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Here’s One Weird Way to Avoid an Impeachment Disaster

We can call this strategy “conditional impeachment.” Here’s how it would work: The House adopts its articles of impeachment, as it is planning to do. But it also adopts a separate resolution saying that the House will deliver the impeachment articles to the Senate only if the Senate fails to censure the president for his Ukraine-related misconduct by a specified date. If the Senate does censure Trump, the House could refrain from delivering the articles of impeachment to the Senate at all.

This scheme might seem ambitious. But, as the House prepares for its floor vote on Wednesday, the plans relating to the handoff of impeachment to the Senate seem to be fluid, and there is growing sentiment that Speaker Nancy Pelosi should avoid sending articles to a quick Senate demise.

This concept of “conditional impeachment” is predicated on historical precedents in both the Andrew Johnson and Bill Clinton impeachments. With those presidents, the Senate did not take up impeachment until the House impeachment managers physically delivered the articles of impeachment to the Senate in a formal presentation ceremony. In Johnson’s case, on March 4, 1868, the House managers “appeared at the bar” of the Senate and proclaimed to be “ready” to present their articles, as observed in the Congressional Globe (the predecessor of the modern Congressional Record). Likewise, in Clinton’s case, on January 7, 1999, the House managers “appeared below the bar of the Senate” and proclaimed to be “ready” to present their articles, as recorded in the Congressional Record. In each case, the Senate trial did not begin until some days after this formal presentation. This practice conforms with the Senate’s impeachment rules, which explicitly direct that “the managers of an impeachment shall be introduced at the bar of the Senate and shall signify that they are ready to present articles of impeachment,” and only “following such presentation” shall the Senate “proceed to the consideration of such articles.”

The idea of “conditional impeachment” is not in the Constitution, but the Constitution clearly allows it. There is no constitutional obligation for the House to deliver articles of impeachment to the Senate for a trial—only that if there is to be an impeachment trial, then the authority to conduct that trial is exclusively lodged in the Senate. If the House wants to adopt its articles of impeachment but never send them to the Senate for trial, that is within the House’s “sole power of impeachment,” as granted in the Constitution (Article I, Section 2). That “sole power” also means the House has the authority to predicate its withholding of the articles of impeachment on a specific condition.

If the House opted for “conditional impeachment,” and the Senate did adopt a satisfactory censure resolution, then the articles of impeachment would never be delivered to the Senate, and there would be no Senate trial and no verdict of acquittal or conviction. Conversely, if the Senate failed to adopt a censure resolution according to the terms specified by the House, then its articles of impeachment would be delivered to the Senate, triggering the necessary Senate impeachment-relating proceedings, which would result in either a conviction or acquittal.

While it might seem unlikely at this late date that the House would adopt this novel procedural idea, several moderate Democrats in the House have contemplated censure in that body as an alternative to impeachment, suggesting there is some interest in avoiding a Senate trial. Also, over the weekend, John Dean, the Nixon administration lawyer famous for his Watergate testimony, tweeted the suggestion that the House should impeach Trump but not send the articles to the Senate; Dean’s suggestion seems to be picking up steam, at least on Twitter, and adding the censure component improves on this option.

It’s not totally out of the realm of possibility that the Senate would go along with a censure resolution as a way of avoiding a trial—which many senators seem to want, fearing it might turn into a political circus or get in the way of legislation. And unlike conviction upon articles of impeachment, which requires a two-thirds vote, a censure resolution would require only a conventional majority. It seems plausible that the 47 Democrats in the Senate (counting the two independents who caucus with them) could pick up four Republicans in support of censure.

What’s more, the idea of impeachment and censure, without acquittal, still has to begin with a vote to impeach the president, which should make this approach palatable to those House members, or their constituents, who insist on impeaching the president. The history books will still describe Trump as joining Johnson and Clinton’s small, infamous circle. For all those House Democrats who currently view censure in the House as a weak alternative to impeachment, it is crucial to understand that, in the situation I’m proposing, censure would not be an alternative to impeachment; it would be induced by the impeachment vote itself.

As Democrats repeatedly assert, the goal of a Ukraine-related impeachment is to protect the 2020 race from the kind of election interference that Trump appears to have attempted. The worst outcome of the impeachment process would be to put the 2020 election in greater danger. But that is exactly what a Senate acquittal would do. It would be a green light for additional electoral interference of exactly the kind Democrats condemn—or worse. A Senate censure induced by this “conditional impeachment” approach avoids that otherwise inevitable calamity.

But it does more, too. Not since 1834, when the Senate censured Andrew Jackson, has Congress formally and explicitly censured a president. In this case, a Senate censure of Trump would be a solemn proclamation that the president’s attempt to induce a foreign government to interfere in the upcoming presidential election, in order to give the incumbent an improper advantage, was a contemptible abuse of his office and the public trust. That would put the president on notice that both the Senate and the House find this kind of conduct constitutionally intolerable—a message far preferable to acquittal on impeachment charges. Moreover, by requiring significant Republican support, a censure would send a bipartisan message about the importance of complying with basic norms of electoral fairness.

While “censure” might seem like just a fancy term for condemnation or rebuke—a slap on the wrist rather than a real penalty—the Senate has a longstanding practice of using censure as a form of discipline for its own members, in cases that do not warrant expulsion from the body. Censure in Trump’s case would represent the Senate’s calibrated judgment, in accordance with its own precedents, that Trump engaged in significant wrongdoing—no “perfect” phone call—but not so severe as to justify the political “death penalty” of removal from office.

There is really nothing to lose from pursuing this “conditional impeachment” approach. Sure, if the Senate does adopt the censure resolution, it takes removal of the president off the table. But Trump is not going to be removed, anyway. There is a chance that the Senate will reject the House’s invitation to adopt a censure resolution in lieu of holding an impeachment trial. If so, however, the House is no worse off than if it hadn’t adopted the “conditional impeachment” approach. The Senate trial then occurs just as if the House had proceeded with a conventional impeachment.

The way that impeachment is proceeding now, it is a purely symbolic affair—because there is no practical chance that it will remove Trump from office. But as far as symbolism goes, it would be much better if the process that starts with House impeachment ends with Senate censure rather than Senate acquittal. If by using the procedural mechanism of “conditional impeachment,” the House can do that, it will have accomplished something surprising—and meaningful.