The House of Representatives has impeached the president of the United States. In any other era, this would be a big deal.
Only the current Democratic Party could take that perceived political victory and come out a surefire loser. But House Speaker Nancy Pelosi has managed to do just that, snatching a defeat from the jaws of victory by following the sheer bananas-crazy plan of Harvard Law professor Laurence Tribe.
My last column covered how Tribe’s plan, to impeach but withhold the articles from the Senate, is wrong both politically and legally. Today, however, what I want to show you a second irony: The only way Tribe and Democrats are correct — that they can impeach Donald Trump and delay a trial — is if Donald Trump hasn’t technically been impeached.
Two law professors made this point to Tribe, Pelosi, and Democrats. The first was Noah Feldman, who you may remember as one of the constitutional law scholars who Democrats called to testify before the House Judiciary Committee in support of Trump’s impeachment
Feldman, a Harvard Law professor like Tribe, wrote a column for Bloomberg asserting that Donald Trump can’t be impeached until the articles from the House are delivered to the Senate. The money quote:
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 noise you hear right now is Senate Majority Leader Mitch McConnell rolling around on the floor, gasping for breath from laughing so hard.)
That’s right, Feldman says this gambit by Tribe and Pelosi means that Donald Trump hasn’t legally been impeached.
If you’re confused, perhaps some backstory is in order. Keith Whittington, a professor of politics at Princeton, wrote a series of posts on the history of impeachment, both in the U.S. Congress and across the states. He covered everything, from the very beginnings — the founding of the country — to the present.
According to Whittington, up until 1904, impeachment was the act of the House announcing to the Senate its decision to impeach — in the present tense. As Whittington puts it:
Up through 1904, an impeachment was an act performed by the House on the floor of the Senate. Since 1912, the Senate hears about an impeachment in the past tense.
The change is one of wording. Before 1912, the House would announce to the Senate in the present tense, saying, “We do impeach,” and then laying out the charges. That kind of wording from the House suggests that impeachment wasn’t complete until they had announced it to the Senate, and a trial could commence.
If you’re Laurence Tribe, this is great! It means you can withhold the articles of impeachment from the Senate to prevent a trial from happening.
But while you get what you want, you’ve also caused Donald Trump not to be impeached at all. No articles? No impeachment.
Indeed, Democrats are trying to gain leverage by giving Trump the very thing he wants: acquittal.
(Again — that’s more laughter coming from McConnell’s office.)
From 1912 forward, including in Bill Clinton’s impeachment, the House wording was different. As Whittington notes, the House shifted to past tense in their pronouncements to the Senate. They would say: “This House has impeached…”
In this formulation, it is assumed that the federal officer has already been impeached by the House. The declaration to the Senate is merely a formality; the Senate’s power is already active.
For Laurence Tribe and his Democrat comrades, this means that Donald Trump is — in fact — impeached, but they have no leverage over the Senate. If the announcement from the House is nothing more than a formality — a mere courtesy between chambers — then McConnell doesn’t have to wait on the House; he can play Democrats’ game, pretending that Trump hasn’t been impeached, all while knowing that he can end the charade any time he wants.
Heads, Trump and McConnell win; tails, Democrats lose. It’s a choose your own adventure story where all the endings in the Senate are the same.
For my part, I agree with the second way of reading it. Once the House impeaches, that’s all there is for the House to do, and everything shifts to the Senate. That’s the point I made in my last column, and I’m not alone.
Law professor Johnathan Turley, the legal scholar who Republicans called during the House Judiciary Committee debate over impeachment, agrees with me. He writes:
[T]his use of the articles as a bargaining chip is a departure from tradition and undermines the integrity of the process. It also contradicts the Democratic narrative that the House could not wait because this is a “crime in progress.” I argued that a little more time could greatly enhance this record. Now, having adopted articles of impeachment on a facially incomplete and insufficient record, the House suddenly has ample time to toy with the Senate on the transferral of the articles for trial.
Trump and McConnell hold all the cards — and all the power — in the Senate’s impeachment trial. Democrats are just playing political games, and undermining their pursuit of impeachment by playing them.
Donald Trump may have been impeached, but Democrats are doing everything in their power to make that look like an overly partisan process devoid of substance.
The White House and Republican Senate should stand out of Democrats’ way.