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FM
Former Member
Politics & Policy

Trump Isn’t Impeached Until the House Tells the Senate

According to the Constitution, impeachment is a process, not a vote. 

Don’t delay.

Don’t delay.

Photographer: Saul Loeb/AFP/Getty Images
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
Read more opinion
 

Now that the House of Representatives has voted to impeach President Donald Trump, what is the constitutional status of the two articles of impeachment? Must they be transmitted to the Senate to trigger a trial, or could they be held back by the House until the Senate decides what the trial will look like, as Speaker Nancy Pelosi has hinted?

 

The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work.

 

But an indefinite delay would pose a serious problem. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.

 
 

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

 

That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.

As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.

Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Failure for the Senate to hold a trial after impeachment would deviate from the Constitution’s clear expectation.

For the House to vote “to impeach” without ever sending the articles of impeachment to the Senate for trial would also deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides.

The relevant constitutional provisions are brief. Article I gives the House “the sole power of impeachment.” And it gives the Senate “the sole power to try all impeachments.” Article II says that the president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high Crimes and Misdemeanors.”

Putting these three different provisions together yields the conclusion that the only way to remove the president while he is in office is if the House impeaches him and the Senate tries and convicts him.

The provisions say nothing about timing. Taken literally, they don’t directly say that articles of impeachment passed by the House must be sent to the Senate. But the framers’ definition of impeachment assumed that impeachment was a process, not just a House vote.

The framers drafted the constitutional provisions against the backdrop of impeachment as it had been practiced in England, where the House of Commons impeached and the House of Lords tried the impeachments. 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.

Strictly speaking, “impeachment” occurred – and occurs -- when the articles of impeachment are presented to the Senate for trial. And at that point, the Senate is obliged by the Constitution to hold a trial.

What would make that trial fair is a separate question, one that deserves its own discussion. But we can say with some confidence that only the Senate is empowered to judge the fairness of its own trial – that’s what the “sole power to try all impeachments” means.

If the House votes to “impeach” but doesn’t send the articles to the Senate or send impeachment managers there to carry its message, it hasn’t directly violated the text of the Constitution. But the House would be acting against the implicit logic of the Constitution’s description of impeachment.

A president who has been genuinely impeached must constitutionally have the opportunity to defend himself before the Senate. That’s built into the constitutional logic of impeachment, which demands a trial before removal.

To be sure, if the House just never sends its articles of impeachment to the Senate, there can be no trial there. That’s what the “sole power to impeach” means. 

But if the House never sends the articles, then Trump could say with strong justification that he was never actually impeached. And that’s probably not the message Congressional Democrats are hoping to send.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Sarah Green Carmichael at sgreencarmic@bloomberg.net

<button class="disqus-v2__tout">COMMENTS 73</button>

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Sean posted:

Trump Isn’t Impeached Until the House Tells the Senate


This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Note carefully --- simply one person's view published in the media.

FM

This fella is a professor of law at Harvard, the same democrat expert trial witness. Ha ha ha !! 

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

Read more opinion

FM
Last edited by Former Member
Sean posted:

Trump Isn’t Impeached Until the House Tells the Senate

By

The framers drafted the constitutional provisions against the backdrop of impeachment as it had been practiced in England, where the House of Commons impeached and the House of Lords tried the impeachments. 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.


From the parliamentary practices of England around the 14th century where the King's ministers were held accountable for their actions.

FM

So you saying that his original testimony as a democrat expert constitutional witness was a fake ? This whole investigation was a hoax. Anyway bai DG, all you tek all you Dhall and stall. Good night. 

FM
Last edited by Former Member
Sean posted:

Trump Isn’t Impeached Until the House Tells the Senate

By

If the House votes to “impeach” but doesn’t send the articles to the Senate or send impeachment managers there to carry its message, it hasn’t directly violated the text of the Constitution.

But the House would be acting against the implicit logic of the Constitution’s description of impeachment.

1. House of Representative does not have to send the decision to the Senate. Gist of the current issues.

2. Implicit logic is simply one person's view/opinion on the matter and does not in any way, shape or form reflect the realities of an issue.

FM
Sean posted:

So you saying that his original testimony as a democrat expert constitutional witness was a fake ?

This whole investigation was a hoax. Anyway bai DG, all you tek all you Dhall and stall. Good night. 

For those who have witnessed the proceedings or followed the news know that Noah Feldman was present and Norman Eisen, an attorney at the hearings, asked him questions.

FM

The framers of the impeachment articles Constitution did not intend that one co-equal branch of the government would become lapdog of the corrupt president that said impeachment was intended to remedy.

FM

Not going to the Senate is like what we seeing with Bisram in Guyana!  Investigation was done, now evidence needs to be presented and the matter adjudicated!  Until then, it’s only an investigation with no verdict!

The Democrats know they have a sand castle!

Baseman
Last edited by Baseman
ksazma posted:

The framers of the impeachment articles Constitution did not intend that one co-equal branch of the government would become lapdog of the corrupt president that said impeachment was intended to remedy.

Listen banna, you don’t make it up as you go along!  That’s the constitutional process!

Actually, you are supporting nothing less than what the PNC is doing in Guyana!  Ayuh stay suh!

Baseman
Sean posted:

So you saying that his original testimony as a democrat expert constitutional witness was a fake ? This whole investigation was a hoax. Anyway bai DG, all you tek all you Dhall and stall. Good night. 

It’s all fake and lies!

Baseman
Baseman posted:

Not going to the Senate is like what we seeing with Bisram in Guyana!  Investigation was done, now evidence needs to be presented and the matter adjudicated!  Until then, it’s only an investigation with no verdict!

The Democrats know they have a sand castle!

Bai, don't conflate political procedures with criminal ones. Had criminal investigations be applied to Trump's actions, he would be charged with a crime every day.

No wise person see a concrete wall and speeds up their car into that wall. Nothing to do with if it is a real car or not but more to do with the result of such a collision. Pelosi is no fool like Trump and the Congressional Republicans. When that gavel came down Wednesday night twice, it signaled that Trump had been impeached on two articles. Nothing further is necessary to confirm that although sending it to the Senate for a vote on his removal from office can solidify it. Pelosi can just put that in a vault and it will not in any way diminish its current status. The reality is that Trump is currently tormented as he wants to see the Senate acquit him but while I don't remember Clinton going on the rooftop yelling that he was acquitted, I have no doubt that Trump will. That is because Trump is an idiot who actually thinks that acquittal means something. Pelosi knows it doesn't but because she knows that Trump is stupid enough to think it does and he is so tormented by its delay, she will delay it as long as she wants because it brings her joy to see his skont being tormented. Trump doesn't deserve anyone's sympathy as he wouldn't even extend it to his own mother if she was standing in his selfish way.

FM
Baseman posted:
ksazma posted:

The framers of the impeachment articles Constitution did not intend that one co-equal branch of the government would become lapdog of the corrupt president that said impeachment was intended to remedy.

Listen banna, you don’t make it up as you go along!  That’s the constitutional process!

Actually, you are supporting nothing less than what the PNC is doing in Guyana!  Ayuh stay suh!

Where does the US Constitution state that the House HAS to send the articles of impeachment to the Senate like the Guyana Constitution state emphatically that the government MUST hold elections WITHIN 90 days from the successful passage of a NCV? I an't stay suh bai. I am a steadfast opposer of the PNC and none of their shiny objects have ever done anything to distract me from their record of wickedness. Ayuh gat fooled by dem shiny objects but all is well now as ayuh have regained ayuh senses. I am sure ayuh will also regain ayuh senses regarding how terrible it is to support deplorable Trump. 

FM
ksazma posted:
Baseman posted:
ksazma posted:

The framers of the impeachment articles Constitution did not intend that one co-equal branch of the government would become lapdog of the corrupt president that said impeachment was intended to remedy.

Listen banna, you don’t make it up as you go along!  That’s the constitutional process!

Actually, you are supporting nothing less than what the PNC is doing in Guyana!  Ayuh stay suh!

Where does the US Constitution state that the House HAS to send the articles of impeachment to the Senate like the Guyana Constitution state emphatically that the government MUST hold elections WITHIN 90 days from the successful passage of a NCV? I an't stay suh bai. I am a steadfast opposer of the PNC and none of their shiny objects have ever done anything to distract me from their record of wickedness. Ayuh gat fooled by dem shiny objects but all is well now as ayuh have regained ayuh senses. I am sure ayuh will also regain ayuh senses regarding how terrible it is to support deplorable Trump. 

The House investigates, the Senate Adjudicate!  It's like the case resting in the DPP office!

Stop behaving like the PNC!

Baseman

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