Academia, Congress, Constitutional Law

Trump Stands Impeached: A Response To Noah Feldman

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.

262 thoughts on “Trump Stands Impeached: A Response To Noah Feldman”

  1. What I am curious about is what if — as several House members are advocating for and Nancy Pelosi has threatened — the House refrains from delivering articles of impeachment to the Senate for a substantial and/or “unreasonable” period of time. What would be the legal effect, if any?

    2. Nah, the people who hate our country and our Constitution are all on the left.

      The left wants to take away our right to free speech, they want to take away our right to guns, they want to destroy our federal structure by ending the electoral college, etc…and, to top it all off, they project their own pathologies onto their opponents. The modern left would fit in well with Pol Pot, Stalin, and Mao.

    3. If he is not a legitimate president, he is not subject to impeachment or term limits. God Emperor For Life!

  5. These blog posts are getting hard to read. I think the new WordPress “Gutenberg” editor is messing up.

  6. Remember Roseanne Rosannadana on Saturday Night Live? This is Pelosi’s Rosannadana moment as follows………..

    Trump is a danger to our democracy, is going to steal the 2020 election and is a danger to our national security. Hmmmmmmm? What? NEVER MIND.

    1. Yeah, UnWoke: Trump and Senate Republicans refuse to address election security problems. Russia actually hacked into election computers in Estonia and caused them to crash, and it has been reported that 16 U.S. states could be vulnerable to such hacking as well. If Russia can get in to the system, it can change or invalidate votes. Months ago, the House passed an election security bill that would require back up paper ballots for states where voters cast their ballots by computer (among other protections). That is literally the least we can do, but Republicans don’t want this. Why, do you suppose? Could it be because Russia was able to help him “win the victory” during the last election?

  7. America is in a condition of hysteria, incoherence, chaos, anarchy and rebellion.

    President Abraham Lincoln seized power, neutralized the legislative and judicial branches and ruled by executive order and proclamation to “Save the Union.”

    President Donald Trump must now seize power, neutralize the legislative and judicial branches and rule by executive order and proclamation to “Save the Republic.”

  8. I’m still not seeing a statutory or constitutional requirement that the Senate cannot hold a trial without formally receiving the Articles of Impeachment from the House. That might have been tradition, but I don’t see the requirement. It seems to me the Senate could hold the trial right now if they chose to do so. They have the sole power.

    1. There is clearly no requirement whatsoever. The Senate should announce that they are moving forward with a trial.

    2. Keith Price – I think the Senate should start the trial on Jan. 6 and see who shows up.

  9. Nancy Pelosi and House Democrats have impeached President Trump.

    The President has the power to pardon himself which he can do in the absence of Senate action due to the non-delivery of the charges of impeachment by the House.

    1. The Presidential pardon power does not extend to impeachment. The Constitution is very clear on this.

      1. Ivan, thank you. I stand corrected. I presume, the impeachment process is in suspended animation until the end of the House and Senate terms when it will terminate.

  10. a friend explained to me that the gambit here is that the Dems could possibly wait 12 months until the late 2020 election results are in and they think they might win the Senate.

    This would be a preposterously long delay which will subject them to severe ridicule and an almost certainty they WONT win the Senate

    Wasnt it just a couple weeks ago they were telling us it’s a BIG HURRY THAT’S WHY THEY CANT WAIT FOR THE ARTICLE III COURTS TO SORT OUT TRUMP’S CLAIM OF PRIVILEGE?

    Not so much of a hurry after all!

    I GUESS THEY WERE LYING.

  11. Darren Smith, there may be problems with the blog’s font and format that require your immediate attention. Comments are illegibly small on my screen.

  12. Impeached or not, I could honestly care less. What they should care about is that after the psst three years, I am never voting dem again.

    1. Voting dem is a moot point. The entire communist (liberal, progressive, socialist, democrat) American welfare state is unconstitutional. Congress cannot tax for any form of individual welfare, only “…general Welfare…” and Congress cannot regulate anything other than the “value” of “money” and the flow of “Commerce with foreign nations, among the several States and with the Indian Tribes;…” to preclude favor or bias by one jurisdiction over another. Dems are moot as soon as the SCOTUS starts accomplishing its mission.

  14. I suppose we may get an argument that since House managers are used in the trial, this somehow gives the House a backdoor to dictate to the Senate on the nature of that trial.

    To that end, Turley writes: 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.

    The integrity of the process? That’s a good one.

  16. It looks to me like a reasonable reading of the Constitution is that the House is required to submit the articles of impeachment and submit them in reasonably short order. And that their work is done in this matter. They do not get to inject themselves into trial issues.

    Even a strict constructionist is stretching things to claim “it doesn’t precisely say that.”

    I don’t think the Founders anticipated quite this level of silliness, so the particulars were assumed to be automatic.

  17. this is truly hilarious. are they calling it a “mulligan”? where are they going with this. perplexing stunt, but i’m getting a good laugh out of it!

    bunglers!

  18. Feldman is another one of these guys too smart for his own good.

    It’s fun to watch an expert like Turley dispatch this kind of sophistry.

    1. He’s not too smart for his own good. He has too little integrity for anyone’s good.

    1. Scholars are marketing their opinions. That excludes Turley who seems to be one that puts away bias when discussing Constitutional issues in relationship to the Constitution.

    2. Read the English language in the Constitution; specifically the “manifest tenor.” More importantly, anyone who has to ask that question should never be allowed to vote. That’s akin to one playing monopoly and asking how we are to understand Monopoly. Read the ——- rules. Try this. Go to Article 1, Section 8, and read that Congress has the power to tax ONLY for “…general Welfare…” not individual welfare and that Congress has the power to regulate ONLY the “value” of “money” and the flow of “Commerce with foreign nations, among the several States and with the Indian Tribes…” to preclude bias or favor by one jurisdiction over another; Congress has no power to regulate anything else. Read the English language and discover that the entire communist American welfare state is unconstitutional. After reading, you will have a keen understanding of the vast and expansive concept that the American Founders had of American freedom. The People are free. It’s the government that is severely limited and restricted.

  20. I don’t understand Professor Turley why you said Obstruction of Congress was an impeachable offense if proven. You said in the Judiciary committee that when there is a disagreement between the Executive and Legislative Branches, that these would be adjudicated by the Judiciary Branch. But as Congress never decided to pursue a legal course through the courts; and the courts did not rule on this, it could not be obstruction as the Executive Branch was not given a ruling by the courts. As they are co-equal branches, Congress cannot tell the Executive what to do and visa versa. And the courts hadn’t ruled. So why is Obstruction of Congress an impeachable offence (if proven)?

    1. I’d be interested in your reply to Douglas Rees too. Interesting question. Someone is paying attention.

    2. My Guess is Prof Turley means that if a court order was obtained and the witnesses still would not testify that would prove obstruction.

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