The job’s not over until the paperwork’s done. Readers may recall Harvard Law professor Noah Feldman’s testimony earlier this month at the House Judiciary Committee, in which Feldman enthusiastically endorsed the impeachment of Donald Trump. “If we cannot impeach a president who abuses his office for personal advantage,” Feldman testified, “we no longer live in a democracy—we live in a monarchy, or we live under a dictatorship.”
Bad news, folks — the monarchy/dictatorship is still on. Despite taking a vote on the two articles of impeachment, Feldman writes, the House still has not impeached Trump:
The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work.
But an indefinite delay would pose a serious problem. Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial.
If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.
That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.
Pundits declared that the vote on Wednesday had put an asterisk on Donald Trump’s presidency. For the moment, at least, the asterisk has an asterisk — at least if one credits Feldman’s theory. In his Bloomberg essay, Feldman argues that the framers of the Constitution envisioned impeachment and removal as a single process, not severable actions.
Unless the House follows through on the process by submitting the impeachment articles to the Senate, they haven’t done anything. Their vote is “to impeach (future tense) Trump,” Feldman argues, a necessary step but not impeachment itself. Failure to follow through, as House Democrats now threaten, would itself be an abuse of constitutional authority:
For the House to vote “to impeach” without ever sending the articles of impeachment to the Senate for trial would also deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides.
It’s an intriguing argument, but it raises a philosophical question. If an impeachment falls in the forest and no media outlets report it, does it still stand? In other words, how many outlets — besides the Bloomberg Opinion online portal which published Feldman’s argument — will report the current defect in Nancy Pelosi’s proclaimed impeachment? How many prime-time anchors on media platforms whose names don’t rhyme with “Schmox Schmews Schmetwork” will acknowledge that the Democrats’ own star witness thinks they’ve spiked the ball on the one-yard line?
And how many voters will care, one way or the other? They’re already starting to lose interest in impeachment. Pelosi’s delaying tactics won’t woo them back, and it might just aggravate those who do still care enough to throw their hands up at all of the nonsensical game-playing.
This will likely get mooted after the January return of Congress anyway. Mitch McConnell isn’t going to get moved by Pelosi’s stunt, especially since the passage of two weeks will make this old news regardless of whether the House submits its articles. Senate Republicans have seen enough to dispense with them without much fanfare. But the longer Pelosi holds on to them, the more it will seem as though Trump never did get legitimately impeached — and not just on the basis of Feldman’s argument, either.
Addendum: Guess who might be calling Feldman as a witness, so to speak?
New per @benstracy: According to two sources involved in the president’s impeachment defense, the White House is considering making the argument that the president is not officially impeached given that Speaker Pelosi has not transmitted the articles of impeachment to the senate.
— Grace Segers (@Grace_Segers) December 20, 2019