There were two apparent possibilities as the House Democrats decided to pursue Articles of Impeachment. Either they would muster sufficient evidence to convince enough of the American public to support impeachment that Republican senators would feel confident enough that they could find Trump guilty and vote to remove him and be re-elected, or the evidence would sufficiently damage Trump to impair his re-election.

It appears that neither has come to pass, if polls are any indication. Whether the evidence just didn’t do the trick, or people are so stuck in their positions, or they just don’t care anymore as they’re exhausted by the three years of ceaseless outrage, the numbers haven’t really moved.

It’s not that voting for Articles of Impeachment isn’t the right thing to do for no better reason than Trump’s conduct warrants impeachment and it’s an act of principle, even if in vain. But the calculus has now shifted: what happens after the articles are voted? Senate Majority Leader Mitch McConnell has announced that it’s dead in the Senate, and has rejected Minority Leader Chuck Schumer’s attempt to have John Bolton and Mick Mulvaney called as witnesses.

While impeachment is a constitutional process, the Constitution left out the many details of process that are part of ordinary legal proceedings. As McConnell, in his peculiar wisdom, has announced his bias despite the oath he will be required to take before sitting in judgment of impeachment, the next step, a trial in the Senate, will be a sham proceeding. This isn’t to say that Trump should or shouldn’t be found guilty (he should), but that there is no purpose to a proceeding where the outcome is predetermined. It’s a sham.

Harvard prawf Larry Tribe uses his once-renowned scholarly cred to offer procedural workarounds for the House Dems to beat McConnell at his own game. He contends that the House can vote Articles of Impeachment, but “withhold” them from the Senate.

Some have asked what would give the House power to take the step of impeaching the president but withhold pressing its articles of impeachment in the Senate. This question assumes that everything the House opts not to do, every option it chooses not to exercise, requires that it locate affirmative power for its inaction in some textual snippet in the Constitution.

I’d turn the question around: Where in the Constitution or in the history or theory of its interpretation is that principle located? In fact, it is entirely made up, found nowhere in our constitutional constellation. And it is out of place when considering how the House and Senate are to interact in cases of impeachment, particularly cases in which a president is being impeached for defying his oath and the Senate is threatening to defy its oath as well.

Tribe can turn the question on its head, for all it matters. The Constitution is silent on process, whether the articles must be filed somewhere or delivered to the Senate on a silver platter. As far as McConnell is concerned, once voted, he can commence a Senate trial. There’s nothing Speaker Nancy Pelosi can do to stop him.*

Consider the case of a prosecutor armed with a grand jury indictment who learns that the fix is in and that the jury poised to consider the case is about to violate its oath to do impartial justice. In that situation, the prosecutor is under no affirmative legal obligation to go forward until the problem is cured and a fair trial possible. So, too, the House, whose historical role is to prosecute articles of impeachment in the Senate after exercising its “sole” power to impeach, is under no affirmative constitutional obligation to do so instantly.

Tribe resorts to a particularly bad example, both because it’s a facially imperfect analogy and it’s just plain wrong. There’s the Speedy Trial Act. There’s the Sixth Amendment’s constitutional speedy trial. If the prosecutor pockets the indictment, it gets dismissed. He’s under no affirmative duty to go forward, but if he fails to do so, it’s doomed.

Then there’s Tribe’s “Potemkin Trial” argument, evoking the fake villages built to fool Catherine the Great. It’s a two-step argument, the first being that the public has a right to observe a trial, and the second that the trial to be observed must be a “meaningful” trial.

This common sense — that the public has a right to observe a meaningful trial rather than simply learn that the result is a verdict of not guilty — has constitutional dimensions. In 1980, then-Chief Justice Warren E. Burger, a Richard Nixon appointee, wrote that the media and the public have a constitutional right to attend and observe a criminal trial — despite the opposition of the accused, the defense team and even the prosecutor and the trial judge.

The precedent relied upon, however, isn’t impeachment, but regular court. Just as impeachment doesn’t require a statutory “crime,” it’s not a regular trial in a regular court with all its specified processes. The limit on the Senate putting on a Soviet-style show trial is the American public rejecting it and taking senators to task for failing to perform their duty. The limit on that is the alternative available. As bad as the functioning of the government is now, it can always get worse.

Is it possible that Tribe has a point? It is, but then, it’s not an argument to be made by a law prof, or even by politicians on CNN. If there is a question as to what process the Constitution requires, there is a third, co-equal branch of government with its own building to decide so. When Trump called upon the Supreme Court to sua sponte stop this “coup,” Justice Ruth Bader Ginsburg noted that unless someone brought the case before the Court, there was no role for it. As RBG astutely noted, “The president is not a lawyer,” so he wouldn’t grasp why law didn’t work the way he wanted it to.

But Larry Tribe is a lawyer. He’s a Harvard Constitutional Law professor, but still he should know something about law. He’s got no excuse.

*In a follow-up column in WaPo, Jennifer Rubin assumes this must be doable, because of course it is.

Speaker Nancy Pelosi (D-Calif.) could, after the House vote on the articles, decline to send over the articles until such rules for a real trial can be agreed upon. Give McConnell, say, 30 days to get this right. While the House makes clear that impeachment is urgent, there is no remedy for a clear and present danger in a farcical non-trial. Pelosi’s time frame could raise pressure on McConnell, further unhinge Trump and give Democrats a chance to get out there, as they have failed so far to do, with a full-blown ad campaign to convince voters of what is at stake.

Pelosi could. McConnell could. In the absence of any required process, there are as many “coulds” as one desires. Absent the Supreme Court holding otherwise, it’s all just noise.