Harvard Law School professor Noah Feldman, who testified as a Democrat witness in the House Judiciary Committee’s public hearings on impeachment, argues President Donald Trump is technically not impeached until the House submits the articles to the Senate.
In a Bloomberg News opinion-editorial published Thursday, Feldman writes the definition of impeachment, according to the framers, “assumed that impeachment was a process, not just a House vote,” and impeachment is official only when the articles are transmitted to the Senate, where lawmakers are “obliged by the Constitution to hold a trial.”
Feldman writes:
If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.
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.
As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.
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If the House votes to “impeach” but doesn’t send the articles to the Senate or send impeachment managers there to carry its message, it hasn’t directly violated the text of the Constitution. But the House would be acting against the implicit logic of the Constitution’s description of impeachment. A president who has been genuinely impeached must constitutionally have the opportunity to defend himself before the Senate.
The debate over whether President Trump is formally impeached comes as House Speaker Nancy Pelosi (D-CA) remains noncommittal about sending the articles to the Senate, citing recent Democrat concerns a trial held by the upper chamber will not be “fair” and that senators won’t be “impartial” jurors.
“We’ll make that decision as a group, as we always have, as we go along,” Pelosi told reporters when asked about a timetable for sending the articles. “So far we haven’t seen anything that looks fair to us.”
In a Thursday floor speech, Senate Majority Leader Mitch McConnell (R-KY) denounced Wednesday evening’s partisan impeachment vote and slammed the speaker for being “too afraid” to send “their shoddy work product to the Senate.”
“The framers built the Senate to provide stability,” McConnell said. “To keep partisan passions from boiling over. Moments like this are why the United States Senate exists.”
President Trump also ripped Pelosi for holding up the articles, tweeting Thursday: “If the Do Nothing Democrats decide, in their great wisdom, not to show up, they would lose by Default!”