Academia, Constitutional Law, Media, Politics

“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. Pingback: When Is an Officer Impeached? IV – ALibertarian.org

  2. Leave the Demacrap Party. We need a new party. Or perhaps the Republicans are fine.

  3. Pingback: When Is an Officer Impeached? IV | Libertarian Party of Alabama Unofficial
  4. Pingback: When Is an Officer Impeached? IV - G20 Intel

  5. When I voted in 2016, I “held my nose” (for various reasons) and voted for Trump. I soon became an avid supporter. Added to other reasons, I felt (and still feel) that he will always put America first, and that he was being unjustly crucified for it, by Dems, the media, Hollywood, and all the other “elites”. Proudly deplorable!

    That said, I agree with Prof JT that President Trump was impeached on Wed, Dec 18. Further, I believe that this will (and should, “constitutionally” speaking) remain a part of his record. That many of his supporters, including me, feel that the charges were incredibly bogus, doesn’t negate the fact that the House did what it was constitutionally permitted to do. In other words, I believe that he shouldn’t have been impeached, but since the vote was taken, it stands, no matter how I feel about it. Whether or not the vote itself or the delay in communicating same to the Senate hurts the Dems in 2020 or beyond…who knows?

    The Founders were very precise in their wording of Presidential impeachments. Paraphrasing: Impeachment exclusively in House, trial (and perhaps conviction/removal) exclusively in Senate.

    What the Founders didn’t do was to describe any process that “bridges” the activity between the two houses: impeachment managers, “delivery” of charges/votes to the Senate, mandatory or permissible time limits from one to the other, etc. These, I presume, have been developed over time by both houses, either by precedent or by House/Senate rules. As such, they are legitimate, but can be changed with majority votes.

    There’s another question/idea looming, one I’ve seen a couple of times over the past few days: can the impeachment vote be “expunged”? Yikes! Once again, Constitution is silent on this, but my guess is “No”. I doubt if even the Supreme Court would get themselves involved in this monster. If a vote can be expunged, could that same “expungement” (did I just make up a word?) be reversed at a later time? My head is exploding.

    Leave the vote as it stands.

    1. Barbara Schlesiona – I accept that the House voted on impeachment, however, they need to get it to the Senate to complete the deal. They are 90% to the goal line, but they are stopping on the 10 yard line. No bill in the Senate, no impeachment.

      1. Paul C Schulte – If the terms of “transfer” or “delivery” to the Senate were expressly voted on, or agreed to, by Congress at some point in the past, then that would allow for the “completion of the deal”, and I’d agree with you (happily!).

        Since this tactic has never been attempted (and I doubt if anyone ever foresaw it), it’s gonna be messy. I do believe, however, that the Senate is not constitutionally bound to wait for the House. They can proceed if they wish: dismissal (my first choice), trial “lite” (no extra witnesses, quick acquittal), or full blown, hair-on-fire, break-out-the-popcorn battle royale (fact witnesses including Schiff, Vindeman, Ciaramella at a minimum).

        Or they can wait.

        In any event, I hope that I’m wrong in my initial assessment, and that you’re right.

  7. TRUMP’S FRIDAY TWEET WAS SHOCKINGLY INAPPROPRIATE

    @realDonaldTrump
    Dec 20

    Donald J. Trump Retweeted The Associated Press
    A total Witch Hunt!Donald J. Trump added,
    The Associated Press
    Verified account

    @AP
    BREAKING: Russian President Vladimir Putin says U.S. President Donald Trump’s impeachment is far-fetched and predicts the U.S. Senate will reject it. http://apne.ws/QSginnX
    13,846 replies 11,161 retweets 52,560 likes
    ………………………………………………………………………………………………………………………..

    I’m surprised this tweet didn’t become a major story. Here Trump is facing impeachment, after the Russian probe, largely due to his admiration for Putin. Yet he tweets this news headline heralding Putin’s opinion of the impeachment.

    This Tweet could be Exhibit # 1 illustrating why Trump is being impeached: ‘He can’t shut-up about Putin’! Which make us naturally wonder what hold Putin has on Trump. It illustrates as well that no Aide or Staffer can tell Trump to zip his mouth on Putin.

    1. I’m no longer shocked that Putin has a better understanding of our constitutional processes and the western traditions of justice than the anti-Trump crowd in this country.

          1. Olly, we never see any real arguments from you. Just Ann Coulter-like insults. It often appears that you and Mespo are really the same commenter with an Ann Coulter book at their side.

            1. Shill,
              Don’t be so hard on yourself. You’re not wired to recognize any real arguments. And I’ll take the compliment regarding Mark. If he recommends Coulter’s book, then I should read it.

      1. Paul, I’m glad you brought this up. This meme, or whatever you’d call it, is, just as ill-advised as the Putin tweet.

        The darkly lit photo of Trump looks more like an ‘anti-Trump’ meme. At first glance I thought it was!

        Instead Trump is appealing to the paranoia of his supporters while claiming that attacks on him are attacks on all Trumpers. How divisive can you get!

        This meme betrays Trump’s notion that he ‘is’ the state. Therefore attacks on Trump are attacks on America. When in reality Trump was ‘elected’ by only 27% of the total electorate and his approval has typically been in the low 40’s.

        In short I’d say this meme is both spooky and insightful.

        1. Phillip,
          Trump’s notion is not that “he is is the state”.
          He may view himself as “the chosen one”, but Rick Perry backs him up on that.

  8. If Trump were to take this to the Supreme Court, Nancy Pelosi would immediately send the articles of impeachment over to the Senate, just to keep the Supreme Court from ruling against her.

    I think it would be best for the country, and the rule of law, if the Chief Justice of the Supreme Court would open the trial and immediately call for the indictment to be read into the record. Following the reading of the indictment, declare that since there is no law cited as having been violated there is no crime. Dismiss the charges, and close the trial.

  9. Turley’s assertion that ‘Trump acted improperly’ seems entirely based on Turley accepting the notion that Trump’s motivation for investigating Crowdstrike, Burisma’s money laundering or Hunter Biden were purely selfish or political..

    But the transcript evidence quotes Trump as expressing a national interest — …”do us a favor”… — it seems no ‘crime’ has been committed as is required by the Constitution….

    Question: In the absence of a ‘crime’, could the President sue the House and ask the Supreme Court for En banc review with the intent to simply declare the entire impeachment vote ‘unconstitutional’ and therefore null-and-void.

    1. Mark R Leberer – according to the Nixon case, the SC will not get involved unless the defendant, in this case the President, makes the claim he did not get a fair hearing. Trump could certainly make that that claim in the House, but he is in the clear in the Senate, so it might be better to let it ride out.

    2. Trump’s motive for his remarks on the phone call was to illicit disapprobation. He got exactly what he wanted.

      Nobody has perfected the process of harnessing the hatred of his opponents to his advantage than Trump.

  10. I don’t care what is claimed the House accomplished, he remains the same Art. II President he was before the the impeachment vote. That won’t change even if the Senate holds the trial. Biden’s Ukraine troubles have only just begun. Democrats have the worst slate of candidates imaginable. And lastly, Durham and Barr will blow up the Democrat party by exposing them as the anti-constitutionalist, criminal mob that they are. Democrats won’t sniff a majority at the federal level until the people are convinced their party has been cleansed of those responsible. This includes a purging of those rogue elements within the administrative state.

    Merry Christmas and a very Happy New Year! 😎

  11. Put in modern terms the grand jury on a rigged vote voted to indict but is holding it in abeyance until some later unknown date. At that time when it reaches the Senate Officially it will start it’s procedure AND that includes changing any of the Senate Rules such as date selection that it wishes to change. Same thing a Judge might do passing a Grand Jury procedure to the Petite Court for an actual trial. Until then nothing changes for the Executive Branch they just keep on keeping on and that includes investigations and so forth.

    The President is still Commander In Chief and National Command Authority and still has Executive Orders rights. All for two nonsense charges that are applicable more to the Pelosites than any other single part of government. They can still be charged under the Patriot Act under the terrorist provisions for example. Suspicion of terrorist acts or supporting terrorism including those concerning weapons of mass destruction which now add illegal drugs to chemical, biological, and nuclear for a total of four.

    More to the point Pelosi can be apprehended for knowingly seating unqualified which as a violation of oath of office fits suspicion of terrorism when you include the Constitutionally illegal Resistance movement . Remember under Patriot Act probable cause does not exist only suspicion of. and Congress like any citizen is not exempt.

    What? You weren’t paying attention when Obama got the Pat Act widened, broadened and extended to include those little features?

    Back to the PCrap Show just how, exactly, are they going to prove it when you consider the Presidential Oath contains the lines, to the best of my abilities?

    The budget Comrade Pelosi is over due from March. When are you going to go to work and do your job instead of supporting the socialist liberal fascist left and that means all who haVE STATED openly they do not support or follow The Costitutution after taking the oath or like the Squats refused to take it.

    Jail time for the Pelosites

    There! I just filed a legal complaint.

  12. If you did not have to look the words up, Mr. Schulte, RDKAY may not believe that you are a Trump supporter.
    They ain’t supposed to know no words like that.

    1. Anonymous – just because we are deplorables, doesn’t mean we can’t read them big ass words.

  13. This whole thing has been convoluted that no one can truthfully say what is what. The Constitution articles on impeachment refer to an “impeachment” in the House followed by a trial in the Senate, a two-part process. Technically, the word has multiple meanings with the common use being “to charge with a crime or misdemeanor.” Since there are no crimes or misdemeanors involved in this situation, that there has been an actual impeachment is questionable. By the way, the Constitution wasn’t written for lawyers. Constitutions, whether they are for churches, organizations, states or nations are written to establish the mechanism of government. What the Democrats – and only the Democrats – did in the House was a purely political act which I believe was intended to give them something to run on in the upcoming election. It was political theater, not an actual attempt to charge the president with a crime or misdemeanor. Instead, they went with two charges that are neither and which are purely political partisan theories (I.E. Democrat Jon Turley, who sometimes lets his politics get in the way of reason.) The question is, if Pelosi had no intention of sending the articles to the Senate, why bother?

    1. semegowanjr – it has been purported that the Squad hold a great deal of power in the Democratic caucus, enough to topple Nancy if need be. Therefore, since they (the Squad) are pushing impeachment, Nancy gives them a show trial, but hangs on to the Articles. She has mollified the Squad and she has muddied Trump.

      However, Trump is a street fighter. He is not going to take this lying down. Nancy is going to pay a huge price from Trump. I wouldn’t be surprised to see SF cut off from Federal funds.

  14. Once again, Prof Turley – this is a tempest in a teapot. Who cares whether the House charges constitute an “impeachment” or whether there is no impeachment until the House sends its document over to the Senate? And who cares if Trump wants to bleat that he has not been impeached? The facts are out. We know that Trump dun wrong. Even you, Prof Turley, concede that Trump acted improperly.

    We also know that if the House Dems send the charges over to the Senate, the Senate will dismiss them (find Trump “not guilty”) based on the Rs’ pusillanimous obeisance to Trump. (You Trump supporters now have two words – maybe more – that you will have to look up.)

    Now on to the Dems’ selection of a ticket – any ticket! – that can beat Trump in November.

    1. RRKAY – as an Independent supporter of Trump, I did not to have to look any words up. I do not concede that Trump did anything wrong about that Ukrainian phone call. I think the Democrats are just butt-hurt that one of their own was going to get investigated.

      1. Paul – Glad that you are conversant in English. Regarding your refusing to accept that Trump did wrong in extorting Ukraine to investigate the Bidens in exchange for the release of Congressional-approved military aid to Ukraine — even Prof Turley agrees that Tump was wrong to do so. For some reason, however, Prof Turley wants “more evidence.”

        1. RDKAY – Reasonable people can disagree. I disagree with JT about half the time, but that does not mean I think he a bad person or I think less of him, just that we disagree. Trump did not extort Ukraine. One of the elements of extortion is the victim has to feel extorted. Ukraine has said several times they were not and did not even know about the money being held up.

      2. RDKAY may be thinking that all Trump supporters think those two words are dirty words.
        Especially the first one. I think he should stay with that “basket of deplorables” variation, because it’s such an effective 🙄campaign strategy.

        1. Anon – Yeah, that was a bit snarky of me. But can’t I have a little fun while imbibing from Prof Turley’s tempest in a teapot?

          1. I was hoping that you would use that deplorables variation to sway voters
            I’m disappointed that you you only having fun with it, and that you won’t make that a key part of your strategy to take votes from Trump.😄
            Hillary learned that insulting her opponent’s voters wasn’t the wisest thing to do.

    2. @RDKAY… Aren’t you just so very special with all them big words… Confusing us poor, uneducated conservatives. Bless your heart child.

  17. If a person drafts a complaint but fails to file it with the court, the named defendant is not sued. The Constitution states that the House has sole responsibility for impeachment. With impeachment understood to be performing all required steps to be taken by the House, the House must deliver the Articles to the Senate and name the persons who will act as prosecutors. Since the House has not completed their duty, it is reasonable to say that President Trump has not been impeached.

  19. Thank you Professor Turkey for clearing that up for me. I’m curious as to what the Speaker is doing because now is the time for President Trump’s trial. He deserves one and those of us that support him are anxious to clear his name in the Senate.

    1. Gobble Gobble. If he wants to clear his name all he has to do is come testify and let those with knowledge of the events come testify. Most Americans regardless of political affiliation want the witnesses to be heard. Clinton testified. Nixon didn’t block everyone. McConnell and Trump should just let everyone come in and testify…

    1. If you go by the political rules of some other ideology but for Constitutional purposes it was perfectly imperfect since those that voted for it and all that went before are oath breakers or non oath takers and therefore ineligible to be considered citizens. having openly for many stated so publically and that started in 1909.

      Who will rid us of these meddling some? Either the voters as we did in 2016 or by calling on the military to carry out their oath of office. And it won’t take tanks in the streets.

      Comrade Obama never did get around to creating his protective groups and for sure never answered calls for martial law. Not wanting to be the first one handcuffed.

      So DOHS never did become as big or bigger than the military and now as DHS is not likely to become a Schutz Staffel as Obeyme envisioned or put another way. Directorate of Internal Security Staffs.

      In any case your comment is rejected as patently unconstitutional as is your illegal resistance but our counter revolution is legal

      Where did you think all those votes came from in 2016? Ballot stuffing and forging like the left? Made out of Acorns?

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