Thread by @marty_lederman

1/ Respectfully disagree with @CassSunstein on this. The whole case for denying the House prosecutorial discretion rests on the assertion that "deliberations during the founding period" supposedly "strongly suggest that if the grounds for impeachment are clearly established, ...

https://twitter.com/jonfavs/status/1148954851872632832

2/ ... the House is not allowed to look the other way." But the evidence--even for such a "suggestion"--just isn't there. And I know of no reasons why the House, any less than other prosecutors, should be precluded from taking into account pragmatic considerations, ...

3/ ... such as whether there's a negligible chance of conviction; whether removing the POTUS from office would be in the best interests of the nation; whether an unsuccessful prosecution will likely exacerbate problems and perhaps embolden the POTUS; how much longer the term is;

4/ ... whether the people will soon have a chance to render their own verdict; whether the President has acknowledged wrongdoing and corrected the errors of his ways; -- and countless other factors. Indeed, what's the possible reason why our framers, or any others, ..

5/ ... would *want* the prosecuting entity to be denied the power to consider and weigh such case-specific equities, such as prosecutors the world over regularly do?

I'm with Tribe & Matz on this one.

@tribelaw @JoshuaMatz8

6/ Probably worth also mentioning, btw, two other things: (i) that if the framers truly had wanted to strip the House of discretion, they undoubtedly would have written the text differently ("The House . . . shall have the sole *Power* of Impeachment."); ...

7/ and (ii) by @CassSunstein's logic, the House would also have no choice but to impeach whenever *any* officers--executive officers, judges, and members of Congress alike--commit a high crime or misdemeanor. Surely that can't be so.