Larry Tribe’s proposal to make censure or a “Sense of the House” resolution a substitute (if necessary) for impeachment is a bad idea. It would just amount to shadow-boxing.

Laurence H. Tribe: “Impeach Trump. But don’t necessarily try him in the Senate.

While the motives behind this proposal are admirable, the proposal itself is a bad idea. It would also prove to be unworkable. 1/23

As Tribe points out, what the Constitution contemplates is for the House to serve as a prosecutor and grand jury. After the House impeaches, it sends an impeachment referral (in effect, the House’s indictment) to the Senate. 2/23

When the Senate receives the referral, the Senate conducts a trial, and the proceedings there have the structure of a real trial. 3/23

The House sends some of its members to the Senate to serve as prosecutors. In the Senate, the president and his supporters can mount a defense against the prosecution, very much as defense attorneys do in a civil or criminal trial in the courts. 4/23

Indeed, the president and his supporters have no choice here. They are COMPELLED to defend the president — and this is vitally important — 5/23

because an impeachment referral from the House COMPELS the Senate (at least according to its present rules) to conduct a trial, and because the Senate has the power TO REMOVE THE PRESIDENT FROM OFFICE. 6/23

It is quite otherwise with Tribe’s proposal. Nothing will compel House Rs to play along with it. Predictably, they will not play along with it, and they will have good grounds for refusing to do so. 7/23

They will point out that Tribe’s scheme involves having the House serve as prosecutor, grand jury, and petit (trial) jury, all in one. 8/23

And they will point out that the proceedings in the House do not constitute a real trial, because it cannot lead to conviction (removal of the president from office). 9/23

Rs will point out (correctly) that none of this is what the Constitution contemplates.10/23

As a result, Rs will almost surely be successful in making the proceedings in the House under Tribe’s scheme look like a travesty or Moscow show trial. 11/23

Because the House cannot remove the president from office (only the Senate can), there could be no meaningful conviction. That would make the the censure Tribe recommends look even more like a travesty, not less. 12/23

It is no solution to this problem to have Nadler say, when he opens formal impeachment hearings, that the proceedings may or may not lead to an actual indictment (impeachment referral) to the Senate. 13/23

That is not what the impeachment rules and guidelines for the House provide. If formal impeachment hearings are opened, they must lead to either an impeachment referral by the committee (which then goes to the floor of the House) or not. 14/23

Is Tribe proposing that the HJC itself should censure the president if it doesn’t send an impeachment referral to the full House? Or does the full House do it? And as a practical matter, how would an impeachment trial be set up in the House? 15/23

Regardless of what happens under this scheme, Trump and his minions will be able to claim victory, on the grounds that in fact the House has pulled its punches and fallen short of an ACTUAL indictment. 16/23

Under the Constitution, the impeachment powers of the House are intended to lead (possibly) to an actual INDICTMENT, not censure, because a censure cannot lead to the Senate’s removing the president from office. 17/23

And the whole procedure would appear pointless anyway, since any American voter who isn’t comatose knows already that Ds believe that Trump deserves to be impeached and that they would like to remove him from office. 18/23

Voters don’t need Tribe-like proceedings (even assuming they could be arranged) to realize that, nor will future generations or future historians. 19/23

Tribe’s proposal is also unwise because it would inevitably cause all other work in the House to shut down. Pelosi and most of the other House leaders want to show that the D majority in the House can pass legislation that voters want and care about. 20/23

(Polls show that this is what voters want, and House Ds have already passed popular legislation.)

For all these reasons, this proposal is a bad idea. 21/23

At this point, aggressive oversight hearings can accomplish all the educative purposes that formal impeachment proceedings could achieve, without any of the catastrophic downside risks. 22/23

And giving committee chairs the power to go to court with civil suits to enforce congressional subpoenas without first having to get floor votes for this is a much better idea for getting things moving along. 23/23