and politics but spoke about truth and justice and doing what is right? That trumps ALL. What America is so hungry for.

Fairly, you really can't expect a person who does an excellent job at what they are truly good at to set such an urgent, consequential & important path forward for our country and the world.

[BigmanPigman]

2. Litman and Tribe were just on MSNBC's "All In".

[napi21]

3. Tribe was on MSNBC just a few minutes ago. The way he explained his idea was not for the House

to give Orangeman a pass, but to censure him. Tribe' word "He then would to carry the car of censure for the rest of his life. It's not removal from office, but it's not a pass either.

[hlthe2b]

6. It is more than censure though. It would be full investigational hearings resulting in "findings"

An actual "call" on guilt---even if a referral is not made to the Senate (or if one is made knowing it will be too late to take up).

[FBaggins]

9. Which will never happen

What it really is... is an attempt to shift the “trial” phase from the Republican Senate to the Democratic House.

The appeal is obvious. The question is why any Republican would play along.

[hlthe2b]

10. House Republicans are not in control.

If you think they won't participate in televised impeachment hearings, I got a bridge to sell you. And once the facts are laid out, their constituents have had a chance to learn at least a little bit of it, they can vote a big show of support for Trump at their own peril.

[FBaggins]

13. In this case, neither are House Democrats

This isn’t talking about impeachment hearings. It’s talking about a quasi-judicial newly-invented process where the House holds a trial and determines guilt on their own (including an opportunity for the accused to “mount a defense”). It’s an attempt to create something other than impeachment hearings because the votes aren’t currently there.

The problem is that the House holds no such power and cannot grant it to themselves. “Sense of the House” proceedings do not come with the authority to subpoena information (let alone compel testimony), and would lack legitimacy absent a defense (which trump has no reason to give).

The House could vote on censure right now... what they can’t do is create a process that results in “findings of facts”, etc.

[hlthe2b]

16. In fact they can. If you know more than Laurence Tribe, Neal Katayal,, Norm Eisen,

and about a dozen other constitutional experts then please do provide us your creds so we can publicize to others.

Maybe try actually reading the article one of these days.

[FBaggins]

20. Laughable

Maybe try actually reading the article one of these days.

Hilarious, considering it recognizes exactly the problems
I cited.

[hlthe2b]

21. still waiting for those creds...

and some semblance that you actually did read it, which does not seem the case.

[FBaggins]

24. " doesn't fit nicely within any of Congress's Article I powers."

Hint... Tribe proposes a (transparent) strategy for getting around this...

... but doesn’t even hint at why the Supreme Court wouldn’t laugh at him (given their current membership)

[hlthe2b]

25. Article 1 powers. PERIOD.

I know that was a great Holiday Inn Express in Cambridge, but, really...

I'll stick with all the constitutional experts on these matters.

[FBaggins]

27. Such an odd argument

It’s those constitutional experts saying it doesn’t fit nicely within those powers. You know... from the article you’re pretending that I didn’t read?

But by all means... cite the Article I power to which you are referring.This should be entertaining.

Of course we all know this will not happen. You will instead just proclaim that your appeal to authority forecloses any such need (rather than accepting it for the fallacious argument that it is).

[hlthe2b]

28. No. You are not worth my time.

Those who boast they know more than the nation's most elite constitutional authorities yet show they haven't even read what they are discussing are definitely not worth further exchange.

[FBaggins]

32. Contradicted by your compulsive need to reply

As I said... entertaining if nothing else.

[Cuthbert Allgood]

17. Hmmm FBaggins says they can't do it; Tribe says they can.

Sorry, I'm going to go with the constitutional expert over random, anonymous DU poster.

[hlthe2b]

22. LOL... Gee, ya think?

[FBaggins]

23. No... Tribe doesn't say they can

He proposes a strategy for getting around the Constitutional problems... that is convincing perhaps to him... but to this Supreme Court?

And when that court says “um... you can’t do that” ??? Trump wins.

[Cuthbert Allgood]

34. He absolutely says they can.

He clearly points out that there is no constitutional requirement that the House send the articles of impeachment to the Senate for a trial and there is nothing that says they can't just publish their own findings.

Trump doesn't win if he gets impeached. That stays with him. All the evidence comes out. Fuck the Republicans in the Senate. If they aren't going to do their job, that doesn't mean that the House can just avoid their constitutional duty. The Senate needs to deal with their own lack of action.

[Grasswire2]

38. This path seems to frighten some here. nt

[FiveGoodMen]

45. So, we'll be satisfied with just hurting his feelings?

[Honeycombe8]

8. Do our Dem leaders in the House know this? Why haven't they mentioned this before?

Hmmmmmm.

OTOH, a FULL investigation would be a monster to handle. It took the Mueller team, a whole team of the best specialized lawyers in the country, two full years. I don't think politicians are up to a task like that. They're politicians, not professional investigators. And Trump will stonewall it, taking it to the Supreme Court. He will not go gentle into that good night.

And in the end, would an impeachment hearing have the same effect? To have the same crimes spelled out? Can't they use the evidence that the Mueller team got already, if they open an impeachment hearing?

[Martin Eden]

11. What would a "Sense of the House" mean to the general public?

To most people it wouldn't be anything but a political statement, easily dismissed and soon forgotten.

It doesn't carry the weight or the stigma of impeachment by the House. Not even close.

Also, it lets the GOP Senate off the hook. I'd rather have them carry the stigma of dereliction of duty -- giving a free pass to a POtuS whose high crimes clearly warrant removal from office.

[hlthe2b]

12. They complete the process they can decide then whether to refer articles of impeachment...

Nothing says they can't vote them out and send them to the Senate, but Tribe proposes they also weigh the evidence and come to a conclusion as to guilt. Thus, if the Senate sits on it, Trump would have still been both impeached and tried--at least to the extent possible.

[Martin Eden]

15. A conclusion of guilt demands impeachment

I'm all for conducting a thorough investigation and putting all the damning evidence before the public, then making an assessment of guilt based on that.

Guilt brings forth the duty to impeachment.

If Tribe's solution is merely a different process to arrive at the same result, I have no problem with that.

But if it goes no further than a " Sense of the House: -- even with impeachable high crimes -- it makes no sensse to me.

[hlthe2b]

18. The opinion piece has been posted her numerous times. You need to read it

Link to tweet

Tribe's original piece:
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=.50c6b8652833

[Cuthbert Allgood]

19. This process would bring everything out, plus

it would make it clear that Republicans in the Senate won't do what they should do once all the evidence is out there. Not only is that a win for perception of the public, Tribe makes a very strong case that doing this is the constitutional duty of the House Dems.

[onenote]

31. Wouldn't that be equally apparent if the House impeached and the Senate acquitted?

[Cuthbert Allgood]

35. Sure, but the House doesn't need to give the Senate the chance to acquit.

That is Tribe's point.

[onenote]

37. Which will simply allow the repubs to change the subject from the findings to the failure to follow

the Constitutional process. And its almost a given that the media will focus more on that than on the findings adopted by a straight party vote in the House after a proceeding in which the President and others will refuse to participate.

I understand why Tribe is pushing this idea, but I really don't see it as a particularly good approach. The House could conduct an impeachment inquiry and adopt articles of impeachment and time the whole thing so that it doesn't get to the Senate before the election.

Indeed, even if the House adopts impeachment, it would still take a further action by the House to adopt a resolution naming managers and directing them to present the articles to the Senate before the Senate could say or do anything.

[onenote]

30. Agreed.

Inventing a new process to get around the impeachment process would be an easy target for the Republicans.

[Laura PourMeADrink]

14. Love this line

Doing nothing is an offense to their own oath of office, and would at worst sanction and at best trivialize Trump’s shameless ransacking of constitutional order.

[Duppers]

29. K & R

[Ligyron]

33. The most important thing is to get National MSM coverage.

Hopefully all day full coverage dominating the airwaves and media in order to educate the public.

Impeachment has the best chance at:

1. Enforcement of subpoenas.

2. Getting such coverage.

"Hearings"? meh...

[hughee99]

36. I can honestly think of nothing worse than the house making the case

For impeaching Trump and then NOT forcing the Senate to vote on it, other than just ignoring the whole thing.

If the House can make the case, and then doesn’t send those charges to the senate, it’s not an “alternative path to impeachment”, because it’s NOT impeachment. It’s little more than political grandstanding. If they can make the case, it’s their job to make it.

[Grasswire2]

39. that's the point of this path

Make the case. As openly and publicly as possible.

By the end of that process, the American people will be well aware of the fact that Republicans have been obstructing justice and hiding criminal actions.

And the American people will understand VERY WELL if the only result at that time is censure. Let Congress vote on censure. Let the people see who the quislings and collaborateurs are in the greatest scandal in American history. Treason.

[hughee99]

40. If you want it to be as open and public as possible, you send the charges to the Senate and have an

actual impeachment trial. You make the case and force the republicans in the Senate to either support Trump or turn on him. Put each and every Senator on the spot to do their job. If the house feels like Trump should be impeached, and that they can make the case for it, it's their JOB to do it.

Saying "We think he should be removed, and we believe we can make the case" and then not do it is political cowardice. The public opinion will turn on the strength of the case. Those who say that the Senate acquitted him, so he must not have done anything wrong, aren't going to be swayed by anything the house does anyway. Those who agree with the House would be the "choir", you don't need to preach to them and the Senate vote won't matter to them anyway. This is for the undecided, and the best way to get them to pay attention is to have an actual Senate trial.

What this path is, is a way to make political hay from the issue without actually doing what they're supposed to do about it.

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

If they can make the case, they know what they need to do (make the case to remove him from office) and they believe they can do it, what valid reason would the have to NOT do it? If you say that they shouldn't do it because sending it to the senate may hurt Dems politically, you're admitting that it's okay not to do their job when it's a political liability.

[Cuthbert Allgood]

41. The House would impeach.

You are arguing that this isn't a path to removal.

[hughee99]

42. If the house doesn't bring charges to the senate,

Did they actually “impeach”? And if they can’t get 2/3rds of the house to vote for the charges, can you even pretend like this is the next best thing? If the actual goal of s to make the case in as public forum as possible, you do that by sending charges to the senate, not from some sort of mock trial in the house.

[Cuthbert Allgood]

43. Yes. The House impeaches regardless of what the Senate does.

If they vote to impeach, Tribe is saying they aren't required to send it to the Senate. The Senate removes from office. Those are two things. That's why Clinton was impeached but remained our president. It isn't a "mock trial" in the House; it's them impeaching the president and then telling the Republicans in the Senate to go fuck themselves.

[hughee99]

44. That's not exactly what Tribe is recommending...

“The House can say, ‘We are reaching our own conclusion after a full and fair hearing. We find that Donald J. Trump has committed the following serious criminal offenses, the following high crimes and misdemeanors.'” (Quote from tribe)

He’s not suggesting they just come up with impeachment charges, as the house would in a normal impeachment, but that they have some sort of hearing intended to determine guilt or innocence (what the senate would normally do). So yes, a mock trial in which the outcome has no relevance to the actual impeachment process.

In short, we believe the president should be removed from office, but we’re not going to even attempt to actually do it. It’s like a grand jury coming up with charges and declaring a suspect guilty, but not sending it to an actual trial.