- Following the House vote to impeach Donald Trump an opinion article from Harvard Law Professor Noah Feldman has many believing the vote is not valid
- Feldman claims President Trump is not impeached until the House transmits the articles of impeachment to the Senate
- House Speaker Nancy Pelosi has held off on moving forward until after the holidays to ensure the Senate trial is fair
- Fellow Harvard Law Professor Laurence Tribe claims Feldman is wrong about the validity of the House vote to impeach
- The day after the House vote both the White House and the Department of Justice argued that Don McGahn’s testimony is not “relevant to the now-passed articles of impeachment.”
The impeachment of Donald Trump has been anything but smooth for all parties involved. Diehard Trump supporters are fired up more than ever before and defending the president on social media while diehard Democrats are doing the same. The problem is both sides have a large audience that appears to still not understand the first thing about the impeachment process.
Legal Theory Claims President Trump Is Not Impeached
An alarming amount of people currently believe President Trump is not impeached following a Bloomberg opinion article written by Harvard Law Professor Noah Fieldman titled “Trump Isn’t Impeached Until the House Tells the Senate.” In the article, Fieldman argues that “impeachment is a process, not a vote.”
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.Noah Fieldman Via Bloomberg
Adding insult to injury, Republicans have cheered since Fieldman was one of the legal experts Democrats called on to testify against the House Judiciary Committee earlier in the month. Fieldman has advocated for Trump’s impeachment and removal from office.
House Speaker Nancy Pelosi Holds Off On Sending The Articles Of Impeachment
After the House of Representatives voted to impeach Trump, House Speaker Nancy Pelosi placed a hold on sending the articles to the Senate for a trial. While this is not something seen in past impeachment proceedings, the Constitution does not specify a time limit for transferring the articles to the Senate. When Republicans impeached Bill Clinton in 1998 the articles were immediately transferred to the Senate.
Republicans have taken this stall as a sign of fear from the Democratic-led House. In reality, the fear is that Senate Majority Leader Mitch McConnell will not hold a fair trial based on comments he made in the week leading up to the House vote. Pelosi’s decision to hold off on transferring the articles is allegedly to ensure the Senate trial is fair and appropriate “impeachment managers” can be chosen.
After the House vote, typically the House will select members of Congress to be the impeachment managers. These impeachment managers are essentially prosecutors that will argue the case before the Senate. When Clinton was impeached 13 Republican members of the House Judiciary Committee were chosen as managers. Once the impeachment managers are chosen the articles are sent to the Senate to prepare for trial. While the House has total control over the vote to impeach, the Senate has full control over removing a president from office.
Impeachment Managers Will Not be chosen Until At Least January 7
Following Wednesday’s House vote, Pelosi said she would not be choosing impeachment managers or sending the articles “until we see what the process is on the Senate side.” On Thursday the House announced it would not hold any votes regarding a resolution appointing impeachment managers until after the holidays. Which means things will be on hold until January 7 at the earliest.
Pelosi’s decision to wait to move forward with the impeachment process is the foundation for Feldman’s legal theory that Trump is not impeached, which has caused a whirlwind of confused opinions across social media. Feldman’s article has even encouraged the White House to consider challenging the validity of the House vote.
Laurence Tribe Challenges Noah Feldman’s Theory
However, Feldman was not the only expert to voice his opinion on the situation. Fellow Harvard Law Professor Laurence Tribe has given a solid argument against Feldman via his Twitter. While Feldman points to blank areas of the Constitution regarding impeachment, Tribe points out a very direct area of the Constitution. Article 1, Section 2, Clause 5, which reads, “The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.”
@NoahRFeldman is making a clever but wholly mistaken point when he says Trump hasn’t “really” been impeached until the Articles reach the Senate. Under Art. I, Sec. 2, Clause 5, he was impeached on Dec 18, 2019. He will forever remain impeached. Period.Laurence Tribe Via Twitter
.@NoahRFeldman is making a clever but wholly mistaken point when he says Trump hasn’t “really” been impeached until the Articles reach the Senate. Under Art. I, Sec. 2, Clause 5, he was impeached on Dec 18, 2019. He will forever remain impeached. Period. https://t.co/FkwTNG5fiV— Laurence Tribe (@tribelaw) December 20, 2019
The White House And The DOJ Have Acknowledged The Vote To Impeach In The DC Circuit Court Of Appeals
Tribe does not stop there. He points out that the day after the House vote the White House argued to the D.C. Circuit Court of Appeals the subpoena ordering former White House counsel Don McGahn “appear to be moot” now that the president is impeached.
Hey, it just occurred to me the White House can’t argue per @NoahRFeldman that President Trump wasn’t really “impeached” on Dec 18 now that it has told the DC Circuit on Dec 19 that Trump’s impeachment on Dec 18 mooted the McGahn case. There goes that money-raising scam! https://t.co/f8z3QA6F43— Laurence Tribe (@tribelaw) December 20, 2019
The Department of Justice submitted a brief with the D.C. Circuit Court of Appeals arguing the House Judiciary Committee had overstepped its authority by seeking a court order for McGahn to testify. In a footnote to the brief, the DOJ questioned whether McGahn’s testimony is “even relevant to the now-passed articles of impeachment.”
Although the judgment instead should be reversed and the case dismissed, if the Court were to disagree, it should at least leave the stay in place for a reasonable period to allow the Solicitor General to seek appropriate relief from the Supreme Court, especially given the serious question whether McGahn’s testimony is even relevant to the now-passed articles of impeachment.Department of Justice Via The Hill
House Resolution 755
Tribe also points out that House Resolution 755—the resolution adopted by the House to impeach Trump—reads the articles are to be exhibited to the Senate. “It can’t be that, if the Senate just refuses to let the House ‘exhibit’ its impeachment articles, the president won’t have been impeached,” Tribe wrote in a tweet on Saturday.
1. H.Res.755 says DJT “is” impeached and separately adds that the articles are then to be exhibited to the Senate.— Laurence Tribe (@tribelaw) December 21, 2019
2. It can’t be that, if the Senate just refuses to let the House “exhibit” its impeachment articles, the president won’t have been impeached at all! https://t.co/OWpct2mVE1
Marbury V. Madison
Finally, Tribe points to one of the most important cases to ever go before the Supreme Court. The 1803 case of Marbury v. Madison that first declared an act of Congress unconstitutional.
Here’s another analogy: The Supreme Court’s most important case, Marbury v. Madison (1803), treated Wm. Marbury’s commission as legally effective as soon as it was signed and sealed — even though it was never physically delivered.— Laurence Tribe (@tribelaw) December 21, 2019
Fact Versus Theory
So while scholars and social media users continue the debate over the House vote to impeach, there are several facts we can look at. The White House and the DOJ have not only recognized the vote to impeach but have used it as an argument in the D.C. Circuit Court of Appeals.