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What if the House doesn’t send the impeachment articles to the Senate? Idea championed by Harvard Law’s Laurence Tribe garners attention

House Speaker Nancy Pelosi is seen following a vote on the two articles of impeachment against President Donald Trump in the House of Representatives on Wednesday,Matt McClain/The Washington Post

WASHINGTON - Some House Democrats are pushing Speaker Nancy Pelosi to withhold the articles of impeachment that are expected to be approved by the House Wednesday, an idea that has been championed by Harvard Law School Professor Laurence Tribe.

The notion of impeaching Trump but holding the articles in the House, which could delay a trial in the Senate for months, has gained traction among some of the political left as a way of potentially forcing Senate Majority Leader Mitch McConnell, R-Ky., to conduct a trial on more favorable terms for Democrats. And if no agreement is reached, some have argued, the trial could be delayed indefinitely, denying Trump an expected acquittal.


The gambit has gained some traction inside the left wing of the House Democratic Caucus this week. Rep. Earl Blumenauer, D-Ore., said Wednesday, as his colleagues debated the impeachment articles on the House floor, that he has spoken to three dozen Democratic lawmakers who had expressed some level of enthusiasm for the idea of "rounding out the record and spending the time to do this right."

"At a minimum, there ought to be an agreement about access to witnesses, rules of the game, timing," Blumenauer said of a Senate trial.

Another Democrat, who spoke on the condition of anonymity to discuss internal deliberations, said there is "serious concern about whether there will be a fair trial on the Senate side" and acknowledged active talks about withholding the articles.

The notion has been most prominently advocated by Tribe, a Harvard Law School professor who is a harsh Trump critic and has advised the House Judiciary Committee on the impeachment process. In a Washington Post op-ed this week, he wrote that “the public has a right to observe a meaningful trial rather than simply learn that the result is a verdict of not guilty.”


In a tweet Wednesday, Tribe said the House had the right to hold the articles. “Senate rules requiring the House to ‘immediately’ present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules. It’s up to the House when and how to prosecute its case in the Senate,” Tribe said.

Tribe also tweeted that he thought Blumenauer’s idea “makes great sense. But I’m not objective: I’ve been advocating it from the start.”

On the Senate side, US Senator Chris van Hollen said on MSNBC-TV Tuesday night, “Another alternative, which I think should be considered, is Speaker Pelosi could hold the articles of impeachment after they’ve been voted in the House and say to Mitch McConnell, ‘Look, we want to make sure there’s a fair trial in the United States Senate.’”

Laurence Tribe, professor at Harvard Law School. Susan Biddle/The Washington Post

Senate Minority Leader Charles Schumer, D-N.Y., has asked McConnell to call several Trump administration witnesses, including acting White House chief of staff Mick Mulvaney and former national security adviser John Bolton. McConnell has dismissed those requests and signaled that he expects to hold a relatively short trial that will end with a summary dismissal of the impeachment charges.

Republicans have scoffed at the notion of the House withholding the articles, noting it hardly counts as leverage to deny the GOP the ability to remove a president that the party wants to keep in place. Some aides further argued that withholding the articles would only fuel Republican arguments that Democrats are engaged in a partisan abuse of the Constitution.


A spokesman for McConnell, Doug Andres, declined to comment, as did a spokesman for Pelosi, Drew Hammill.

But Democratic leaders may be forced to deal with the issue in the coming days. Blumenauer said he had already raised the issue with Pelosi, D-Calif.; House Majority Leader Steny Hoyer, D-Md., and other top party leaders.

Speaking to reporters Tuesday, Hoyer did not rule out the idea: "It's an interesting proposal. I don't think that that's the path we will follow, but that does not mean we will immediately deliver it. There are considerations related to other legislation."

A senior Democratic aide who spoke on the condition of anonymity to describe internal deliberations said the impeachment articles will not be immediately transmitted to the Senate Wednesday. Rather, they will be held until Pelosi names impeachment managers, the House members who will present the case for Trump's removal in the Senate.

"There will be a debate and vote on that resolution" naming the managers, the aide said. If a significant number of Democrats refuse to vote for that resolution, they could force the issue.

The timing of that vote is unclear; the House is expected to recess for the winter holidays as soon as Thursday and not return until Jan. 7.

Blumenauer said that if McConnell does not agree to call the Democratic witnesses and stage a fair trial, he said, Democrats could simply hold on to the articles indefinitely and continue to investigate Trump. The House is involved in multiple court cases seeking documents and testimony that have yet to be resolved.


"Who knows what would happen to augment the record? This ought to be able to play out," he said. "There's no advantage to rushing this."

But the notion of prolonging the impeachment process indefinitely is almost certain to infuriate House members from competitive districts, who have pushed Pelosi for months to keep the investigation focused and limited to Trump's Ukraine conduct.

Blumenauer declined to discuss whether members interested in the gambit would withhold their votes on naming managers to force the issue: “I’m not interested in sparking controversy in the caucus,” he said.

Martin Finucane of the Globe staff contributed to this report.