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

[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

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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.