I Was Against Trump’s Impeachment. But Let’s Not Pretend That It Didn’t Happen.

Below is my column in the Washington Post on the widely reported theory of Harvard Professor Noah Feldman that President Donald Trump has not yet been impeached.

Here is the column:

HED: I was against Trump’s impeachment. But let’s not pretend that it didn’t happen.

DEK: Constitutional reality doesn’t rest on Pelosi sending the articles over to the Senate.

Last Saturday in West Palm Beach, Fla., in remarks to a group of young supporters, President Trump road-tested a talking point that appeared to be aimed at changing the narrative around his December impeachment: “You had no crime. Even their people said there was no crime,” he said of congressional Democrats, before adding, “In fact, there’s no impeachment. There’s no — their own lawyers said there’s no impeachment.”

Trump was clearly baiting House Speaker Nancy Pelosi (D-Calif.) after she refused to send her chamber’s two just-passed articles of impeachment to the Senate before leaving town for the holidays. The move caused something of a stalemate with Senate Majority Leader Mitch McConnell (R-Ky.) and precipitated a curious debate about whether Trump is actually impeached. It’s unclear what Pelosi and McConnell may do in their game of constitutional chicken between now and when the House reconvenes in January, but one thing is clear: Trump was impeached.

As I said earlier this month before the House Judiciary Committee, I was opposed to this impeachment. While I testified that this president could be legitimately impeached on these two articles, abuse of power and obstruction of Congress (while rejecting other potential articles like bribery), the record is the thinnest of any modern impeachment to go to the Senate, which could result in a trial as cursory as its investigation. Trump’s suggestion that he remains unimpeached appears based on a theory recently floated by my colleague, Harvard Law School’s Noah Feldman, that “Trump Isn’t Impeached Until the House Tells the Senate.” But while this theory may provide tweet-ready fodder for the president to defend himself and taunt his political adversaries, it’s difficult to sustain on the text or history or logic of the Constitution.

Our Constitution contains several specific provisions addressing impeachment, but the two most critical (found in Article I, Sections 2 and 3) state that the House “shall have the sole Power of Impeachment” and that the Senate “shall have the sole Power to try all Impeachments.” Those powers are meant to work in tandem, but the House’s “sole Power” to impeach isn’t dependent on the Senate’s “sole Power to try.” These are two distinct acts contained in two distinct powers left to two distinct houses of Congress.

This interpretation can at first glance appear credible because the word “impeach” is often used colloquially to refer to the Senate as well as the House proceeding.  Thus, people often will say that a president is being impeached in the Senate trial. Other use impeachment as synonymous with removal.  Indeed, Feldman himself used the term loosely during our hearing like declaring “Impeachment is complete when the President abuses his office and he abuses his office by attempting to abuse his office.”  Apparently now however impeachment is not “complete” until the House approves an article of impeachment, a list of House managers is adopted, and the article of impeachment is physically taken up by the Senate.

It is certainly easy to conflate these powers under the general rubric of “impeachment.” In one sense, “impeachment” is the “dirty, filthy, disgusting word” that Trump said it was earlier this year. It signifies a resort to the break-glass-in-case-of-emergency procedure bequeathed us by our Framers. In my lifetime, we’ve associated it with President Richard Nixon, who resigned the highest office in the land just to avoid it; and with President Bill Clinton, for lying under oath to cover up an extramarital affair. In common parlance, “impeachment” has become synonymous with both impeachment and removal: Hours after being sworn in as a new member of the House, Rep. Rashida Tlaib (D-Mich.) declared her desire to “impeach the motherf—er” — with the clear implication that Trump should be ingloriously turned out of office, not merely charged with “high Crimes and Misdemeanors.”

Whatever we mean in casual conversation, however, can’t obviate the Framers’ intent or the Constitution’s unambiguous language respectively granting each house of Congress “sole Power” over two steps required for the removal of a president. Feldman recently tweeted that “if Nixon had resigned in the few minutes between a House impeachment vote and transmission of the articles, constitutionally he would not have been impeached. Colloquially people might say so, like @nytimes said ‘Trump Impeached.’ But we’re talking Constitution.” Of course, if a criminal prosecutor were to hold or seal an indictment, we wouldn’t call a defendant “unindicted,” but “unarraigned” or “untried.”

Comparing the House to a grand jury isn’t ideal, but the analogy is more illuminating in the meaning of an indictment as opposed to a trial. Both the House and a grand jury must approve charges by a majority vote. If, let’s say, 12 of 23 members of a grand jury find probable cause to support a criminal allegation, it is deemed a “true bill.” Prosecutors can, but do not always submit such true bills to a court for trial. In some cases, the indictment can be held pending further investigation, including the apprehension of a criminal suspect. The defendant however still stands indicted but is still entitled to an arraignment and trial. In the same way, the House must submit articles of impeachment in order to trigger the Senate provision for a trial. There are various reasons why this act could be delayed and during that interim a president, such as Trump, is still properly considered impeached.

Indeed, the Framers clearly described impeachment in the House as a process separate from trial in the Senate. In the Federalist No. 65, Alexander Hamilton delineated the separate functions of the two houses when he asked: “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?”

Feldman writes that his view is informed by English history and common sense: “The whole point of impeachment by the Commons was for the charges of impeachment to be brought against the accused in the House of Lords.” However, that was not the whole point of the Commons. Under English law predating our own system of impeachments, there was no expectation that the House of Lords would take up impeachment cases. During some periods, most impeachment cases were viewed as raw political exercises and not taken up by the House of Lords. For example, during the period between 1626 and 1715, the House of Lords permitted only five of fifty-seven impeached officials to be tried to verdict. [<- I CAN’T ACCESS THIS PAGE ON GOOGLE BOOKS, WILL YOU DOUBLE-CHECK YOUR DATES AND NUMBERS? OR IF YOU PREFER, YOU CAN TAKE A PICTURE OF THE PAGE WITH YOUR PHONE’S CAMERA AND SEND IT TO ME] The Commons continued to call out conduct that it deemed unacceptable even though it did not expect a trial, let alone a conviction, in many cases.

The separation of impeachment and trial makes both practical and constitutional sense. If impeachment required an actual submission to the Senate, it would be an invitation to mischief. For instance, the Senate could go out of session or take other procedural steps to thwart the submission of the articles. If the Senate were under the control of a president’s party (as it is currently), the maneuver could be used to avoid not just trial but the ignominy of impeachment.

Congressional Democrats’ current posture may be too cute by half, and is perhaps politically ill-advised, but any argument that they’ve entered a legal limbo by stalling the delivery of articles to the Senate falls flat. The Framers set a two-thirds requirement for conviction because it knew that some impeachments might be pure political exercises. It is a different standard set for a distinct stage of this constitutional process.

The House calls out presidential transgressions that meet the standard of “Treason, Bribery, or other high Crimes and Misdemeanors.” That is not an ultimate finding of guilt, and alone can’t effect a president’s removal. But make no mistake, the House speaks in its own voice and in its own time. It did so on Dec. 18, 2019.

32 thoughts on “I Was Against Trump’s Impeachment. But Let’s Not Pretend That It Didn’t Happen.”

  1. Wouldn’t a “a trial as cursory as its investigation” still last three months, and have multiple sworn witnesses?

    Maybe even including the ones who were blocked from testifying by the White House?

    Has McGahn testified yet, after being asked to in May last year?

    1. A three month Senate trial would keep Pocahontas, Spartacus, and 2 other Senators off the campaign trail.
      It would also give Joe a chance to rest up; even if he and/or Hunter are called as witnesses, that won’t tie him up nearly as long as the Senate “jurors”.
      I like the idea of a three month trial.

  2. Oh it did happen. but the question at voting time and the discussion is going to be what’s it all about Alfie to cause the proponents to hide it away in a locked drawer? So what if the proponents crow. They do that anyway. BFD.

    They can’t even offer to cancel it in exchange for whatever. The simple plain fact is no one really cares about a grand jury indictment of a DA with a picked jury and the ability to control the outcome who then hides his or her face while all the while we see why these false citizens who violate their oath of office every day are the products of taking allegiance to a foreign ideology.

    Let them crow. it’s just another reason to drive them out of existence and promote/support the walk aways in forming a real second party.

    1. DSS – I wonder if the good doctor has considered has realized that someone can drop the dime on her. 😉

  3. Is there any rational person who believes that the legislative branch could have gotten away with NOT impeaching Bill “Slick Willy” Clinton? Would it have been possible for representatives in Washington D.C. to ignore the acts of Bill Clinton and Monica Lewinsky in the White House and just hope the problem went away?

    The only people even suggesting that President Trump did anything remotely wrong (perhaps a Hint Pro Quo?) are his mortal political enemies and, of course, what else would those radical extremist communists say?

    Few Americans can grasp a nebulous Quid Pro Quo.

    Every American knows what a Lewinsky in the White House was.

    The Founders understood that it would take “good” people to perpetuate America.

    The inmates have taken over the asylum.

    It’s time, right about now, for Americans to assimilate why the Founders distinctly provided them the 2nd Amendment.

  4. Impeach. The word gets bandied about. The House can make a process go and issue or refuse Articles of Impeachment which are similar to an Indictment by a Grand Jury. Then the Senate can have a Trial on these charges and convict or acquit. A President is Impeached when he is convicted by the Senate. It is lame to say that Trump has been Impeached.

  5. I was originally on Feldman’s side on this, but I have now switch to JT’s side. This is after reading the Nixon (judge) case. It appears, except for current Senate rules, the Senate can take up Impeachment on Jan. 6.

  6. Rep. Maxine Waters did call for violence. Maxine needs to be called before a Senate trial. And charged with a hate crime.

  7. If you have a Kindle or similar device and 99 cents, you can get Madison’s notes on the constitutional convention. Among the things discussed was whether the national legislature should consist of one body or two. The fear was that one body might devolve into “legislative despotism.” This impeachment is exactly what they feared and is exactly what Hamilton said in Federalist 65 should never happen.

    JT may be technically right. But I would be willing to bet a significant amount of money that the majority of the electorate now sees this impeachment for exactly what it is.

    As for witnesses, I would play the videos of Al Green saying if we don’t impeach him he will be re-elected; Nadler’s comments during the Clinton impeachment saying it must never be a partisan exercise; Pelosi’s comment that we are not rushing this we have been working on it for two years; and Schumer’s comments regarding the Clinton impeachment saying that no witnesses should be called.

    And let’s not forget Hunter Biden and the so-called whistleblower — the Lord Voldemort of 2019. Everyone knows his name but no one is supposed to say it out loud.

    1. The flunkie Eric Chiaramella or whatever his name is, not “lord voldemort” that is probably Brennan, his former boss ,who issued the order to commmit sabotage against Trump in plain view on Twitter

      Who calls Brennan’s shots? I wouldn’t know. But probably some old billionaire vampire globalist from Hungary who calls himself an American now, whose last name’s a palindrome

  8. any Senate trial will be an acquittal decided entirely along party lines with a sprinkling of pixie dust to project an illusion of legitimacy.
    _____________________________________________

    That is all very nice, but I posed a hypothetical question that assumes that is not what will happen.

    Please, assume for the sake of argument that witnesses will appear and testify such that the vast majority of Senators are forced to agree that the first article of impeachment is without any factual foundation.

    The question I posed is what are the legal merits of the second article given those hypothetical set of facts?

    1. And Pelosi is almost certain to send the impeachment charges over to the Senate. After all this sound and fury, she has no other rational choice.

      1. who says this is rational?

        and maybe she thinks she can drag it out for year past the election

        the President has been impeached. but he has. I think wrongfully so; but the Democrat House leadership has botched the job from start to finish.

        it’s ridiculous and turning into a farce!

  9. I have a legal question for Prof Turley (or anyone else who knows the answer):

    Lets suppose their is a Senate trial and Trump’s WH aides testify in a convincing manner that aid was not withheld to pressure Ukraine and that Zelensky had been informed he was not expected to do anything and that the ban on military aid would be lifted in Sept as did happen.

    So, Hypothetically the President would be acquitted on the first Article by a large majority of the Senators and the public…

    But what about the second article?
    Would Trump be still guilty of obstruction?

    1. I don’t have the answer you ask for, but I believe it is safe to assume the end-game of any Senate trial will be an acquittal decided entirely along party lines with a sprinkling of pixie dust to project an illusion of legitimacy. Not that the impeachment proceeding was anything different–they could have at least brought out pitchforks and torches to make it a bit more theatrical and interesting–nevertheless during this debacle ordinary people were for a while not in the cross-hairs of politicians looking for an ennemi de jour

    2. Jinn: the president went to court to challenge the judiciary committee’s demands. That is not grounds for impeachment., If the court decided in favor of the judiciary committee and the president refused to comply that might be grounds for impeachment.

      1. the president went to court to challenge the judiciary committee’s demands.
        ___________________________________________
        Really? What court would that be?
        The DOJ has gone to court in the McGahn case, but that is an unrelated to Ukraine issue.

        But your missing the point. If the President blocks the testimony of aides who have exculpatory evidence just so that evidence can be produced later (closer to the election when it is has a much greater advantageous political impact), is that or is it not an abuse of power and an obstruction of Congress?

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