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. The constitution lays out a removal process and components of that process are impeachment and trial. If the articles are never delivered to the senate, then the entire constitutional removal process is abandoned including all components.

  2. The House of Representatives’ vote to impeach President Trump and the Articles themselves are documented in the Congressional Record. Why is the Senate dependent on Speaker Pelosi hand carrying the Articles to Senator McConnell in order for the trial to commence? Just sayin’ . . .

  3. <>

    How so? Is there a constitutional provision for impeachment’s expiring? In refusing to take jurisdiction, does not Marbury v. Madison speak to the notion that once an appointment of a federal officer is made, said appointment cannot expire? How is impeachment any different?

    1. — 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. —

  4. Senate rules currently require the house to transmit the articles of impeachment. The rules can be revised.

  5. I have searched and searched the US Code and Abuse of Power and Obstruction of Congress are not even listed… that means, there are no laws against it. That means that the articles of impeachment as voted are do not meet constitution muster and no, until those articles move forward, impeachment isn’t really an impeachment. A vote does not matter if nothing is done with it. It’s silly to think otherwise. If you are charged with a crime and those charges are never filed with the courts then you’re never going to be tried. As of right now, Nancy Pelosi is asking for quid pro quo, she is obstructing justice, and she is abusing her office, which actually IS a crime.
    § 11.448 Abuse of office.
    A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor if, knowing that his or her conduct is illegal, he or she:

    (a) Subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or

    (b) Denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.

    see Amendment 6, right to a speedy trial.

    Professor Turley, I’m disappointed in your partisanship.

  6. quote: 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.

    so if the “act” is not complete …. it is not a …. completed task… -lol . therefore, NO impeachment as the act has not been completed.

    1. You’ve got it all wrong.
      “so if the “act” is not complete …. it is not a …. completed task… ”
      He said that “there is no requirement of referral to complete the act”. The act is complete without the requirement of referral.

  7. If the Senate has the sole power to try all impeachments that one of two things must be true:

    1. The Senate has the power to immediately try the impeachment of Donald Trump without waiting for the House to deliver the articles of impeachment or

    2. The impeachment process is not yet complete.

    Otherwise the this would be an impeachment that the Senate does not have the power to try, a violation of the constitutional provision.

    1. The entire House did vote to impeach, and the Senate has the sole power to try the impeachment. Apparently what some people are saying is that the Senate must hold up until Nancy causes the articles to be delivered, or that it is not an impeachment at all yet. Don’t see that in the Constitution.

  8. Dr. Turley, you forgot, “Each House may determine the rules of its proceedings.” You also seem to ignore that the House chose Pelosi as its Speaker. (Chused?) The resolution says he is impeached, but if the resolution itself constitutes an expression to the senate that the president is impeached in accordance with house rules, why does the inclusion of the articles that it calls to be exhibited not likewise constitute an expression of themselves? There is no point calling for them to be exhibited if the resolution communicates itself to the senate. There is also no point in their Speaker saying that she is withholding the articles if the resolution expresses itself to the senate. But presumably their Speaker speaks for them unless and until they provide some other agent or means. So if house rules allow her to decline to express the fact or body of the impeachment to the senate, the “impeachment” they voted on is not an impeachment in the sense contemplated in the constitution, and not even in the sense that I am currently impeaching your argument. Any sense of impeachment must contemplate detraction of an object to an audience. The house is only in effect talking to itself, which cannot constitute any sense of impeachment, so the clause claiming Trump is impeached is nonsense and constitutes nothing. And please don’t impeach yourself by claiming that I confuse impeachment with conviction. I contemplate only the house action prior to any consideration of the function of the senate. The only sense in which the house has impeached Trump is in the constant calumny of its members against him.

  9. Professor Turley, this may be somewhat late in coming, but after the impeachment vote, I read all 53 pages of your analysis and testimony before Congress. I found it both historically and legally coherent. I also found that your testimony was not accurately reported by many media outlets. I do not think you could fairly be confused with being a Trump supporter, as many claimed. I do think you were very even-handed in your analysis, and think you would have given the same counsel if it were a Democrat accused on the current set of facts alleged in the record.

    Where you may have made a mistake is in believing that the majority in the House wanted information on a possible course of action, rather than confirmation of something they had already planned to do.

  10. Prof. Would it be reasonable to say that the House doesn’t need to officially transmit anything. Their conclusions are a matter of public record. Their reports, deliberations, and votes were carried out openly. Since the Constitution makes no specific requirement to send or transmit articles one could argue the Senate has all they need to proceed. In fact the Constitution allows the Senate sole discretion over impeachment trial. The majority could proceed in any manner they see fit. Also the House failing to send articles could be viewed as a Writ of Attainder and a violation of the POTUS right to a fair and speedy trial. Wouldn’t that also be grounds for them to proceed without House action? Under separation of powers the House cannot dictate to the Senate. Yes the POTUS has been impeached but the disposal could be quicker than Democrats imagine.

  11. Non-sensical arguments, when “abuse of power” and “obstruction of congress” are non-sensical charges. At first it seemed that Mr. Turley was reasonably coherent. That was quite apparently an erroneous assumption.

  12. “to many of us, Trump is an existential threat to our democracy.”

    Translation: “to Democrats, Trump is an existential threat to Democrats being in power.”

    It really is that simple, and that petty, and that full of hubris. It is why so many of us will not be voting Dem again.

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