Democrats Debate Whether Trump Has Been Impeached

by Alan M. Dershowitz
December 24, 2019 at 5:00 am

https://www.gatestoneinstitute.org/15331/democrats-impeachment-question

Under Laurence Tribe's scenario, the House Democrats get to "obstruct" the Senate and "abuse" their power (to borrow terms from the articles of impeachment).
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. Just as the House has the "sole power of impeachment," so too the Senate has the "sole power to try all impeachments."
Tribe and the Democratic House majority, led by Speaker Pelosi, want to have their constitutional cake and eat it too: they want Trump impeached but not acquitted. Sorry, but the Constitution does not permit that partisan, result-oriented ploy. Either Trump has been impeached and is entitled to a Senate trial; or he has not been impeached and is entitled to a clean slate.
So there are only two constitutionally viable alternatives: either Pelosi must announce that Trump has not been impeached; or the Senate must initiate a trial. Preserving the status quo indefinitely — Trump remaining impeached without having a trial — is unconstitutional and should not be tolerated by the American people.

Pictured: Speaker Nancy Pelosi presides over the House of Representatives vote on the second article of impeachment of President Donald Trump, on December 18. (Photo by Chip Somodevilla/Getty Images)

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.

Just as the House has the "sole power of impeachment," so too the Senate has the "sole power to try all impeachments." The Senate can make its own rules (as long as they are consistent with the constitution) and establish its own timetables.

The only possible rejoinder to this constitutional verity is the argument put forward by Feldman that the House has not yet concluded the process of impeachment, and so the Senate has no jurisdiction to proceed to trial. What follows from that argument is the conclusion — utterly unacceptable to Tribe — that President Trump has not been impeached and if the articles are never transmitted he will not go down in history as the third president to be impeached, because the House never completed the necessary process by sending the articles to the senate.

Tribe and the Democratic House majority, led by Speaker Pelosi, want to have their constitutional cake and eat it too: they want Trump impeached but not acquitted. Sorry, but the Constitution does not permit that partisan, result-oriented ploy. Either Trump has been impeached and is entitled to a Senate trial; or he has not been impeached and is entitled to a clean slate.

My own view is that in the public eye, President Trump has been impeached by a partisan vote and he is now entitled to be acquitted, even if the Senate vote is as partisan as the House vote. The partisans who voted his impeachment along party lines in the House, have no principled argument against a party-line acquittal. The Democrats devised the partisan rules of engagement in the House. They can't suddenly demand a change in those rules because they are a minority in the Senate.

So there are only two constitutionally viable alternatives: either Pelosi must announce that Trump has not been impeached; or the Senate must initiate a trial. Preserving the status quo indefinitely — Trump remaining impeached without having a trial —is unconstitutional and should not be tolerated by the American people.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the forthcoming book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse publishing, November 2019.

A shorter and somewhat different version of this op-ed appeared in the Wall Street Journal.

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Comment on this item

41 Reader Comments

Peter913 • Dec 27, 2019 at 11:39

IMHO, the Senate needs to pass a Senate rule on impeachment trials. And it should read: The House has 30 days to render their articles of impeachment to the Senate otherwise such an impeachment case is null and void not requiring a Senate trial.

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jeffrey buckshorn • Dec 27, 2019 at 08:21

WE the PEOPLE also want a SCOTUS to make a law so they have to stop this "sham trial bullcrap" and wasting $45M USD every time they (the dems) don't get their way!!

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Ed in Texas

jeffrey buckshorn • Dec 27, 2019 at 19:21

Oh, I don't know. I think we've had way more than enough of Masters in Black Robes making laws, a function the Constitution reserves for the Legislature.

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Robert Pilot • Dec 26, 2019 at 18:35

One more example of why I'm not a Democrat -- although given a chance, Reps would probably also act badly. Ms. Nancy, either you and your buddies pass this onto the Senate or get off the potty -- you are all looking like petulant little children.

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T W Huning • Dec 26, 2019 at 12:55

The Senate also has the right to judge whether or not the two charges constitute high crimes and misdemeanors.

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Solomon2 • Dec 26, 2019 at 11:55

A vote to impeach which is not followed by a trial - is that not the equivalent of a bill of attainder, which is forbidden under the Constitution? (Article 1, Section 9)

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Tom Welsh • Dec 26, 2019 at 10:53

It seems to me that there is also a distinct parallel with the non-case of Julian Assange. What the House has done is analogous to indicting a person without offering a criminal trial.

Assange has been treated even worse. He was never even indicted by the Swedish authorities - merely wanted for questioning. In a manoeuvre strikingly similar to Ms Pelosi's, the Swedish police refrained from asking Assange for an interview for several weeks while he remained available in Stockholm. Almost as soon as he gave up and flew to London, they started to ask for his extradition, implying that he was a fugitive from justice.

Laws and systems of justice cannot work unless they are staffed by honest human beings who sincerely believe in them.

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dkjack • Dec 25, 2019 at 18:59

The problem is that the Constitution doesn't speak to the House actually bringing an impeachment to the Senate. Pelosi knows this loophole and is exploiting it. The Framers didn't anticipate Congress would be so stupid, so his needs to be fixed by statute.

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Phil Davis • Dec 25, 2019 at 18:58

I can see Trump sue Pelosi and The House for withholding due process. Getting this to SCOTUS, who would surely settle in Trump's favor, would be a giant slap to the Dems.

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The Box of Articles • Dec 25, 2019 at 14:14

If you look into the Senate rules existing, it states the impeachment articles are transmitted to the Senate. If they aren't and here they are not; then the Senate need not act as there's nothing to act upon.

The tradition is restricted to the actual physical transmittal of the articles in a box brought before the dais of the Senate for presentation and then to be acted.

Nothing more, nothing less.

While the Constitution is ambiguous on this point, Feldman is correct in his reading while yours is bent to what you'd like to see in how the Senate may act.

Let's be clear that Senate McConnell is the leader who will decide and act as he sees fit on the Senate rules and the Constitutional aspects.

There's no doubt he will. That is, when the hyper partisan rigged game playing by Pelosi and the anti-American squad is done.

Which won't be long now.

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Dave Magill

The Box of Articles • Dec 27, 2019 at 11:10

Sen McConnell, though, could change the rules of the Senate with a 51-vote majority to permit the trial.

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William J Downey • Dec 25, 2019 at 12:02

The House took a vote, albeit partisan, to impeach the President of the United States. The Senate under the Constitution must conduct a trial on those Articles. The Senate as established under the Constitution and has and may set its own rules. The fact that the Speaker has chosen to withhold the Articles in order to have control over the trial is unConstitutional. Even if the trial is decided on a partisan basis a not guilty verdict remains Constitutional.

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Kephir Yusef • Dec 25, 2019 at 09:08

Correct me if I'm wrong, but isn't it a fact that the Dems voted to impeach Trump but haven't done yet?
I suggest that they never will. All they really care about is the "appearance of guilt" so they can create civil unrest.

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Dave Levin • Dec 25, 2019 at 03:38

Pelosi must be Impeached immediately and without further time.

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Ernst • Dec 25, 2019 at 01:38

Trump should wear his impeachment as a badge of honor. Smug, self-important Pelosi and her band of renegade extreme leftist Democrats could find no other way to even impede Trump in his work to keep the campaign promises that America elected him to accomplish. Trump is winning!

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Robert Coutts • Dec 24, 2019 at 19:24

The House laid the charge, the Senate has the duty to try the case. If the Senate obstructs that duty, they throw the Constitution out the window and the republic ceases to exist ... and it would be the Senate that killed it.

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Bill Houston • Dec 24, 2019 at 16:08

Either the U.S. Constitution means what it says or it's a waste of ink. It seems to me that the Democrats are more interested in changing the rules than in playing by them. In sports that would be totally unacceptable, unless the spectators wished to change the game they had come to see. Can you imagine a baseball game changing into a game of cricket in the middle of a final series?

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Bisley • Dec 24, 2019 at 15:33

I'd have to disagree with Professor Dershowitz on this one. It seems to me that what we have here is analogous to some jerk local prosecutor threatening to put someone on trial, but without filing any case with a court. How can there be any case when nothing has been submitted to the authority that would adjudicate it?

The Senate can't act on what they see on Twitter, or in the fake news -- if they haven't been officially notified, there is no impeachment for them to deal with. Pelosi can't be forced to notify the Senate, but no impeachment exists unless she does. The House can certainly vote its disapproval and censure of Trump (or anyone else), but impeachment is a part of the removal process specified by the Constitution, and can't be separated from a submission of charges to the Senate to be judged.

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neversink

Bisley • Dec 24, 2019 at 16:49

But the Trump impeachment articles and the vote are posted in the Congressional Record. Therefore, the Senate might be able to proceed....

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Bisley

neversink • Dec 25, 2019 at 08:23

As I understand it, impeachment is the prerogative of the House, and if they want a case for removal presented to the Senate, they will present it. Whatever they may have done up to this point is meaningless, should they decide not to present charges to the Senate-- much the same as a team in a prosecutors office trying to build a case, and then deciding what they have isn't good enough to go to trial with. Impeachment is the presentation of charges, not preparation and/or acceptance of them by the House. The Senate has no role to play unless they are officially presented with charges against the president.

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Gabriela Garver

Bisley • Dec 25, 2019 at 20:17

The local prosecutor indicted the defendant is a more apt comparison. That defendant is entitled to due process and a speedy trial. McConnell should go ahead without Pelosi's transmittal IF the customary gap is passed (which from my research is around 2 weeks).

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Bisley

Gabriela Garver • Dec 26, 2019 at 10:34

The prosecutor claims to have indicted someone, without actually doing it by completing the process. Unless charges are presented to some authority to be resolved there is no official charge, only unsubstantiated allegations (which is all that's ever existed) by a dishonest prosecutor. It's not unheard of for people to be publicly accused of all sorts of crimes, but never brought to trial -- and that's what we have here (so far). There is no legal recourse except, maybe, a defamation suit, and that's impossible in this instance since members of Congress can't be held responsible for anything they say in Congress.

This is never going to be resolved in a way that you, or I would approve of. Regardless of what anyone involved in this does, or says -- whether or not there is a trial, acquittal, or something else -- the Democrat politicians and their allies in the news business are going to continue to insist Trump is impeached and guilty. If this is stopped where it is, or presented to the Senate (resulting in acquittal, or dismissal), what's presented to the public by the Democrats and their news-flacks will be the same. If Trump hasn't been removed, it will be because of lying, corruption and partisan politics on the part of Republicans -- and that is what the public will hear from the overwhelming majority of the news business. The Democrats will never admit defeat, and the news industry will back them to the limit.

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Gabriela Garver

Bisley • Dec 31, 2019 at 11:10

I think Michael Moore is correct: Trump's support hasn't budged an inch from the impeachment vote. Similarly, those that hated him before still do. So it will have nil effect on the outcome of the election IMO. Still, we don't want the legal precedent to stand of the House voting to impeach and then "pocketing" the impeachment articles. The Senate needs to either go ahead (per Dershowitz's advice) whether or not the articles are presented to the Senate, or the Senate leader needs to declare the impeachment null and void because the President was not afforded due process, a speedy trial, nor were the historical norms for time of transmittal to the Senate kept (which, I'd say, should be one month at an absolute limit).

From my read, articles of impeachment were usually presented in about 2 weeks. So give Pelosi 2 extra weeks, but that's it. And then tell her well in advance "either fish or cut bait". Then let the House sue the Senate or do whatever they want. The MSM can scream and yell all they want; who believes them any more? Not me nor anyone with an IQ above 100. I think SCOTUS would side with the Senate in either action (trial without formal transmission OR a declaration of null and void after warning and legal precedents passed).

As one editorial writer said (recently, and I can't remember her name), the President is not above the law, but neither is he below the law. We still have the norms and precedents, and to accuse a person formally and never give him his day in court is a dangerous (and I think unconstitutional) precedent that we ought not let stand for the good of the country and future political health of Presidents and Congresses.

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Stephen • Dec 24, 2019 at 13:51

This message has not got through to media such as CNN who I have renamed GTN Get Trump Network and bang on that the Constitution allows the House to Impeach full stop and gleefully hold up banner headlines TRUMP IMPEACHED
It is only logical in the way they devised it that the framers of the Constitution intended that this would be a process to be concluded by the full Congress. Professor Dershowitz rightfully points out that for a blatently partisan Dems controlled House to demand impartiality by the Senate is a travesty of justice and fairness, and hypocritical in the extreme.

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Plato • Dec 24, 2019 at 13:22

Brilliant.

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Sammi Tsoutsoulis • Dec 24, 2019 at 13:17

When it's all said and done, these do nothings in the Democratic party need to accept the fact their actions now will accompany the voters to the polls in 2020.
63 million voters had their say in 2016, just imagine how many will have their say in 2020.
American wake up, the World is literally watching. Shalom,.
Happy Chanukah !!!✡️

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oldguyincolorado • Dec 24, 2019 at 13:16

So a trial should take place with each side being able to present "fact based" witnesses and documents, each subject to subpoena and subject to a trial courts decision as to admissibility? Should orders to produce and depositions be allowed? Should valid objections to production be allowed based solely upon state secret claims of privilege and not upon any claims of executive or other types of non-state secret exemptions which are used to prevent all of the "facts" from being presented? If so, let's get the pre-trial phase started in the Senate. Let Trump be witness Number 1. I can't wait.

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Stan Lee • Dec 24, 2019 at 12:52

Democrats should not even be concerned. They needed a reason for collecting their federal paychecks,since they were doing nothing to justify their federal incomes. Before Pelosi & Schumer drove their wrecked political party into a miscarriage of justice, the Democrat Party connivers were collecting federal paychecks for doing nothing but imagining the U.S.A. without President Trump and attempting every type of lie and distortion of truth to hang around his neck. By now, they're so inured to failure that they cannot live without it! For the sake of the exalted American nation, I hope the Leftists will continue their burdening overreach from reality until they are no more, and these United States of America can take itself into a future as founded by our Founding Fathers, and adhering the U.S. Constitution which honors those who treasure their God-given freedoms and rights.

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A • Dec 24, 2019 at 12:12

From Mr. Dershowitz's write-up: "What follows from that argument is the conclusion — utterly unacceptable to Tribe — that President Trump has not been impeached and if the articles are never transmitted he will not go down in history as the third president to be impeached."

While his argument is correct in theory, it is incorrect in the real world. In the real world, the country views President Trump as having been impeached. Period. Mitch must get off his rear end ASAP and schedule the trial, and proceed with same, ASAP. Again in theory, I'd think that the Senate would be justified in saying that the Dems haven't fulfilled their impeachment "duty," and thus could vote that there would be no trial. In the real world, too many of the population would view this avoiding trial as a technicality. And more would thus assume the President to be guilty.

Bottom line: Get the trial going, whether Pelosi sends over the articles of impeachment or not.

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Peter Rosenfelt • Dec 24, 2019 at 11:25

As presiding judge at an impeachment trial in the Senate, the Chief Justice should step in and resolve pre-trial issues re witness and document testimony. Roberts is acting like a potted plant.

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Christopher Hollinger

Peter Rosenfelt • Dec 24, 2019 at 17:16

That's not how the process works. The Senate sets the rules, not the Chief Justice. The Chief Justice is just there to act as the Judge.

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Terence Gain • Dec 24, 2019 at 11:14

Hunter Biden was paid between $50,000 and $83,000 per month by Ukrainian oil company Burisma for his expertise in being Joe Biden's son while his father was Obama's point man on Ukraine. The notion that this obvious corruption (graft and Influence Peddling) should not be investigated is preposterous. Running for political office does not provide immunity from investigation and prosecution. The impeachment of President Trump is a complete sham as is obvious from the second article of impeachment which impeaches him for merely exercising his constitutional rights.

The claim of Democrat lawyers that Trump must be impeached because he in effect asked Ukraine to interfere in an American election is disingenuous. These same lawyers had no issue when Hillary Clinton paid a British intelligence agent - who used Russian sources- to interfere in the 2016 election. Lawyers such as Pamela Karlan are not opposed to open borders nor the Saudi investment in American Universities and mosques. These Democrats welcome foreign interference in American culture and elections, so long as it is for their benefit.

And the claim that President Trump endangered national security by delaying aid for 55 days is completely bogus. One need only consider that the people making this bizarre accusation had no problem at all with Obama refusing to give any military aid to Ukraine after it was attacked by Russia.

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Lewis Bishop, Jr. • Dec 24, 2019 at 10:42

Simple: No one needs to argue this point. It is like someone saying a person owes him money so he writes a bill of charge, an invoice. Then if the he decides to keep the bill in his desk drawer rather than to deliver it to the person who is to pay it, then the person is NOT yet charged with anything. The invoice is rendered meaningless--end of story.

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Bob • Dec 24, 2019 at 09:03

Does the President of the United States NOT have a 6th amendment right to speedy trial? The whole process is a witch hunt. The president has done nothing but his duty to "see to it that all laws are faithfully executed"as mandated by Article II of the US Constitution. I do not believe he has in any way shape or form committed an impeachable offense.

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Oren Wysocki • Dec 24, 2019 at 08:59

Democrats will say Trump is impeached whenever they feel like it, and MSNBC will back them up.

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James Atkinson

Oren Wysocki • Dec 27, 2019 at 10:28

The far left democrats are wagging Nancy Pelosi's tail. The Impeachment Articles have not been sent to the Senate for the following; the far left know they are sitting on a loser when it gets to the Senate and will likely result in their losing the House majority, secondly in their unconstitutional minds they think by not sending the Senate the Impeachment they have an open Impeachment investigation to which they can throw up charges ad-nausea in hopes of finding one of those "High Crimes and Misdemeanors". The Senate must act now!

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Michael Maguire • Dec 24, 2019 at 07:40

The Democrats in America and the Labour Party in Britain are two huge stains on politics today. I feel disgusted that their behaviour is tolerated in any Western Democracy. Developing world behaviour practiced by Developed world politicians ought to carry very serious consequences.

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Peter Egan • Dec 24, 2019 at 07:35

Surely President Trump should be able to petition the Supreme Court to order Congress to transmit the Articles of Impeachment to the Senate and in the absence of which to declare that there has been no valid impeachment? (I speak as a retired solicitor in England and not conversant with US Constitutional law).

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Plato

Peter Egan • Dec 24, 2019 at 13:31

Nice point!

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Beverly Hemmann • Dec 24, 2019 at 07:13

Can the Democrats in the House be sued by the President or other interested parties for Abuse of Power and Obstruction of Justice if they do not send the Articles of Impeachment to the Senate?

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Cary Tamler • Dec 24, 2019 at 05:47

There is a third option: The Senate goes on the record and declares that there is no impeachment since the articles were not transmitted by the House in accordance with the Constitution.

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