The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.