“There’s No Impeachment”: Trump Repeats Feldman’s Flawed Interpretation Of The Constitution

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.

68 thoughts on ““There’s No Impeachment”: Trump Repeats Feldman’s Flawed Interpretation Of The Constitution”

  1. I don’t always agree with Tulsi Gabbard. I don’t always disagree with her either.

  2. A serious legal and Constitutional question arises if Pelosi sits on the Articles all year, waiting to see if Trump wins on Nov. 3rd. I believe there must be some timeliness to sending the Articles to the Senate, or else they expire. Certainly, the re-election of the President to a 2nd term would sweep uncommunicated Articles aside. It’s possible that the President could petition the Federal Courts to have the Articles ruled unconstitutional, if he is denied a Trial in the Senate in a speedy manner. He could petition for dismissal on the grounds of being denied due process. Mrs. Pelosi is playing a dangerous game to hold back the Articles longer than the Holiday recess.

    1. +..........................................................................................................................................................................W says:

      pbinca – according to the Nixon case, the Articles are already ripe. According to Senate rules they have to receive them in 30 days.

    2. Pbinca,
      According to Constitutional Law Professor Josh Blackman, Senate rules require to the House to present the Articles of Impeachmemt to the Senate within 30 days, or they are null and void.
      And the one impeached is acquitted. See Blackman’s article in the Dec. 19th reason.com edition. (I think it was the 19th.)

    1. I had high hopes for nation building. The United States has shared its largesse in air around the world. I imagined a world in which we exported democracy, freedom, and Western values.

      These were soundly rejected.

      The United States was founded by people expressly seeking a free society, and the right to worship as they pleased. This was the underpinning of our culture and Constitution, finally fully realized with the emancipation of slaves.

      However, we differ from the rest of the world. Even among the West we have the most robust free speech protection. Elsewhere, individual liberty is unknown. Democracy, individual freedom and rights, equal rights for women, religious liberty…it’s been soundly rejected everywhere we try to share it. This is why the calamities around the world keep happening, driving refugees. The tribal wars, religious intolerance, deprivation…It is impossible to improve and farm arid drylands when the region is constantly gripped with unrest and tribal warfare that has been going on for generations. China is not going to stop polluting because its citizens don’t have strong individual rights. Their government could care less if they complain, and has the right to poison them, and the environment, for “the greater good.” They’ll just lie and call it fog. The Middle East has the same religious intolerance it’s experienced for over a thousand years. Afghanistan has the same corruption, tribalism, and intolerance it always has.

      These places will gladly take our money, use our roads and bridges, enjoy our newly built infrastructure, but they have no interest in becoming the West.

      At some point I had to admit defeat. Nation building is a waste of our hard earned taxpayer money. Frankly, war should be a last resort, but decisively done. And then it should end.

      1. We can only lead by example. What people mature with, does affect the rest of their lives. If they cannot see an example, it is difficult to understand it is attainable. But, only they can build it for their children.

        That said, you are correct. We cannot force this upon others, we can only encourage it’s growth.

  3. WSJ:

    President Trump Is Impeached. Or Is He?
    A party-line House vote leaves no principled argument against a party-line acquittal.

    By Alan M. Dershowitz
    Dec. 22, 2019 3:08 pm ET

    Suddenly, impeachment can wait. Speaker Nancy Pelosi said Thursday she’ll delay transmitting the two House-approved articles to the Senate, in an obvious ploy for partisan advantage. For anti-Trump legal scholars Noah Feldman and Laurence Tribe, that has created a Schrödinger’s Cat scenario. They disagree on whether President Trump has been impeached at all.

    Mr. Feldman says no: “If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president.” Mr. Tribe says an affirmative vote on an article of impeachment is sufficient to impeach—but he also claims it’s proper to leave it at that. By declining to transmit the articles of impeachment, he argued in an op-ed that Mrs. Pelosi evidently found persuasive, the Democrats would get a win-win. Mr. Trump would carry the stigma of impeachment and be denied the opportunity to erase it via acquittal.

    Messrs. Feldman and Tribe are both wrong. Mr. Tribe errs in asserting that the House can deny an impeached official a trial. Mr. Feldman errs in denying that the approval of articles of impeachment is sufficient to constitute an impeachment. The Senate need not wait for the articles to be “transmitted.” The Constitution grants the House the “sole power of impeachment,” and the Senate the “sole power to try all impeachments.” Now that the House’s job is done, it is up to the Senate to schedule a trial and make the rules for it.

    My view—which I suspect much of the public shares—is that Mr. Trump was impeached by a partisan vote and deserves to be acquitted by a partisan vote. The representatives who impeached him along party lines after devising partisan rules of inquiry have no principled argument against a party-line acquittal.

    Mr. Dershowitz is a professor emeritus at Harvard Law School and author of “Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo.”


    1. Estovir, I do not know the law. I wonder if the Senate can just get on with the impeachment trial without having to wait for the gamesmanship of the House to release its bill. It’s best not to get sucked in to manipulative games. But does the Senate have the right to do so?

      1. Karen, If Turley, Dershowitz and the other legal “scholars” disagree, it means the decision goes to whoever has the power, which means Pelosi. The difference between Pelosi and McConnell is that one will lie, manipulate, mislead and be so craven for power that she will do whatever it takes by any means necessary to get that for which she lusts: absolute power. McConnell will be a gentleman, be polite and defer to the dignity of the US Senate. Republicans always cave. Hopefully Chief Justice Roberts will step in and do the right thing, but given his tie breaker vote for ACA, Obama’s trojan health horse, I wouldn’t count on Roberts doing anything that would upset Pelosi’s tantrums because we all know when she threatens another man, she always wins

        Here is the Good News, Karen: you and I have read the Good Book, and we know how it all ends. Dont lose your peace over politics for which neither you nor I can influence. Focus on your immediate surroundings and your sphere of influence where you can make significanf influence in whatever way possible.

        Keep your eyes on the Light for darkness leads to lack of peace and separation from God, the quintessential form of Hell.

        Merry Christmas to all.

        Feliz Navidad a todos.

        Gospel Saint Matthew 1:18-24

        This is how the birth of Jesus Christ came about.
        When his mother Mary was betrothed to Joseph,
        but before they lived together,
        she was found with child through the Holy Spirit.
        Joseph her husband, since he was a righteous man,
        yet unwilling to expose her to shame,
        decided to divorce her quietly.
        Such was his intention when, behold,
        the angel of the Lord appeared to him in a dream and said,
        “Joseph, son of David,
        do not be afraid to take Mary your wife into your home.
        For it is through the Holy Spirit
        that this child has been conceived in her.
        She will bear a son and you are to name him Jesus,
        because he will save his people from their sins.”
        All this took place to fulfill what the Lord had said through the prophet:
        Behold, the virgin shall conceive and bear a son,
        and they shall name him Emmanuel,
        which means “God is with us.”
        When Joseph awoke,
        he did as the angel of the Lord had commanded him
        and took his wife into his home.

  4. Trump has been impeached, in a case that will be infamous in history for Democrat abuse of power. There has not been a trial yet, as Pelosi again tries to abuse power and control the Senate.

  5. Professor Turley, you are an academic of the legal discipline.

    President Trump is a politician of the political discipline.

    In politics, there is no impeachment. The communists did not “kill the King.”

    “When you strike at a king, you must kill him.”

    – Ralph Waldo Emerson

    President Trump is still standing, ergo, he has not been adversely affected or, otherwise, “impeached.”

    A good example is when Obama fraudulently declared he was eligible to be president from his political perspective,

    you should have said that, while Obama could make the preposterous claim as a politician,

    he didn’t meet the legal definition of “natural born citizen” in the Law of Nations, 1758,

    referenced and cited by the Founders, and will never be eligible to be president as an esteemed legal academic.

  6. And “it often appears that” Phillip, Peter, Burgoyne, Shill, PH, Hill, Acland, and others are “the same commentator”

  7. The impeachment is flawed, beyond all doubt. And if that is the case then Trump has NOT been impeached. For anyone to suggest otherwise is simply ridiculous.

    What we have now is the equivalent of being found “guilty” of committing a non-criminal act. Which, of course, has happened with the Fed before, but granted due-process, those convictions are eventually tossed.

    To deny Trump that due process is to break the Constitution. destroy what was intended as an apolitical impeachment process, and open the House itself to “impeachment .”

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