RUTHFULLY YOURS

The Journal’s Natalie Andrews reports:

The California Democrat’s next step will be pushing Senate Majority Leader Mitch McConnell (R., Ky.) for what she considers a fair hearing on the impeachment articles. The House adjourned for the year on Thursday without sending articles to the Senate, which would automatically trigger a trial.

“We just want to see what process they’re going to use so we can determine who and how we put together our managers,” she said in an interview in her Capitol office. She added that Democratic lawmakers are clamoring to act as prosecutors in the trial.

Republicans have criticized the delay, given that Democrats have characterized impeachment as an urgent matter. “The prosecutors appear to have developed cold feet,” Mr. McConnell said.

One legal expert tells this column that since the House has not appointed impeachment managers or sent the charges to the Senate, so far the House has essentially voted merely for “censure on steroids.” But didn’t they tell us they had an urgent mission to save the Republic and the rule of law from Donald Trump ?

Constitutionally, it seems that Speaker Pelosi can choose to do nothing further. And if she ever does transmit the articles of impeachment to the Senate, lawmakers in the upper chamber will also have a lot of discretion.

In 1999, after the Clinton impeachment and Senate acquittal, Yale law professor Akhil Reed Amar wrote in the Hofstra Law Review:

Article I, Section 2, of the Constitution gives the House the “power” to impeach, but imposes no duty to impeach. The Framers knew how to use the word “duty”–indeed they used it twice in Article II-and so there is no ambiguity here. House impeachment is about power, not duty-about choices, not obligations… Just as a grand jury can legitimately decline to indict and a prosecutor may legitimately decline to prosecute as a matter of discretion-fairness concerns, resource constraints, bigger fish to fry, avoidance of undue harm to third parties-so too the new House may decide that the President and, more importantly, the nation have suffered enough…

Like trial jurors, Senators have the inherent power to acquit against the evidence-to decide, as the conscience of the community, that even if the charges are true, they do not warrant a conviction. Just as a trial jury may spare a guilty defendant even though a grand jury has properly indicted, so the Senate has the inherent power to be merciful even if a House majority seeks its pound of flesh. But the Senators are not merely jurors; they are also judges as well (mirroring the twin roles of House members as both grand jurors and prosecutors). Thus Senators are no more bound by the House’s judgment about what qualifies as a “high crime or misdemeanor” than ordinary judges are bound by ordinary prosecutors’ (sometimes overly zealous) interpretations of ordinary criminal laws. If a majority of Senators believe that the conduct in question is simply not impeachable, or does not warrant undoing a national election, they can and should simply dismiss the charges up front in a kind of Senate summary judgment.

Once again, it will be argued that the Senate has a legal and constitutional duty to put the country through a grueling, expensive, disruptive, and salacious trial, if this is what a House majority demands. And once again, this view reflects constitutional confusion. Article I, Section 3 gives the Senate the “Power to try all Impeachments” but says nothing about the duty to do so. Procedurally, the Senate may vote to end proceedings at any time if a majority of Senators agree to a motion to adjourn the trial.

Meanwhile, as more facts emerge on a previous effort to thwart the will of 2016 voters, Mr. Comey is making another wholly unbelievable claim. Consistent with his incredible 2018 testimony in the House, the former FBI boss asks Americans to believe that he remained far removed from the most consequential case he has ever managed. In a television interview this week on the 2016 surveillance of a Trump campaign associate, Mr. Comey tried to place himself bureaucratic miles away from the scene, saying:

As the director sitting on top of an organization of 30,000 people you can’t run an investigation that’s seven layers below you. You have to leave it to the career professionals to do.

Not everyone is buying this explanation. This week Martha MacCallum of Fox News asked Attorney General William Barr if he believes the Comey tale. Said Mr. Barr:

No, I think that one of the problems with what happened was precisely that they pulled the investigation up to the executive floors, and it was run and bird-dogged by a very small group of very high-level officials. And the idea that this was seven layers below him is simply not true.

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