The Volokh Conspiracy
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Are we there yet? Probably.
As I noted in an earlier post, because the Democratic leadership has decided to sit on the articles of impeachment that were adopted by the House majority, there is now a bit of a debate on the question of whether President Donald Trump has actually been impeached yet. Not much turns on that question since Trump retains all the powers of the office of the president up until the moment he is convicted in a Senate impeachment trial. But the answer to that question turns out to be less obvious than one might expect.
The answer matters more in the states, where some constitutions provide for the suspension of an officer upon his impeachment. As I noted, a Florida court once thought, at least, that the officer is not impeached until representatives of the lower chamber actually appeared in the upper chamber and levied charges against an officer. The Florida court pointed to English and American practice in support of that interpretation of what it means for the House to impeach someone.
The Florida court was probably right about the federal practice up until that point in 1868. But congressional practice has changed.
When the House contemplated its first impeachment, of Senator William Blount in 1797, there was a fair amount of uncertainty about how it should do it. Legislators looked to the English Parliament to try to figure out how the process worked and did their best to follow along.
Notably, that meant passing a resolution in the House designating someone to walk over to the Senate and impeach Senator Blount. The Senate Journal records that a message had been received from the House to be delivered by Representative Samuel Sitgreaves, to wit:
Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.
The House had commanded Sitgreaves to go to the Senate and impeach Blount. Once that was done, then the Senate could send notice to Blount that he had been impeached and could prepare for trial. The House would draft and exhibit in the Senate articles of impeachment later.
This was the form that the House used to impeach officers all through the nineteenth century. The form was the same when the House impeached judges, a justice, a cabinet member, and a president. In 1904, the Senate sergeant-at-arms announced the presence of a member of the House who
In obedience to the order of the House of Representatives we appear before you, and in the name of the House of Representatives and of all the people of the United States of America we do impeach Charles Swayne, Judge of the district court of the United States for the northern district of Florida, of high crimes and misdemeanors.
The Senate was further informed that "in due time" the House would "exhibit articles of impeachment" and "demand that the Senate shall take order for the appearance of the said Charles Swayne to answer the said impeachment."
That was the last time the House used this form of impeachment. In 1912, the Senate Journal records a rather different message from the House. At that time, the House instructed its chief clerk to send a written message to the Senate which was then entered into the record of the upper chamber. The clerk was "directed to communicate to the Senate"
Resolved, That a message be sent to the Senate to inform them that this House has impeached, for high crimes and misdemeanors, Robert W. Archbald, circuit judge of the United States.
The Senate was merely notified that the House had already impeached Judge Archbald and informed that a set of named managers had been appointed to exhibit before the Senate articles of impeachment. Subsequently the House likewise adopted resolutions specifying that an officer "is impeached," as it did with President Bill Clinton in 1998, and then sent a written message to the Senate informing the upper chamber that an impeachment had occurred and demanding that the Senate convict and remove the officer in question.
Up through 1904, an impeachment was an act performed by the House on the floor of the Senate. Since 1912, the Senate hears about an impeachment in the past tense.
If we take the House practice as decisive, then President Trump could credibly claim to have not yet been impeached and could enjoy that status until the House sends one of its members to the Senate to impeach him—if this were 1868. But since the early twentieth century, the House has uniformly adopted a different practice. It has declared that an officer is impeached at the moment of the House vote and then just sends the paperwork over to the Senate letting them know what has happened.
Sorry, Mr. President, you've been impeached. Probably.