This week the House passed two articles of impeachment against President Donald Trump. So, Trump has been impeached, right? Not so fast.
According to one of the Democrats’ own witnesses, President Trump cannot truly be said to be impeached until the articles of impeachment have been sent to the Senate. After pushing impeachment through the House, Speaker Nancy Pelosi (D-CA) had second thoughts and is currently holding on to the two articles of impeachment.
Feldman: Trump hasn’t been impeached yet
Some say that Pelosi is doing so to obtain favorable conditions for a Senate trial; others, that she and the Democrats are basking in the glory of having finally impeached Trump, knowing that once the matter reaches the Republican-controlled Senate, it is back to square one for the Democrats.
Whatever the case may be, Noah Feldman, the Harvard law professor who served as one of the Democrats’ impeachment witnesses during the recent House impeachment hearings, has called Pelosi’s withholding of the articles of impeachment a “serious problem.” Why?
Feldman explained in a recent op-ed for Bloomberg that “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,” Feldman continued. “If the articles are not transmitted, Trump could legitimately say he wasn’t truly impeached at all.”
Splitting the base
Other Democrats, however, believe that Pelosi is doing the right thing. Fellow Harvard law professor Laurence Tribe, for example, wrote his own article for the Washington Post defending Pelosi’s decision to hold on to the articles of impeachment.
“This option needs to be taken seriously now that Majority Leader Mitch McConnell, (R-KY), has announced his intention to conduct not a real trial but a whitewash, letting the president and his legal team call the shots,” Tribe wrote.
In a subsequent tweet, Tribe further defended Pelosi, arguing that it is perfectly within the rules to hold on to the impeachment articles.
“Senate rules requiring the House to ‘immediately’ present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules,” he wrote. “It’s up to the House when and how to prosecute its case in the Senate.”
Regardless of whether Pelosi is operating within the rules, Feldman believes that withholding the articles may backfire on the Democrats: “If the House never sends the articles, then Trump could say with strong justification that he was never actually impeached. And that’s probably not the message Congressional Democrats are hoping to send.”
Either way, it seems that Trump wins: either we have the scenario described by Feldman, where the articles of impeachment not reaching the Senate vindicate Trump, or impeachment is passed on to the Senate where the Democrats’ partisan efforts to oust a duly elected president are put on national display.