Trump not really impeached yet?

[Odoreida]

Trump Isn’t Impeached Until the House Tells the Senate
Bloomberg by Noah Feldman
https://www.bloomberg.com/opinion/articles/2019-12-19/trump-impeachment-delay-could-be-serious-problem-for-democrats

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.

...

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.

As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.

...

[redstateblues]

1. So says a Republican

[kentuck]

2. Wasn't he one of the constitutional scholars before the Committee the other day?

This would be like saying, "Donald, we are going to take your phone away if you do not behave yourself"?

[Hav]

11. You are right

He was strongly in favor of impeachment and he was attacked for donations to Democrats if I'm not mistaken.

[Laura PourMeADrink]

8. Why is it so wrong to listen to any opposing opinions?

Are we supposed to just come here and rah-rah? How do you possibly learn a single thing from that? The attempt at lobbying is getting absurd.

[Wounded Bear]

3. The votes are in and entered into the Congressional record...

nice try.

[unblock]

4. They really care exactly how far along the not-getting-removed-anyway process he his...

[Dennis Donovan]

5. Laurence Tribe disagrees:

Link to tweet

[hlthe2b]

7. Keep 'em honest, Prof Tribe...

[dalton99a]

12. +1

[mylightningtoo]

14. I agree with LT. Art 1, sec 2, cl 5 says,

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment."

Art 2, sec3, cl 6, says, "The Senate shall have the sole Power to try all Impeachments."

Plain language: The House Impeaches. The Senate tries Impeachments. The Senate cannot try an impeachment that has not already happened.

[Joe941]

24. I guess logically I can see the argument.

Follow this... If the Senate has sole power to try impeachments then does the Senate have power to try impeachment today? Apparently the Senate does not have that power until the charges are delivered. So either the Senate does not have sole power to try try impeachments (as the constitution states) or impeachment hasn't happened yet?

[mylightningtoo]

31. Interesting

[mylightningtoo]

33. an impeachment not delivered is not quite an impeachment

[COLGATE4]

30. Feldman is playing it too cute by half

He's acting like Turley - take the obvious and then invent a reason why the obvious really isn't obvious. I'm with Tribe on this one.

[Mme. Defarge]

38. I wish this platform had "Likes" for replies.

👍

[Farmer-Rick]

6. He's usually pretty good but on this issue he really has it wrong.

It's on the record...the votes are counted...it can't be undone.

[InAbLuEsTaTe]

9. What a pile of horseshit... no legal analysis whatsoever.

Bernie/Elizabeth or Elizabeth/Bernie 2020!!
Either way, they're stronger together & can't be bought!!
Jump on the Bernie Bandwagon & join the revolution!!

[stonecutter357]

10. Donald Trump is a racist pig !

[Fullduplexxx]

13. Complete bullsht

[Gidney N Cloyd]

15. I think Feldman is reading a LOT into the constitution wording on impeachment.

Last edited Fri Dec 20, 2019, 12:11 PM - Edit history (1)

The relevant constitutional provisions are brief. Article I gives the House “the sole power of impeachment.” And it gives the Senate “the sole power to try all impeachments.” Article II says that the president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high Crimes and Misdemeanors.”

Putting these three different provisions together yields the conclusion that the only way to remove the president while he is in office is if the House impeaches him and the Senate tries and convicts him.

<snip>

If the House votes to “impeach” but doesn’t send the articles to the Senate or send impeachment managers there to carry its message, it hasn’t directly violated the text of the Constitution. But the House would be acting against the implicit logic of the Constitution’s description of impeachment.

The way I read it, it seems pretty plain that transmitting the articles of impeachment between the house and senate is just a housekeeping issue, something that happens between each body doing its main job in the process.

[Joe941]

16. What is the language in the constitution?

Post it here. It shouldnt be too tough to see it in the constitution if he is correct.

[mylightningtoo]

20. see post 14

[Kaleva]

17. Freepers are arguing about this.

Was there yesterday lurking and some are agreeing with the article and others aren't. I believe Trump himself tweeted that he was impeached.

[GoCubsGo]

18. Denial. It's not just a river in Egypt.

[Quemado]

19. The ultimate in gaslighting.

Link to tweet

[Efilroft Sul]

21. The articles will be sent to the Senate at a time of Speaker Pelosi's choosing.

But first, she'd like McConnell to do us a favor...

[pwb]

22. This article is only opinion. Trump is Impeached.

The senate acquits or convicts at trial. He is impeached right now and forever

[StarfishSaver]

23. He's been impeached. It's just that the impeachment is not yet ready to be transmitted to the Senate

This is like a grand jury returning an indictment. Once a defendant is indicted, he's indicted. But there are some procedural steps that must be taken before the case is sent to a judge for trial. That's where we are now.

But he's impeached and always will be.

[ScratchCat]

25. This is almost as ridiculous

as when Republican idiots tried to make an argument that Obama wasn't "really" sworn-in in January of 2009.

[OliverQ]

26. Lawrence Tribe says Feldman is wrong.

The Constitution does not say the House must transmit Articles to the Senate at a certain time to make Impeachment complete. It gives the House the sole authority to conduct Impeachment as it sees fit. Once the final vote on Articles took place and the majority was reached, Trump was impeached.

[mylightningtoo]

27. But Who Knows How Trump's Supreme Court would Decide this issue??????

[tritsofme]

37. There's nothing for them to decide. This is an argument about semantics.

[ananda]

28. Wrong. MF45 is officially impeached.

It just hasn't gone to trial yet.

Good.

[C_U_L8R]

29. Desperate to put toothpaste back in the tube.

Yeah... whatever, Republicans. Keep telling yourselves bullshit stories so you can sleep at night. You fools.

[gratuitous]

34. I was thinking "grasping at straws"

But that works, too.

[Voltaire2]

32. They declared war on normalcy a long time ago.

We are just starting to fight back.

So like fork that shirt.

[Odoreida]

35. C'mon folks ...

So Trump isn't quite impeached yet?

I have no problem admitting that.

He will be and nothing he can do to stop it now.

[Caliman73]

36. I agree with your point.

That is what I thought when I started reading this thread. He maybe technically isn't, but for all intents and purposes, he is. Pelosi is not going to sit on the articles forever. She knows that there is a window. If anyone knows it, it is Nancy Pelosi. She has not really made a mistake in this process yet. I trust that she will do the correct thing and this opinion by Feldman will just be the tasty little morsel for discussion on a Friday morning. Forgotten soon.

[Bradical79]

39. Makes some sense

But it's only one opinion from one scholar. I'm sure he'll be arguing his opinion with some colleagues for awhile. It's more a historical technicality to argue over, as I think we all know it will inevitably be sent to the Senate at some point. Historically, do we log it as the moment the vote is finalized?

[onenote]

40. Argument with no basis in the Constitution or any court decision

In support of his position, Feldman argues that Trump hasn't been impeached yet "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."

And what does he point to in support of this assertion? Nothing. Nada. Zilch. Does he point to a provision in the Constitution conditioning the House's action in voting to impeach someone on the House sending its approved articles to the Senate with House managers standing up in the Senate? Of course not. There is no such language. Indeed, there is no reference to "managers" anywhere in the Constitution. Nor is there any court case that Feldman could cite that would support his assertion. Which explains why he doesn't offer any citations to any court cases.

His argument is nonsense. The House has the sole power of impeachment. How they exercise is left to the House. The fact that they've chosen, historically, to appoint managers and have a formal process of delivering them to the Senate is not Constitutionally required. Presumably, if the Senate chose to do so, it could change its rules to provide that once the House has adopted articles of impeachment and they've been printed in the Congressional record, the Senate can and will take "judicial notice" of those articles and will request that the House advise the Senate as to how it intends to prosecute the impeachment trial.