The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
When is an Officer Impeached? V
The House and Senate are making unforced errors in laying the groundwork for an impeachment trial
During the first impeachment I wrote a series of posts trying to answer the question of when exactly an officer is impeached. (Just to address a common terminological confusion, recall that an "impeachment" is what the House does, and an "impeachment trial" is what the Senate does.) The question seemed relevant because House Speaker Nancy Pelosi decided to sit on the articles of impeachment adopted by the House and delay delivering them to the Senate. But as I emphasized then, the question of the official timing of the impeachment was entirely academic since there is no constitutional or legal consequence to an impeachment except that the Senate may then hold an impeachment trial (unlike in some state systems where the officer is immediately suspended from his office at the moment of impeachment). The delay did have political and rhetorical consequences, however, undermining the House's claim that the president was a clear and present danger to the republic who needed to be removed immediately.
Pelosi is doing it again. The House has voted to impeach and has approved an article of impeachment, and Pelosi has even named a team of managers to prosecute the impeachment case. But Pelosi has once again decided to sit on the articles and to not formally notify the Senate that the president has been impeached. This time it might have more substantial consequences.
On the upside, the delay does provide an opportunity for the House to improve its case. The House could adopt additional articles of impeachment or rewrite the one it has already improved. The Speaker could appoint additional managers or remove some who have already been named. The House can spend the time preparing for its prosecution, time that might be particularly valuable since the impeachment itself proceeded on an expedited schedule without hearings.
On the downside, the House's slow process has weakened its own rhetorical framing of the need for impeachment. I thought the House should have impeached Trump immediately after the riot, before the electoral count even resumed. If the president posed an immediate danger to the republic and the Congress, then there was no time to waste. Instead, the House chose to waste time -- an entire week -- to impeach a president who only had two weeks left in his natural term of office. If you believed that Trump was fomenting an insurrection from the White House, this is not how you would react. There are still good reasons to impeachment and convict the president, but the House needs to take care in how it explains the case in order to deemphasize the immediate threat and emphasize the long-term principle.
More significantly, the House risks handing the Trump defense team unnecessary legal arguments. It will already be difficult to persuade two-thirds of the senators that a former president can be put on trial and convicted of high crimes and misdemeanors. I believe that the House can impeach a former president and that the Senate can try a former president, but the textual case is stronger for the latter than the former.
The House has the "sole power to impeach." That power very clearly includes the authority to impeach a sitting president. The Senate has the "sole power to try all impeachments." If a sitting president is impeached, the Senate has clear textual authority to conduct a trial on those impeachment charges. The Senate has proceeded to trial before when an officer has resigned after his impeachment (in the case of Secretary of War William Belknap in 1876). Even if you have doubts about whether the House can impeach a former officer, you should have far fewer doubts about whether the Senate can try an impeachment involving an officer who has left office after his impeachment.
But if you are of the view that the Senate can try all constitutionally valid impeachments, even when the officer has left the office, but an impeachment is only constitutionally valid when the impeached individual is a current officer, then the timing of the impeachment matters. Some of what Judge Luttig has written suggests that he is of this view. This might be the one circumstance in which, under the federal constitution, the question of when an officer is impeached has actual constitutional consequences.
If you take that possibility seriously -- and some senators might -- then it matters a great deal when exactly the House used its impeachment power to formally impeach Trump such that it can validly authorize the Senate to hold an impeachment trial. As I observed in the earlier posts, the traditional understanding of the impeachment power in the United States up until the early twentieth century was that the "impeachment" occurs when an authorized member of the lower chamber appears on the floor of the upper chamber and "impeaches" an officer by formally leveling an accusation and demanding a trial. Starting in 1912, the House has taken the view that the "impeachment" occurs when the House votes to adopt a resolution of impeachment. Under the modern view, Trump has already been impeached, and so there should be no question about whether the Senate can start a trial whenever the House gets around to exhibiting articles of impeachment. Under the traditional view, Trump has not yet been impeached and will not be impeached until the House formally notifies the Senate.
If Pelosi waits until after the inauguration of Joe Biden as president to formally notify the Senate of the impeachment and exhibit the articles of impeachment, she will have handed Trump's defense team a jurisdictional argument that they did not need to have. At least some senators might be willing to adopt the argument that the original meaning of the power to impeach required the House to have acted sooner and that the House has no constitutional authority to redefine this power to impeach and the process necessary to realize an impeachment. This issue would not normally matter, but it might matter in this peculiar circumstance.
Pelosi can still avoid this unforced error by taking the simple expedient of formally notifying the Senate that the president has been impeached before the president leaves office at noon on January 20, 2021. This could be done even without exhibiting the actual articles of impeachment, and it is the exhibiting of the articles of impeachment that triggers the beginning of the Senate trial process under current Senate rules. Why hand argumentative ammunition to Trump's defense team if you do not have to do so?
