In the House Judiciary Committee, I had some fundamental disagreements with my friend Professor Noah Feldman on issues ranging from the basis for impeachment on the basis of specific crimes (bribery, extortion, campaign finance violations, and obstruction of justice) as well as his claim that the legal definition of these crimes are immaterial to their use in impeachment. Ultimately, the Judiciary Committee dropped those four theories and went forward with the two articles that I testified would be legitimate, if proven: abuse of power and obstruction of Congress.
Now, however, we have another disagreement. Feldman has written in Bloomberg News that Trump is not actually impeached until the articles of impeachment are transferred to the Senate. I disagree and believe that Feldman is conflating provisions concerning removal with those for impeachment. Frankly, I am mystified by the claim since I see no credible basis for maintaining this view under either the text or the history of the Constitution.
Five provisions are material to impeachment cases, and therefore structure our analysis:
Article I, Section 2: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. U.S. Const. art. I, cl. 8.
Article I, Section 3: 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. U.S. Const. art. I, 3, cl. 6.
Article I, Section 3: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to the Law. U.S. Const. art. I, 3, cl. 7.
Article II, Section 2: [The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. U.S. Const., art. II, 2, cl. 1.
Article II, Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. U.S. Const. art. II, 4.
Under these provisions, President Donald J. Trump was impeached on December 18th at 8:09 p.m. Article I Section 2 says that the House “shall have the sole power of impeachment.” It says nothing about a requirement of referral to complete that act. Impeachment occurs when a majority of the House approves an article of impeachment.
Section 3 gives the “sole power to try all impeachments” to the Senate. For such a trial to occur, the Senate is officially informed of the articles of impeachment by the House. One can argue that without such a referral, the Senate would not take up the impeachment. Indeed, as I stated in my testimony, English precedent includes the power of the House of Lords not to take up impeachments. The majority of impeachments were not taken up by the House of Lords because they were viewed as raw political exercises. That is not our tradition.
A common analogy is often drawn to federal indictments by a grand jury. Though this analogy can be overstated, on this point, there is a telling distinction between the indictment and trial stages. If the grand jury decides the evidence presented establishes probable cause, it issues an indictment . As with the House in an impeachment, a majority of the grand jury (16 of 23 members) must vote for indictment, which is then called a true bill. The submission to a federal court in an arraignment is to allow a defendant to plead guilt or innocence. If an indictment is not submitted, there can be no trial or conviction. Moreover, there is a time limit as there is in an impeachment with statutes of limitations and other limits on the life of an indictment. If a House does not submit articles of impeachment to the Senate, those articles will die with that Congress. Like indictments, the limit is on the ability to prosecute or try the articles of impeachment.
Where Noah and I agree is that this use of the articles as a bargaining chip is a departure from tradition and undermines the integrity of the process. It also contradicts the Democratic narrative that the House could not wait because this is a “crime in progress.” I argued that a little more time could greatly enhance this record. Now, having adopted articles of impeachment on a facially incomplete and insufficient record, the House suddenly has ample time to toy with the Senate on the transferral of the articles for trial.
Yet, on the issue of impeachment, that was established with the adoption of Article 1 on the abuse of power. President Trump stands impeached as clearly defined under Article 1 of the Constitution.
Imagine a Star Trek episode from the original series (TOS) and the star ship enterprise came upon an advanced yet barbaric humanoid civilization in a distant galaxy that had modeled their constitution based on the US constitution. However these humanoids had made some changes to the verbiage of the constitution so it would match their culture. They had a house and a senate just like we do and the same procedural rules but their constitution said “the house has the sole power to hang anyone that is likely to have committed spying”. Let’s say that they had captured James T Kirk and determined he was a spy so they drafted articles of hanging and the house voted in favor of hanging James T Kirk but then after the vote they received a sub space communication from the Federation and were temporarily holding off on sending the articles of hanging to the official house appointed hangman. In this episode, is James T Kirk already “hung” because of the house vote or is there still time for Spock and the enterprise crew to save him?
What if the constitution had given the House the “sole power” to hang anyone who commits treason and the house voted to hang someone but the speaker decided to hold off on telling the hangman to proceed. Is the person still already “hanged” because of the vote?
Blues: That’s a good one. It shows how inane this whole subject is. But the answer to your question is that the individual would have been convicted of treason but the penalty (hanging) suspended for a while – or forever.
Thank you for your reply.
In my example, the constitution didn’t theoretically say “convict and hang”. It only said “hang”. In the theoretical example, I was taking out the word “impeach” and changing it to “hang”.
In terms of the meaning of the word “impeach”, we must consider the context. There is a paragraph in the constitution that contains the word impeachment but the paragraph itself is about removal. It says that removal requires “impeachment” “and” “a trial”. There will probably never be a court ruling that answers the bigger question we are discussing because it is legally irrelevant. However, it would be absurd to say that the framers intended for impeachment to besmirch, or anything other than part of the removal process. While the framers didn’t come out and clarify at what moment the president is technically “impeached”, it is clear that from a constitutional perspective, impeachment only exists as part of the removal process. Under that process, the house impeaches and the senate conducts the trial. The constitution says the senate has the “power” to try “all impeachments”. As it stands right now they do not have that power.
What if the constitution had given the House the “sole power” to hang anyone who commits treason
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Then there would not be a hangman. The House would have to do the job themselves
OK. For the sake of being agreeable let’s say congress had to hang the offender themselves. If they voted to hang but held off on the hanging, then is the offender hung?
Your point actually bolsters the argument that the president is not yet “impeached”. Under the “removal” process outlined in the constitution, Congress must complete their part of the process before the commencement of the next phase. If Pelosi complained today that the senate was hindering the process, then the majority leader in the senate could correctly tell her “you complete your business and let us worry about ours”.
In my last entry I said “congress” when I meant to say “house”.
Here is a question, if the constitution says that the Senate “has the power to try all impeachments”, then why is it that they don’t have power to try the articles voted on by the house? It seems like “all impeachments” is pretty inclusive of all existing impeachments.