Yesterday I wrote about using anti-hardball reform tactics to blunt GOP power grabs and preserve democratic institutions.
People have been asking whether Pelosi is playing constitutional hardball with the Articles of Impeachment.
I don’t think so.
When we’re talking about Pelosi, it’s important to look at her exact words. What she actually says is often twisted and changed. My observation is that people often read into her words things that are not there.
A transcription of her press conference is here. The pertinent parts are here:
If you take her literally, she’s saying this: She doesn’t want the impeachment instantly behind us and before selecting the managers (and deciding on the number of managers) she wants a sense of what the trial will look like.
She says she “hopes” that the Senate will come to a bi-partisan plan of how to move forward, but, either way, “we’re ready. When we see what they have . . .”
The kind of trial will definitely affect the kind of managers she selects. For example, if there will be cross-examination, I’d expect her to appoint Barry Berke. That’s his strength. If there’s no cross-examination, she might not select him.
The House voted on the articles of impeachment on Wednesday. Friday was the last day before a two week recess. That means it has been exactly two business days. The GOP argument seems to be, “She did everything else fast, why not this?”
Not doing something fast isn’t Constitutional Hardball, which, recall, is defined this way:
It seems to me ridiculous to suggest that not completing the next task in a mere two days is Constitutional Hardball.
Why is she doing this? All kinds of motives and strategies have been attributed to her, but she said she doesn’t want everyone “to move on to the next thing.”
Two weeks gives time for people to mull it over and contact their Senators. Senators will be at home, answering difficult questions from family, friends, neighbors, and constituents. There is time for public opinion to adjust. There’s time for people to read and write Op Eds. There’s time for Senators to maneuver behind the scenes.
Not sending the articles immediately gives her some negotiating muscle. She has McConnell worried. Time, even two weeks, works against McConnell because he doesn’t want people thinking too much about this.
If she’s angling to give Schumer a competitive advantage in negotiations, that’s hardly Constitutional Hardball. She’s just forcing McConnell to sit on a hot seat a little longer.
I just don’t see forcing everyone to chill for a few weeks as Constitutional Hardball.
When I read her exact words, I don’t see her saying any of that. I’ve learned to take her literally. I was on an impeachment panel in Sept. A co-panelist (a prosecutor and friend of William Barr) said, “Pelosi won’t impeach Trump.” I said, “Yes, she will.” Now he probably thinks I had a crystal ball. Nope. I listened closely to her words and took her literally. It was clear to me all summer that she intended to impeach Trump once she had enough evidence so that she could get public opinion behind her. She also knew the Ukrainian story was unfolding because it was right out there in the open.
Jon asked how long the delay turns into hardball:
It depends on what else is happening. (In law and politics, “it depends” is always a correct answer.)
As Pozen’s article makes clear, it isn’t always easy to see when someone has crossed the line into the kind of constitutional hardball that breaks democracy.
As House Speaker, Pelosi doesn’t control the Senate trial. If she tries to control the Senate trial and dictate terms, I would say she’s overreaching and playing Constitutional Hardball in a destructive manner.
I can see it taking a week or longer for her to decide on which managers to send. If she appears busy in meetings trying to select the managers, I think she can drag it out a bit more.
If she says, “No managers until you agree to my terms for a trial,” I’d say she has overstepped.
I also don’t think there is any need for her to do that.
If you start with the assumption that Trump will not be removed (expecting 17 Republican Senators to remove when Trump remains popular in many areas isn’t realistic) you can see that McConnell is nonetheless in a lose-lose situation.
If McConnell refuses to call witnesses and if it’s obvious that the trial is a sham, only Trump’s hardcore supporters will think he was exonerated.
Remember, Trump is underwater right now with approval. The GOP lost big time in 2018. If the trial is an obvious sham, the GOP will be further damaged. Let’s suppose that later in the spring, when the House gets Trump’s financials, they vote to censure him (there probably won’t be time to impeach again). He won’t be able to blame anyone but himself for the timing, right before an election. Had he not obstructed, the truth would have come out sooner.
It will become clear to even more people that McConnell and the GOP shielded a law-breaking president. 2020 will turn into a bloodbath for the GOP.
McConnell can’t win this. A fair trial will decimate the GOP by showcasing Trump’s crimes. A sham trial will be obvious to everyone.
McConnell can pick between two bad choices.
Removing Trump won’t save democracy. A 2020 GOP landslide loss will.
Pelosi is not the only Democrat being misquoted on this issue. This Newsweek article has this headline:
The article opens with quotes from Republicans talking about how awful it is that Pelosi is holding the articles of impeachment and not sending them over. The article then summarizes Jones as saying this:
In fact, what he said was this:
The problem with misquotes is they set up false expectations. The false expectation is that Pelosi is going to throw her weight around and demand that the Senate conduct a fair trial, or she won’t send the articles over.
When false expectations are not met, Democrats think they’re losing.
Jones mentioned that it took 3 weeks for the House in Clinton’s trial to send over the articles, and used the word “soon” to describe when Pelosi would send the articles.
People simply reading headlines will think Pelosi announced that she’ll hold the articles until the Senate agrees to a fair trial. Demanding a “fair” trial sounds great, bit who decides what is fair? As an appellate lawyer I have spent much time arguing that a particular trial wasn’t fair, while others argued that it was. “Fair” is a bit imprecise.
In fact, what Pelosi said was that she wants to know what kind of trial it will be.
She’s not trying to dictate terms. She’s trying to shine light on the truth.
