Why Democrats Should Drop the Senate Impeachment Trial and Play to the Real Jury—American Voters | Opinion

House Speaker Nancy Pelosi made a very strategic move when she decided that the House of Representatives would not immediately transmit the articles of impeachment to the Senate. This should certainly shine a light on why the Senate process, now that President Donald Trump has been impeached, cannot blithely become a show trial geared toward projecting the notion that the president was the victim of a partisan hit job by the other chamber.

No matter how strategically smart Pelosi's move is, if there is a Senate trial, we know the endgame: The Senate will not convict Trump, and he will claim total absolution after the vote—probably launching an extensive victory tour.

Beyond the presidential campaign, who wins control of the Senate in 2020 is almost as important. There was some hope that the House Intelligence and House Judiciary Committee public hearings might move a substantial enough number of independent voters that the outcome of a Senate trial might be different. For instance, if the House proceedings had swung independent voters meaningfully—especially in Maine, Arizona, North Carolina, Colorado, Iowa and Georgia, with seven Senate seats among them up for re-election—Republican incumbents might have found it necessary to vote for at least one article of impeachment or maybe find in favor of a censure resolution to be at least somewhat in step with the popular sentiment in those states. Trump's approval ratings are underwater in most of them.

That would have meant two things. First, a majority of the Senate (even if not the requisite two-thirds) would have found Trump guilty, which would have created an aura of bipartisanship around the entire effort and beat back Trump's claims that this was merely a Democratic "witch hunt." Second, those swing-state Republican senators who voted in favor of conviction would likely have drawn primary opposition from hardcore pro-Trump challengers, making for much weaker Senate candidates in those states' general elections.

Unfortunately, that's not the way things have played out so far. There is very little difference in the views of the American public before and after the House proceedings, with the exception of a few polls suggesting a slight increase in independent voter views that the president should be impeached and removed.

So what does this mean? Well, Senator Chuck Schumer's request that Chief of Staff Mick Mulvaney and former national security adviser John Bolton, among others, be questioned as witnesses under oath at the trial is the right path to go down to give the Senate trial some appearance of legitimacy. That said, whether such witnesses are called at the trial or not, the same result will ensue: The Senate will declare that the president is totally innocent. So while Pelosi may get some concession out of Senate Majority Leader Mitch McConnell as to how the trial is managed, it won't change the outcome.

If, by some chance in the next two months, some new information emerges that makes it possible to sway swing-state Senate incumbents up for re-election to vote against Trump, thus bringing on primary challengers, then Pelosi should indeed send the articles over to the Senate. However, that would have to happen before the Republican Senate primary filing deadlines, most of which are prior to mid-March. Given the status of the court cases on congressional witness subpoenas, it is unlikely new witnesses will be forced to testify before then, something it appears McConnell will also continue to resist, and holding a Senate trial without such testimony gains absolutely nothing for the Democrats and everything for Trump.

Any trial after those filing deadlines would mean the incumbent senators can vote without worrying about a primary challenge. Moreover, one can be sure McConnell would devise a string of procedural votes to allow the swing-state incumbents to vote with the Democrats on something other than the impeachment articles themselves, so those senators could point to their "independence" and "objectivity" to position themselves as not being slavish followers of Trump White House directives, better equipping them to withstand a general election campaign.

Therefore, holding an impeachment trial after the Republican primary filing deadlines, letting McConnell to give his most vulnerable members an opportunity to position themselves as independent-minded without fear of a primary challenge, is clearly not in Democrats' interest. Holding the Senate trial at that point in time would not only allow Trump to claim full vindication but would strengthen Republican prospects for holding the Senate by giving the most vulnerable Republicans an easy way to demonstrate some distance between them and Trump.

Whether we have a trial ending in an acquittal, or no trial and no acquittal, what all this means is that the jurors are really going to be the American public, and that the verdict will be rendered in November. Which is just what the Republicans have been arguing should happen—that impeachment and removal would deprive the voters of their right to decide. So how can the Democrats turn that argument against them?

Here is how. There are two things that it would be extremely difficult for Republicans to say they are opposed to now. First, if the Democrats concede that "OK, you're not going to remove the guy from office because you think it's too close to the November election, and that should be a decision of the American public," then the Democrats should further argue, "All right, we understand that the voters are going to decide this issue, so let's give the American public all the information they need to be fully informed to make that decision."

In other words, you can't argue that this decision should be up to the American public and at the same time argue that the public doesn't deserve access to the information it needs to make an informed determination. Republican Senators may think the whole impeachment process is illegitimate, but they can't claim it's illegitimate for American voters to hear from all the relevant parties and see all the relevant documents to make a fair and balanced decision. "We won't send the impeachment articles over to the Senate. Instead, how will you join us in letting the American public truly have a basis for deciding what happened here?" Democrats could say.

The result: Impeachment stands. There is no trial acquitting Trump. Trump cannot claim Senate vindication. The Republicans are left arguing that they want to withhold from the public what it needs to make an informed decision.

Nancy Pelosi
Speaker of the House Nancy Pelosi looks on during a press conference after the House of Representatives voted to impeach President Donald Trump at the U.S. Capitol on December 18, 2019, in Washington, D.C. Drew Angerer/Getty

At the same time, the Democratic argument for why everything that happened relative to Ukraine was so egregious that it warranted impeachment was that Trump's phone call to the president of Ukraine occurred the day after special counsel Robert Mueller testified before Congress. It was clear that, despite all the evidence that Mueller documented in his report about Russian interference with the 2016 election, the president continued to push for foreign interference in the 2020 election.

As a number of commentators have now pointed out, the state-by-state vote in 2020 could be so close that it could come down to which way Wisconsin goes (if the president holds Wisconsin, even if Michigan and Pennsylvania flip to the Democrats and all other states voted as they did last time, Trump would win by one electoral vote). With the potential for such a razor-thin outcome, new forms of Russian foreign interference in our election, especially if it is focused on some relatively small number of swing counties in Wisconsin with little ability to protect themselves from Russian military intelligence attack, could totally commandeer the 2020 election results in Trump's favor.

Against this backdrop, the second challenge that Pelosi should lay out is we will not send over the articles of impeachment at all and "spare" the country a Senate trial charade, but more than ever both houses must make sure that the most vulnerable states are fully protected in as many ways as possible from Russian interference. As Pelosi has said, "All roads lead back to Russia," and it is far too scary to not create—with so little time left—a robust defense against Russian cyber-attack, for which the intelligence community has already stated the Russians are laying the groundwork. Thus, Pelosi should say to the Republican Senate, "Stand with us to make sure the people you say you want to be the real jurors here—the American voting public—are in fact the real jurors, and their verdict is not hijacked by Russian interference."

This would hopefully turn the independent voter's attention to the fact that the Republicans, even outside an impeachment process, won't support giving voters all the key information about Ukraine and Russia, and won't support an effort to build a strong cyber defense to make sure that the American public voting jury is not tampered with by Russian tactics. This just may help move independent voters away from skepticism about impeachment toward a clear realization that Republicans really have no interest in voters getting all the facts and the ability to do so as part of a voting process that is fully safeguarded.

My advice would be to drop the focus on the trial—don't give Trump the satisfaction of a Senate acquittal. At the end of the day, how the Senate trial is conducted is not going to change independent voters' minds. Instead, put the focus on a trial where the American public is the jury, and how the Republican Party is hell-bent on ignoring impeachment not because, as they say, it would overturn the last election, but because their real goal is to keep the American public from having a fair and informed election free of foreign interference in 2020. I rest my case.

Tom Rogers is a senior contributing columnist for Newsweek and a CNBC contributor, the founder of CNBC, established MSNBC, and former senior counsel to a congressional committee. He was the first president of NBC Cable, the former CEO of TiVo and is currently executive chairman of WinView.

The views expressed in this article are the writer's own.