By Harry Litman
The Washington Post
A principal reason for the House Democrats’ reluctance to pursue an impeachment of the president is that all roads seem to lead nowhere in the Senate.
Put another way, Senate Majority Leader Mitch McConnell (R-Ky.) has so far adopted a nothing-here-case-closed stance that makes any House determination to impeach President Trump look fruitless and, therefore, politically perilous.
But Harvard law scholar Laurence H. Tribe has advanced a proposal that potentially provides a way around the brick wall.
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.
Third, a Sense of the House resolution would provide some sort of reckoning for Trump’s outrages. It would stand as a scarlet letter, branding Trump in history as a sort of constitutional outlaw.
But in part because of its very novelty, Tribe’s proposal could fall prey to either of two nontrivial constitutional challenges.
First, Trump could argue that a Sense of the House resolution amounts to a “bill of attainder” under the Constitution. That obscure provision forbids the legislature from singling out persons for punishment without a trial.
The issue will come down to whether the stigma that a Sense of the House resolution purposefully imposes on Trump amounts to a “punishment” within the meaning of the bill of attainder prohibition. The House will emphasize that a resolution deprives Trump of neither money nor liberty, and argue instead that its principal motivation was not to punish but to get at the truth. Trump will counter that the resolution imposes, and was intended to impose, a real punishment in practical terms.
The House should have the better of the argument. The Supreme Court has made clear that not all legislative actions that inflict harm punish. And the desire to provide an authoritative factual account is a valid non-punitive objective. Still, the House should be careful not to present an investigation and possible resolution as a means of punishing Trump short of a removal by the Senate.
Second, the White House is likely to argue that the Tribe path lacks any valid legislative purpose. The Supreme Court has made clear that the House’s investigative powers are adjunct to its core legislative function: Investigations are proper to the extent they are potentially driving at a valid legislative enactment (which must include impeachment since it is constitutionally designated). A free-floating, Sense of the Congress resolution doesn’t fit nicely within any of Congress’s Article I powers.
Tribe sees this problem. It is one reason that he is careful to insist that the possibility of a referral to the Senate for trial not be taken off the table. The House would provide for a possible off-ramp to bypass the Senate altogether but still hold open the possibility that a sufficiently damning set of factual determinations could lead to a trial in the upper chamber.
Here again the House should be able to fend off the legal challenge so long as it has not entered into the project by foreclosing the possibility of a referral to the Senate.
Is the proposal bulletproof? No. But it is a promising way forward that could break the Senate Republicans’ hammerlock and consign them to the sidelines, which is where they deserve to stay if they continue to pretend that the president is the blameless victim of a Robert Mueller-led witch hunt.