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.