Impeachment

When Is an Officer Impeached?

|The Volokh Conspiracy |

This whole impeachment thing has gotten rather weird. After insisting that the sitting president is an ongoing threat to American democracy who must be removed immediately, the Democratic leadership in the House has now decided to slow walk the articles of impeachment to the Senate because . . . reasons.

This has given rise to the utterly academic question of when exactly a federal officer is "impeached." Literally nothing turns on the answer to this question, except perhaps the president's feelings (he apparently would prefer to be able to say that he has not been impeached, at least for the remainder of the holiday season). His supporters have been quick to declare the president's impeachment to be fake news.

But people are arguing about it. Harvard's Laurence Tribe has argued that the House should withhold the articles of impeachment until the Senate agrees to rules for a trial that Nancy Pelosi likes. Harvard's Noah Feldman has argued that the president has not actually been impeached until the House tells the Senate.

Of course, the media did not wait and immediately declared that the president had been impeached as soon as the House took its vote on the articles of impeachment. The Constitution gives to the House the sole power to impeach, but what exactly does it mean "to impeach." One answer is that the House impeaches when it passes a resolution saying so, and then the House later presents that impeachment to the Senate. Another answer is that the House impeaches when it sends someone to the Senate and announces that an officer is hereby impeached. In the second scenario, the House authorizes someone to go to the Senate and "impeach" an officer, and then the House later presents the specific articles of impeachment that will form the basis of a Senate trial.

Nothing much turns on this distinction in the federal context. It is not clear that the early members of Congress understood the distinction or that the constitutional framers had a very clear idea about what exactly the impeachment power was that they were vesting in the House. The early House sometimes used the language of sending a member to the Senate "to impeach" an officer, but sometimes the House has used the language of sending a member to the Senate "to present" the impeachment. Conventionally, it was the Senate, not the House, that informed the officer that he had been impeached and should prepare for trial, which might suggest that the impeachment did not occur until it had been transmitted to the Senate (and thus the House need only inform the Senate, but not the officer).

But the distinction does sometimes matter in the states, because some state constitutions indicate that an impeached officer is suspended from his office until such a time that he is acquitted in an impeachment trial. If President Trump could no longer exercise the powers of his office at the moment he is impeached, it would become very important to know exactly when that moment has arrived.

I do not know if there is a consensus view in the states on this question, but there is a judicial opinion from Florida that surveys the English and American practice and concludes that an officer is not impeached until the transmission to the senate has occurred. In 1868, the Florida governor asked the Florida court to weigh in on the question of whether the legislature had even lawfully convened, whether the senate was lawfully constituted, and whether he could have been impeached by the sole action of the lower chamber.

One judge concluded:

It thus appears by ample precedent and authority, that an impeachment is not simply the adoption of a resolution declaring that a party be impeached, but that it is the actual announcement and declaration of impeachment by the House through its committee at the bar of the Senate, to the Senate, that it does thereby impeach the officer accused, which proceeding is at once recognized by the Senate.

The Assembly of Florida, on the 6th day of November, 1868, upon the declaration of a citizen, that Governor Reed has been guilty of crimes and misdemeanors, immediately " Resolved, That Harrison Reed, Governor of Florida, be, and he is hereby, impeached of high crimes and misdemeanors in office." This was immediately followed, however, by a resolution that a committee of three be appointed to go to the Senate, and at the bar thereof to impeach Governor Reed, and subsequently a committee reported that they had proceeded to the bar of the Senate and impeached, as they wore directed to do, Harrison Reed, &c.

And so it clearly appears that the Assembly deemed that an impeachment was not effective until an accusation should foe actually declared before the Senate, which body alone is authorized to entertain it.

If that is the federal rule, then President Trump can celebrate a merry Christmas as a not-yet-impeached president.

 

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  1. It is rather funny that one side says this maneuver will make Trump stew while the other says it makes a mockery of the process. Trying to get my head around stewing in mockery, but it’s just not working for me …

    1. Mock turtle soup is the closest I could find.

  2. I’ve been compared to a marijuana smoker, etc., for suggesting that the 9th Amendment applies to impeachment cases, and forbids arbitrary delays in the start of the trial just as it would forbid such arbitrary delays in the start of a small claims court trial.

    But here’s Tribe’s article, invoking the Ninth Amendment to support the idea that the public has the right to observe a “meaningful trial” in an impeachment case:

    “…In 1980, then-Chief Justice Warren E. Burger, a Richard Nixon appointee, wrote that the media and the public have a constitutional right to attend and observe a criminal trial — despite the opposition of the accused, the defense team and even the prosecutor and the trial judge.

    “In Richmond Newspapers v. Virginia — the first case I ever argued in the Supreme Court — the court found that this right inheres in our system of government, a system whose openness is embodied only partly in the First Amendment. The fact that the right to observe trials even where all the parties would prefer a private resolution is nowhere enumerated in the Constitution’s text, the Burger opinion reasoned, is of no moment, given the Ninth Amendment’s directive that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.””

    If the Ninth Amendment, and hence the reserved rights of the people, apply to impeachment cases, then why wouldn’t the right, recognized in Magna Carta and in various state constitutions contemporaneous with the Bill of Rights, to be tried tried without undue delay also apply?

    Who says A must say B.

    1. I wonder if Burger inhaled.

      1. *Sigh*…I wonder if he knew Justice Frankfurter.

        1. I don’t relish these puns, but I mustard up the courage to say…they went to the Mayo Clinic.

          1. I should know better than to tangle with such a talented amateur.

          2. You need to ketch up!

  3. Interesting. Thanks for this.

  4. In other news, recently the 5th person the House of Representatives has sent to the Senate to present the Articles of Impeachment for President Trump has suddenly had a heart attack before being able present the Articles. Despite the impeachment resolution by the House, President Trump remains technically unimpeached.

    When asked to investigate this unusual and statistically unlikely series of events, IG Horowitz noted that there was no direct evidence of political bias in the unexplained deaths.

    (For those who need it. “/s”)

  5. the House has now decided to slow walk the articles of impeachment to the Senate because . . . reasons

    Really? There’s nothing ambiguous or mysterious about it. It’s not like the “reasons” are hidden behind the DNC server in Hunter Biden’s basement. Pelosi is just exercising whatever meager influence she can muster over the Senate before she ships the articles, at which point she’s neutered.

    The only arrow in her quiver may be Trump’s predictably self-destructive resolve to make a Trumpian show of the trial, complete with witnesses, pole dancers and a two drink minimum. It’s almost enough for me to pity Mitch McConnell the urge he must fight every second to rip out his few remaining scraps of hair over having to baby sit an imbecilic toddler with nukes.

    Anyway, Nancy is playing a weak hand, but you can’t blame her for trying. McConnell isn’t about to countenance an actual search for truth out of the goodness of his heart.

    1. “Pelosi is just exercising whatever meager influence she can muster over the Senate before she ships the articles, at which point she’s neutered.”

      And she’s doing it because the rules Democrats approved of for the Clinton impeachment are suddenly “unfair”?

      1. No, because Mitch McConnell and company are laying it on thick.

        “We are working fully with the impeached POTUS” wasn’t the name of the game there by the leader of the Senate. Also, if like there, witnesses are allowed, that would be fine.

        1. Wrong Joey!
          Both the House and the Senate worked with the President (usually thru his lawyers) for both the impeachment process in the House and the trial process in the Senate.

  6. President Trump will be so happy to hear that he wasn’t impeached.

  7. “One answer is that the House impeaches when it passes a resolution saying so”

    Well, the House acts by voting. The House voted. Would it normally take a separate vote to transmit the impeachment? Not so I understand it. Would it take a separate vote to appoint the managers? Maybe, I’m unclear on this point.

    It seems to me that the only action the House might take has already been taken. Impeachment is a power of the House, and Pelosi isn’t the House.

    1. That’s quite a humdinger of a dilemma, or should I say a Schrödinger‌ of a dilemma.

  8. This has given rise to the utterly academic question of when exactly a federal officer is “impeached.”

    Why is this an “utterly academic” question ? It seems to me that it has immediate practical implications. If the officer has been impeached, then the Senate can get on and try him. If he hasn’t, it can’t.

    In the Trumpian context there are obvious political implications. If he has been impeached and the Senate starts the trial asap, then that strengthens Trump’s hand in the various subpoena-y lawsuits – the House’s investigation is over. If he hasn’t been impeached, then the House’s case is stronger in court, because they can claim the investigation is ongoing.

    If he hasn’t been impeached yet, Nancy can drop the actual impeachment at the most convenient moment – maybe to accomodate the Dem primary schedule, or to change the subject if the political news is flowing the wrong way, or at a pinch to clog up the Senate should another SCOTUS vacancy open up.

    1. If the House hangs on to the articles of impeachment for very long I think it will hurt Democrats’ credibility quite a bit. It will become an issue for the primary candidates who will be forced to weigh in on the matter – either disagreeing with Pelosi or coming up with absurd explanations why it makes sense to delay transmission of, or even bury, the articles of impeachment.

      If the House delays by much, Trump will (for a change, somewhat rightfully) point out that if the impeachment was so urgent, the trial would be also. If the Democrats intentionally delayed the trial, it suggests the impeachment had nowhere near the urgency they claimed and that it was just a political stunt. As well, the longer the House delays, the more flexibility it gives McConnell in delaying/dragging out the process in the Senate for the best political effect once the articles of impeachment are transmitted to the Senate. If the Democratic controlled House waits a month, they can’t credibly then complain that the trial is suddenly urgent upon transmittal. As well, the closer the transmittal gets to the election, the more powerful the argument that it was all a political stunt – after all, the less time left in the President’s current term, the less damage his continued occupancy of the office would, presumably, cause so the urgency drops every minute.

      The Constitution gives no control to the House on how the Senate conducts the trial and both Pelosi and McConnell know this. Therefore, Pelosi will get no concessions. If (although I believe Pelosi has ruled out this option) the matter is never transmitted to the Senate, that would reflect very badly on the Democrats because that makes it pretty obvious that it was just a stunt and that they actually fear a trial. Claiming “The deck was stacked in the Senate so we decided not to transmit” would be viewed by all rational people as a ridiculous argument — the composition of the Senate was known to the House all along so why waste the effort and create the distraction of the impeachment except as a political stunt if it was obvious that they would be buried.

      Pelosi really has very little room here. I believe she will transmit the articles of impeachment quite soon and certainly before the January 14 debate.

      1. “If the House hangs on to the articles of impeachment for very long I think it will hurt Democrats’ credibility quite a bit.”

        Sadly, while I think it will hurt the Democrats credibility at the margins, the degree to which it can hurt that credibility is very limited. Or else they’d have no credibility to hurt.

        This process has been a farce from the beginning, the only credibility it has it derives from people disliking Trump, and approving of anything that looks bad for him.

        1. The response of Americans to the House impeachment hearings is that seventy percent, including most Republicans, want to hear the testimony sought by Dems and blocked by Trump (e.g., Mulvaney, Bolton). Asserting that’s a process that derives its credibility from anti-Trump animus is like explaining the 1984 election as a product of Mondale Derangement Syndrome.

          1. The problem is that the House should have gotten the testimony before holding the impeachment vote. The Senate is to hear the evidence from the House and they refused to push in the courts to get their witnesses. Although to be fair, I highly doubt they could break the appropriate usage of Executive Privilege.

  9. I would agree that the house approving articles of impeachment is only an indication that it wants to impeach the president. But this is like a grand jury bring a true bill against a person but if the prosecutor does not follow through with the courts in amounts to nothing. Pelosi or her appointed managers for the trial in the senate is that prosecutor. But maybe McConnell has plans of his own. He may tell the house that on a certain date he will start the trial with the evidence that they have. In this case there would be none since Pelosi has not sent them any.

  10. In the case of the Earl of Danby, the House of Commons impeached, and he was sent to the Tower of London pending the outcome of the trial in the House of Lords. Problem is, King Charles II sent Parliament packing soon after this, so Danby had to cool his heels in the tower for five years (1679-1684). At least there was an excuse for the delay – the House of Lords wasn’t meeting, so there was nowhere to try him. The judges finally sprung him, but they set an enormous bail because they (judges) were worried that when Parliament came back, they’d be mad at anyone who released Danby. It turns out the charges weren’t heard of again IIRC.

  11. Grossi Pelosi finally disclosed the real reason why Trump was impeached. So she could say “nannaie nannaie poo poo still your head in doo doo, you got impeached and you will always be impeached (sticks tongue out)!”

    Time to hold the democrats accountable for their actions. If it is up to People’s Tribunals so be it.

    1. Geez, would you cut it out with the People’s Tribunals?

      1. Justice must be served.

        1. Lunch must be served. You’re in an Arby’s.

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