The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some have complained that the sole article of impeachment adopted by the House lumps together the events of January 6 and Trump's phone call to Georgia election officials. They think those should be separate charges, in part because the phone call is clear and direct by itself. It occurs to me that it is not too late for the House to split its article of impeachment, if it were inclined to do so. It is also not too late for the House to add additional articles of impeachment, either because Trump does new things or to address past behavior.
There is a broader question about when exactly the House has impeached someone and what actions are necessary for impeachment. I had a series of posts on this when the House slow-walked the articles during the first impeachment. The key moments of House impeachment are when the House adopts a resolution of impeachment and when the House informs the Senate of an impeachment. Neither of those moments requires actual articles of impeachment. The articles of impeachment can be drafted later and/or separately, and they have been in the past.
The articles of impeachment are needed for the Senate trial. They provide the basis for the Senate to evaluate a specific factual and legal allegation and the basis for the officer to mount a defense against a specific allegation. The Senate ultimately votes on whether to convict an officer on each separate article of impeachment (it is sufficient for conviction and removal that one article get a two-thirds vote in the participating senators). The articles are needed for trial, and the Senate will not proceed with a trial without articles of impeachment alleging specific impeachable offenses.
Moreover, current standing Senate rules direct the Senate process to start rolling when the House notifies the Senate that managers have been appointed and articles are ready to be exhibited. Everything else is just backdrop to triggering a Senate impeachment trial.
All of this suggests that it is not too late for the House to revise how it wants to proceed going into the impeachment trial. It could change the line-up of managers by adding a GOP member to the team -- which it absolutely should. The House made a mistake by pursuing a highly partisan impeachment process the first time around. It should not repeat that mistake this time, especially when there are now Republicans open to impeachment and a more realistic prospect of securing Republican votes to convict in the Senate. An impeachment trial is, in part, a political process. In order to convict, the House needs to win over Republican senators. It will be harder to win votes to convict from Republican senators if the House leans into partisanship in presenting its impeachment case.
The House could draft new articles of impeachment and have a floor vote on them. It could redraft the existing article of impeachment and have a floor vote to adopt the new version. Trump has already been impeached regardless (probably), but that does not mean that the articles of impeachment are written in stone.
The House could hold impeachment hearings and start explaining to the public why some of the anticipated defenses to the impeachment are wrong or start laying out for the public the facts that support an impeachment.
But until the House formally presents the articles of impeachment to the Senate, the process of preparing for an impeachment trial is not done and there is room to make improvements in how it wants to present the case. Not that I expect the House to do any of this. The House has not yet demonstrated that it is very good at putting together a presidential impeachment.