Pictured: Speaker Nancy Pelosi presides over the House of Representatives vote on the second article of impeachment of President Donald Trump, on December 18. (Photo by Chip Somodevilla/Getty Images)
Speaker Pelosi’s unconstitutional decision to delay transmission of the articles of impeachment to the Senate in order to gain partisan advantage raises the following question: has President Trump been impeached, or did the House vote merely represent an authorization or intention to impeach — which becomes an actual impeachment only when the articles are transmitted?
This highly technical constitutional issue is being debated by two of my former Harvard Law School colleagues — Professors Laurence Tribe and Noah Feldman — both liberal Democrats who support President Trump’s impeachment.
Tribe believes that Trump has been impeached and that it would be perfectly proper to leave it at that: by declining to transmit the articles of impeachment, the Democrats get a win-win. President Trump remains impeached but he gets no opportunity to be tried and acquitted by the Senate. This cynical, partisan ploy is acceptable to Tribe because it brings about the partisan result he prefers: Trump bears forever the stigma of impeachment without having the opportunity to challenge that stigma by a Senate acquittal. Under the Tribe scenario, the House Democrats get to “obstruct” the Senate and “abuse” their power (to borrow terms from the articles of impeachment).
Feldman disagrees with Tribe, arguing — quite correctly — that impeachment and a removal trial go together. If a president is impeached, he must be tried. Impeachment, in his view, is not merely a vote; it is the first step in a constitutionally mandated two-step process. He goes so far as to say that if the articles of impeachment are not forwarded to the Senate for trial, there has been no valid impeachment.
In my opinion, both of my colleagues are wrong, though Feldman’s approach is more consistent with the structure of the Constitution and the intent of its Framers. I believe that the Senate need not wait for articles of impeachment to be transmitted. Senators are empowered by the constitution to begin a trial now— with or without further action by the House.
Just as the House has the “sole power of impeachment,” so too the Senate has the “sole power to try all impeachments.” The Senate can make its own rules (as long as they are consistent with the constitution) and establish its own timetables.
The only possible rejoinder to this constitutional verity is the argument put forward by Feldman that the House has not yet concluded the process of impeachment, and so the Senate has no jurisdiction to proceed to trial. What follows from that argument is the conclusion — utterly unacceptable to Tribe — that President Trump has not been impeached and if the articles are never transmitted he will not go down in history as the third president to be impeached, because the House never completed the necessary process by sending the articles to the senate.
Tribe and the Democratic House majority, led by Speaker Pelosi, want to have their constitutional cake and eat it too: they want Trump impeached but not acquitted. Sorry, but the Constitution does not permit that partisan, result-oriented ploy. Either Trump has been impeached and is entitled to a Senate trial; or he has not been impeached and is entitled to a clean slate.
My own view is that in the public eye, President Trump has been impeached by a partisan vote and he is now entitled to be acquitted, even if the Senate vote is as partisan as the House vote. The partisans who voted his impeachment along party lines in the House, have no principled argument against a party-line acquittal. The Democrats devised the partisan rules of engagement in the House. They can’t suddenly demand a change in those rules because they are a minority in the Senate.
So there are only two constitutionally viable alternatives: either Pelosi must announce that Trump has not been impeached; or the Senate must initiate a trial. Preserving the status quo indefinitely — Trump remaining impeached without having a trial —is unconstitutional and should not be tolerated by the American people.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the forthcoming book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse publishing, November 2019.
A shorter and somewhat different version of this op-ed appeared in the Wall Street Journal.
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