Speaker Pelosi’s unconstitutional decision to delay transmission of the articles of impeachment to the Senate in order to gain partisan advantage raises the following question: has President Trump been impeached, or did the House vote merely represent an authorization or intention to impeach — which becomes an actual impeachment only when the articles are transmitted?
This highly technical constitutional issue is being debated by two of my former Harvard Law School colleagues — Professors Laurence Tribe and Noah Feldman — both liberal Democrats who support President Trump’s impeachment.
Tribe believes that Trump has been impeached and that it would be perfectly proper to leave it at that: by declining to transmit the articles of impeachment, the Democrats get a win-win. President Trump remains impeached but he gets no opportunity to be tried and acquitted by the Senate. This cynical, partisan ploy is acceptable to Tribe because it brings about the partisan result he prefers: Trump bears forever the stigma of impeachment without having the opportunity to challenge that stigma by a Senate acquittal. Under the Tribe scenario, the House Democrats get to “obstruct” the Senate and “abuse” their power (to borrow terms from the articles of impeachment).
Feldman disagrees with Tribe, arguing — quite correctly — that impeachment and a removal trial go together. If a president is impeached, he must be tried. Impeachment, in his view, is not merely a vote; it is the first step in a constitutionally mandated two-step process. He goes so far as to say that if the articles of impeachment are not forwarded to the Senate for trial, there has been no valid impeachment.
In my opinion, both of my colleagues are wrong, though Feldman’s approach is more consistent with the structure of the Constitution and the intent of its Framers. I believe that the Senate need not wait for articles of impeachment to be transmitted. Senators are empowered by the constitution to begin a trial now— with or without further action by the House.
Read the rest from Alan M. Dershowitz HERE.
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