I recently criticized the position of my fellow witness from the Trump impeachment hearing, Professor Noah Feldman, that Trump is not technically impeached until the articles of impeachment are referred to the Senate. I have known Noah for years and respect him but this theory is utterly without foundation in the text or history or logic of the Constitution. The theory is a chimerical conflation of the impeachment and removal provisions. President Donald Trump however has seemingly embraced the theory that he is not actually impeached. Even as mockery, Feldman’s theory should not be further referenced in my view as credible. The President’s status is clear. He stands impeached, but untried.
President Trump lashed out at the Democrats from West Palm Beach yesterday, declaring:
“They had nothing. There’s no crime. There’s no nothing,” Trump said. “How do you impeach? You had no crime. Even their people said there was no crime. In fact, there’s no impeachment. Their own lawyer said there’s no impeachment. What are we doing here?”
The reference to Feldman’s theory could be simple taunting but there have been reports that the White House was thinking of adopting the clearly erroneous interpretation.
I have already explained why this interpretation is unsupported and untenable from either a textual or historical standpoint. While various people have long used the verb “impeach” and noun “impeachment” to refer to Senate trials, that is not a constitutional argument that the impeachment stage bleeds into the trial stage or that the House impeachment function is dependent on an act conducted to the trial or Senate.
Trump added that the Democrats have elected to “pursue an illegal, unconstitutional and hyperpartisan impeachment.” I have obviously criticized this impeachment. However, the way to oppose the effort is not to simply force a muscle vote while citing dubious constitutional interpretations. There are strong defenses against conviction but such defenses are undermined by opportunistic or unsupportable interpretations.