House Democrats are flirting with not sending the articles of impeachment over to the Senate, which they say isn’t preparing to hold a fair trial. Given this, some have set about arguing that this means Trump hasn’t been impeached. Trump’s lawyers are apparently looking at making that argument. Trump’s defenders really want to believe it. And they got a much-needed rhetorical boost Thursday when Harvard University professor Noah Feldman — one of the Democratic witnesses in the House impeachment proceedings — endorsed the idea.
It seems too clever by half. And another constitutional scholar makes a compelling argument as to why.
Here’s the crux of Feldman’s piece:
That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached....The provisions say nothing about timing. Taken literally, they don’t directly say that articles of impeachment passed by the House must be sent to the Senate. But the framers’ definition of impeachment assumed that impeachment was a process, not just a House vote.The framers drafted the constitutional provisions against the backdrop of impeachment as it had been practiced in England, where the House of Commons impeached and the House of Lords tried the impeachments. The whole point of impeachment by the Commons was for the charges of impeachment to be brought against the accused in the House of Lords.Strictly speaking, “impeachment” occurred – and occurs -- when the articles of impeachment are presented to the Senate for trial. And at that point, the Senate is obliged by the Constitution to hold a trial.
It makes some sense. But Georgetown University’s Marty Lederman makes an even more compelling case, to my (non-lawyer) mind.
First, House Resolution 755 says, upon its adoption, “That Donald John Trump, President of the United States, is impeached for high crimes and misdemeanors.” It also resolves that “the following articles of impeachment be exhibited to the United States Senate.”
The House didn’t technically vote on the resolution by itself, but the rules for the impeachment as passed by the House declared that “the adoption of the resolution , as amended, shall be divided between the two articles.” Thus, by approving the two articles, they effectively adopted House Resolution 755. And that resolution says that Trump “is impeached,” not that he will be impeached after the second part of the resolution — the transmission to the Senate — is acted upon.
Lederman also pointed out that the House’s existing impeachment rules indicate such a vote is sufficient for a president to be impeached. Chapter 27, Section 8 says, “The respondent in an impeachment proceeding is impeached by the adoption of the House of articles of impeachment.” So according to the House’s own rules, it has impeached Trump. The rules say nothing about the transmission being necessary before impeachment takes effect.
Is that all that matters? Well, the Constitution says the House “shall have the sole Power of Impeachment.” If the House says in both its existing impeachment rules and the rules adopted for this particular impeachment that the vote by itself means Trump has been impeached, it would seem to have the power to make that determination.
There would have to be something in the Constitution that would contradict that. But the Constitution, as Feldman notes, doesn’t prescribe much of a process for impeachment. Beyond that the House has the power to impeach, it says:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present.
And that’s about it. Not a word about how the House must transmit anything to the Senate. Indeed, you could argue — and some have — that the articles don’t need to be sent over and that the Senate could begin a trial without receiving them.
Assuming they must be, though, there are obvious problems with not transmitting the articles. Trump would be deprived of a chance to defend himself in a formal trial. Future Houses could potentially impeach a president solely for the purpose of labeling them “impeached” and then just leave it at that. It would be like someone being indicted but never being allowed a trial to clear their name.
But that’s also kind of the point. A criminal trial is what generally follows an indictment, but if it doesn’t happen, does that mean the person wasn’t indicted? No, it just means that the indictment didn’t lead to its presumptive next step.
All of that said, all Trump really wants here — as ever — is plausible deniability. If he can convince himself and his supporters that he hasn’t been impeached, they at least have something to base that on. The problem is it’s not the actual rules or anything directly stated in the Constitution.
Update: The White House is now promoting Feldman’s op-ed. But in the meantime, the GOP’s own witness at the same hearing at which Feldman appeared, Jonathan Turley, has come out against the idea. He says Trump has, in fact, been impeached.
And he uses the indictment parallel as well.
“With that [grand jury] vote, a defendant is indicted and the indictment is called a ‘true bill,' ” Turley writes. “Prosecutors can seal that indictment in some cases to secure the arrest of individuals. However, for prosecution, they must submit the indictment to a court. It is at the arraignment that a defendant may plead guilty or innocent (or remain silent and have the court enter a not guilty status). However, the defendant was indicted by the grand jury not by the submission to the court.”