The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Now that President Donald Trump has gotten wind of the fact that he might not yet have been impeached, we should make some things abundantly clear.
At a Turning Point USA event in Florida, the president noted, "In fact, there's no impeachment. Their own lawyer said there's no impeachment. What are we doing here?" The president is taking note of an op-ed by Noah Feldman, one of the Democratic expert witnesses at the House Judiciary impeachment hearings, who argued that the president is not technically impeached until the articles of impeachment are exhibited in the Senate.
The Republican expert witness, Jonathan Turley, has now argued that Feldman is wrong. Laurence Tribe was among those advising the House Democrats to postpone delivering the articles of impeachment to the Senate, but insists that the House has nonetheless already impeached the president.
As I pointed out early on, this debate has no practical consequence for Donald Trump and the operation of the current federal impeachment process.
The American public believes that the president has already been impeached.
The House of Representatives believes that the president has already been impeached. The House Practice Manual specifies that "The respondent in an impeachment proceeding is impeached by the adoption of the House of articles of impeachment." The House resolution adopting the articles of impeachment against the president states that the president "is impeached" and directs that the articles of impeachment "be exhibited to the United States Senate."
This current House is acting in a manner that is consistent with how the House has impeached officers since the early twentieth century, though it is a departure from how the House impeached officers for more than a century after the founding.
Feldman argued that the exhibition of the articles of impeachment to the Senate is an essential procedural component for realizing the House's constitutional power to impeach. On this, he is almost certainly wrong.
In its early impeachments, the House authorized a member to go to the Senate and "impeach" an officer and then waited, sometimes for many weeks, before actually drafting and exhibiting the articles of impeachment in the Senate. The House and Senate thought the officer was impeached when the allegation was leveled at the bar of the Senate, not when the details of the charges were exhibited to the Senate. But neither Tribe nor Turley give much reason to think that the "power of impeachment" is best construed as simply passing a resolution of impeachment, nor do they grapple with the ample evidence that that was not how an "impeachment" was generally construed before the early twentieth century.
If you think that the the "power of impeachment" vested in the House is underspecified regarding the forms that the House has to follow in order to execute an impeachment or that it vests in the House a discretionary authority to specify the forms of an impeachment, then the current House rules are decisive. At least one state court has adopted this view of how the impeachment process works in American constitutions. The process of impeachment might be a matter of constitutional construction, and the longstanding federal construction is that an impeachment occurs at the moment the House votes to adopt an impeachment resolution.
If you think that the "power of impeachment" is fixed regarding the process of impeachment by the original public meaning of the term "impeachment," then the current House rules are probably wrong as a matter of constitutional interpretation. At least one state court has adopted this view of how the impeachment process works in American constitutions and pointed to the evidence that what it means to impeach someone had a fairly determinate meaning under the U.S. Constitution.
Even if the House is behaving inappropriately in regard to the correct constitutional interpretation of the "power of impeachment" vested in the House by the U.S. Constitution, absolutely nothing turns on it.
Under current Senate rules, the Senate will not begin a trial until the articles of impeachment have been exhibited, regardless of whether or not an officer had actually been impeached prior to the House announcing that fact to the Senate. There are no legal or constitutional consequences for the president from having been "impeached," except that he might eventually be subjected to a Senate trial. The House has not yet done what it needs to do to trigger a Senate impeachment trial.
If the House is doing it wrong, there are no consequences to the error. If the House is doing it wrong, there is no venue with the authority to correct the House. By the time of any Senate trial, the House's error (if it is an error) will have been "corrected" by the exhibition of the articles of impeachment. If the House never formally communicates the impeachment to the Senate, then there will be no trial and scholars can have epic footnote battles over whether Trump was ever actually impeached.
If this were an impeachment in a state with a constitution that suspended Trump from office until he such a time that is acquitted in a Senate trial and empowered Mike Pence to take on the duties of acting president at the moment of Trump's impeachment, then this question might matter—and it is quite possible that Trump, and not Pence, should currently be exercising the powers of his office. But Trump is not an officer under such a state constitution. He is an officer under the federal Constitution, and the federal Constitution creates one, and only one, consequence of an impeachment—the authorization of the Senate to conduct a trial to determine whether an officer is to be removed.
I was among those who were skeptical about Feldman's argument when I first saw it, but it was a serious argument that turns out to have been partly true.
Moreover, I continue to believe that actions of the Speaker Nancy Pelosi in taking no steps to communicate the president's impeachment to the Senate provides the House and the Democrats with no additional leverage over how exactly the Senate conducts the trial and tends to undermine the Democrats' claim that the president's immediate impeachment and removal is essential to the public safety. Given that the articles of impeachment have already been adopted and are ready to transmit, withholding those articles from the Senate tends to the paint the entire impeachment process as a partisan political stunt—which is unfortunate.