House Speaker Nancy Pelosi is playing games with the impeachment of a President she and her party loathe, as she stalls the delivery of the partisan articles of impeachment they voted on yesterday to the Senate.
Last night, NBC News reported about Pelosi’s excoriation of Senate Majority Leader Mitch McConnell, R-Ky., for indicating that he would work in coordination with the White House counsel during the impending trial. Pelosi called it the jury foreman being in “cahoots” with the defendant’s lawyer. She said the House has to determine who the impeachment managers are going to be for the trial.
“We’re not sending [the articles] tonight because it’s difficult to determine who the managers would be until we see the arena in which we will be participating,” said Pelosi, who was joined by six chairs of the House committees who lead the impeachment inquiry.
“So far we haven’t seen anything that looks fair to us, so hopefully it will be fairer and when we see what that is, we’ll send our managers.”
“I don’t feel like I’m being impeached,” Trump told reporters last night. Once again, it looks like Trump is correct
Today, Harvard Law Professor Noah Feldman wrote a column for Bloomberg News today, claiming that President Trump is not, in fact, impeached until the House tells the Senate.
-Now that the House of Representatives has voted to impeach President Donald Trump, what is the constitutional status of the two articles of impeachment? Must they be transmitted to the Senate to trigger a trial, or could they be held back by the House until the Senate decides what the trial will look like, as Speaker Nancy Pelosi has hinted?
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.
That’s because “impeachment” under the Constitution means the House sending its approved articles of impeachment 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.
Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Failure for the Senate to hold a trial after impeachment would deviate from the Constitution’s clear expectation.
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.
A president who has been genuinely impeached must constitutionally have the opportunity to defend himself before the Senate. That’s built into the constitutional logic of impeachment, which demands a trial before removal.
To be sure, if the House just never sends its articles of impeachment to the Senate, there can be no trial there. That’s what the “sole power to impeach” means.
But 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.
Republicans slammed any proposed delay as the most egregious example of political manipulation seeping into what should be a serious constitutional exercise. Trump called Democrats the “Do Nothing Party” and retweeted South Carolina Senator Lindsey Graham accusing Democrats of “constitutional extortion” and asking “what is driving this crazy idea?”
McConnell said the suggestion that the House might not immediately send the impeachment articles to the Senate is a sign that the House may be “second-guessing whether they even want to go to trial.” Speaking on the Senate floor Thursday, McConnell described the House impeachment process as “shoddy” work and said the proposal to delay the articles is “really comical.”