No Impeachment Trial? It Could Happen

In a fascinating op-ed piece published by CNBC online, editor John Ellis argues that Nancy Pelosi’s best political move might be to use what he calls her “pocket veto.”

Before examining his argument, let’s consider some background. Spirited Reasoners will recognize the “pocket veto” phrase from a course in civics or constitutional law. It happens when a U. S. President (not the Speaker of the House) decides to veto an act without doing anything at all. By failing or refusing to sign an act that finds its way to the President’s desk toward the end of a Congressional session, the President figuratively puts it “in his pocket,” allowing it to die on its own because Congress is no longer in session (and therefore would not be able to override an actual written veto). Why would a President behave that way? Because it’s easier, and less newsworthy, than vetoing a bill when Congress is in session.  

So, how does Mr. Ellis apply this phrase to a legislative leader like Nancy Pelosi?

By refusing to send articles of impeachment to the Senate—in essence, “pocketing” the impeachment—she can continue to hang what amounts to an indictment over the President’s head all the way through Election Day, thus depriving him of a victory dance.

It’s easy to see why she would choose such an option. When the President complains that he is not being given a fair trial, she can simply draw the public’s attention to recent remarks made by Senate Majority Leader Mitch McConnell, who promised to coordinate the impeachment trial with White House lawyers.

“Why should I cooperate with that sort of biased arrangement?” she can argue.

The harder question is why Senate Republicans would allow her to get away with that approach. After all, the Constitution is not clear on the absolute requirement that House leaders walk the articles over to the Senate. One could argue that if senators are so desperate for a trial, they could use the articles of impeachment as published by the House and go forward with a trial. It’s never happened that way before, but that doesn’t mean the Senate couldn’t find some lawful way to make it happen.

But Speaker Pelosi is betting that Senate Republicans won’t do that. She knows they want no part of an impeachment trial. This sentiment was borne out by remarks uttered this past week by Louisiana Sen. John Kennedy, who told reporters that no one in the Senate is eager to move forward.

Why don’t they want a trial, if they have the votes to ensure an outcome in the President’s favor?

Because a fair trial would permit witnesses to present very public evidence damning to the President’s case. And any attempt to prevent those witnesses from testifying would be viewed as a scheme to whitewash the impeachment process.

If John Ellis is right, we might be in for an election year in which President Trump keeps complaining that he has been denied due process. Meanwhile Democrats, pointing to Mitch McConnell’s remarks, can be expected to respond that due process has been rendered impossible.