A major reason some Democrats are unwilling to impeach President Donald Trump is the knowledge that the Republican-controlled Senate would try the impeachment. Senate Majority Leader Mitch McConnell (R-KY) would never allow a conviction to happen, and in fact, he might not even hold a full trial at all.
But as law professor Laurence Tribe explained to MSNBC's Joy Reid on Saturday, that doesn't mean that an impeachment would be pointless — indeed, he argued, there are ways that the House could end-run the Senate to, if not remove Trump, then at least litigate his criminality in their own chamber.
"Explain how the House might be able to act if the Senate refused to take up and start an impeachment trial, or would otherwise simply build in an acquittal," Reid asked him.
"What the House could do, Joy, is fairly straightforward and they have done it before. They could have factual conclusions," said Tribe. "The way the Judiciary Committee did when it concluded Nixon completed offenses. It wasn't just like an indictment. An indictment is basically an accusation referring to someone else for trial. But the House of Representatives is quite capable of reaching a verdict. That is what I proposed it should do."
"Now in the process of the hearings the House might educate the public and finally Mitch McConnell might give in and the whole thing might go in a direction that Nancy Pelosi, I think quite rightly, says is not very likely," said Tribe. "But who's afraid of the big bad turtle here? We don't have to worry about what McConnell is going to do, the Senate will do."
As an example, Tribe cited congressional actions that were debated in the founding era.
"In the case of John Adams, for example, in 1800, there was a big controversy over the fact that he extradited an American citizen to Britain, for having engaged in mutiny on a British warship," said Tribe. "There was a lot of debate in the House. They weren't ready to impeach him, maybe in part because they didn't think the Senate would convict, but they were ready to debate whether or not the House could condemn him, could find that he violated the rights of an American citizen. There was a big debate over whether the House has the power to condemn or censure and reach its own verdict, and in that debate the winning side was, yes, the House has this authority. Now in that case by a vote of 64-30 or something, they decided that Adams did not deserve to be censured or condemned."
"My sense is that after a full hearing where the president and his lawyers would be invited to make a presentation, of course they would say no thanks, but they would have a full opportunity," said Tribe. "And it would be a kind of trial, not exactly a trial, it is only the Senate that has the power to try impeachments. But you don't have to be afraid of what the Senate would do. If the Senate is in the president's hip pocket, then you can simply stiff the Senate and say we find that the president created high crimes and misdemeanors, but we're not going to do you the favor of tossing you what looks like an indictment so you can shred it in the McConnell shredder."
"The House, after all, is an independent body," Tribe added later on in the segment. "It is the people's House, and they should stand up to their duty under the Constitution."