Pelosi Considering Delay In Sending Articles Of Impeachment To The Senate

House Speaker Nancy Pelosi is suggesting she might hold back on sending the Articles of Impeachment to the Senate. This seems like a bad idea.

Last night after the House of Representatives voted to impeach the President, Speaker of the House Nancy Pelosi suggested that she may seek to use parliamentary moves to delay the trial in the Senate until Senate Republicans make concessions in how the trial will be conducted:

Speaker Nancy Pelosi refused to commit Wednesday to delivering articles of impeachment to the Senate, citing concerns about an unfair trial on removing President Donald Trump from office.

Senior Democratic aides said the House was “very unlikely” to take the steps necessary to send the articles to the Senate until at least early January, a delay of at least two weeks and perhaps longer.

“So far we haven’t seen anything that looks fair to us,” Pelosi told reporters at a news conference just moments after the House charged Trump with abuse of power and obstructing congressional investigations. “That would’ve been our intention, but we’ll see what happens over there.”

Pelosi’s comments, which echo suggestions raised by other Democrats throughout the day, inject new uncertainty into the impeachment timetable and send the House and Senate lurching toward a potential institutional crisis.

Though the House adopted two articles of impeachment charging Trump with abuse of power and obstruction of congressional investigations, it must pass a second resolution formally naming impeachment managers to present the case in the Senate. That second vehicle triggers the official transmission of articles to the Senate.

By delaying passage of that resolution, Pelosi and top Democrats retain control of the articles and hope to put pressure on Senate Majority Leader Mitch McConnell to adopt trial procedures they consider bipartisan.

More from The Washington Post:

Moments after a historic vote to impeach President Trump, House Speaker Nancy Pelosi said the House could at least temporarily withhold the articles from the Senate — a decision, she suggested, that could depend on how the other chamber chooses to conduct its trial on Trump’s removal.

“We cannot name managers until we see what the process is on the Senate side,” she said, referring to the House “managers” who present the case for removal to the Senate. “So far we haven’t seen anything that looks fair to us. So hopefully it will be fair. And when we see what that is, we’ll send our managers.”

\The comments came as a group of House Democrats pushed Pelosi (D-Calif.) and other leaders to withhold the articles — a notion that has gained traction among some on the political left as a way of potentially forcing Senate Majority Leader Mitch McConnell (R-Ky.) to conduct a trial on more favorable terms for Democrats. And if no agreement is reached, some have argued, the trial could be delayed indefinitely, denying Trump an expected acquittal.

Pelosi would not answer questions about whether she was entertaining an indefinite hold on the articles — one that could prevent a trial from taking place before the next presidential election.

“We’re not having that discussion,” she said, adding that it “would have been our intention” to send the articles forthwith, “but we’ll see what happens over there.”

She continued: “We’re not sending it tonight because it’s difficult to determine who the managers would be until we see the arena in which we will be participating.”

The remarks injected an unexpected wrinkle into a tightly choreographed day, in which a series of procedural votes and hours of floor debate paved the way for climactic votes after 8 p.m. on Trump’s impeachment — the third in U.S. history.

The notion has been most prominently advocated by Laurence H. Tribe, a Harvard Law School professor who has advised the House Judiciary Committee on the impeachment process. In a recent Washington Post op-ed, he wrote that “the public has a right to observe a meaningful trial rather than simply learn that the result is a verdict of not guilty.”

As a matter of procedure, it is clear that the Senate trial cannot begin until the House of Representatives names its Impeachment Managers and sends the Articles of Impeachment to the Senate. Because of this, Pelosi at least has the law and procedure on her side since the rules governing impeachment in the Senate, which were used in 1868 and 1999 and which Senate Majority Leader McConnell has said he will abide by, specifically provide that the Senate trial cannot begin until the Articles are sent to the Senate and the House Impeachment Managers identified.

However, while this idea of withholding the Articles of Impeachment appears to be something that the House of Representatives can do, I am not sure that it is something that they should do. Both during the debate yesterday and during the hearings that took place in November and this month, Democrats pushed back on the idea that they were moving too fast on impeachment and that they should let the voters decide in 2020. In response, the Democrats argued that what the President did constituted attempting to influence the next election. Holding back the Articles of Impeachment, for an indefinite period or shorter seems as though the Democrats are walking back that argument and making impeachment seem less pressing and less important than it obviously is.

Additionally, it’s unclear how such a move would play with the American public as a whole. As I noted earlier this week, as it is the public is essentially evenly divided on the impeachment and removal question. Holding the Articles of Impeachment back, or otherwise being seen as trying to play partisan games then the public could end up backing the Senate. Finally, since we already know that the Senate trial is going to be a show trial anyway, the idea of trying to hold back the Articles of Impeachment to influence how the trial will be conducted seems like a waste of time.

FILED UNDER: Congress, Donald Trump, Impeachment, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. drj says:

    Holding the Articles of Impeachment back, or otherwise being seen as trying to play partisan games then the public could end up backing the Senate.

    Perhaps. But Pelosi’s move allows Democrats to rightfully highlight that the fix is in – using McConnell’s own words against him – and that acquittal by the Senate is meaningless.

    Moreover, she is making the argument that whatever will be the verdict in the the Senate, the impeachment vote by the House is in no way discredited by it.

    Pelosi is not bad at politics, is what I am saying.

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  2. gVOR08 says:

    The country is split on removal, but something like 70% of the public say they support a fair trial with witnesses. I’m not sure how much stock to put in this, it seems somewhat complicated for a poll question. But every time McConnell expresses contempt for the process and promises to peremptorily acquit another Kentuckian realizes he’s an asshat. And the poll gives Pelosi some leverage.

    Yes, the Ds say they feel some urgency as Trump may continue to sin (for which see Giuliani’s recent trip), but it’s hard to see how that concern is served by a perfunctory dismissal in the Senate, as McConnell seems to want, or an extended show trial, as Trump seems to think he can get. And if the Ds can manage to get Mulvaney et al to testify under threat of perjury charges, the game changes.

  3. JKB says:

    Perhaps inadvertently, Pelosi is sucking the oxygen away from the Democrats who are, did you remember, having a debate tonight. And delaying sending the articles to the Senate just means the trial will overrun the first Democrat primaries.

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  4. Kathy says:

    My take is Moscow Mitch wants to issue his acquittal without bothering with even a show trial, and Pelosi is insisting they at least go through the motions.

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  5. Scott says:

    I think testimony under oath from direct witnesses (Bolton, Giuilani, Mulvaney, and even Trump himself is essential. Threaten more House hearings if the Senate doesn’t agree. Call McConnell’s bluff on how essential work is not getting accomplished. Offer to hold back the Articles until Budgets, NAFTA 2.0, election security, and hundreds of other bills are disposed of in documented up or down votes. Unfortunately, Schumer is no McConnell in knife fights. Too bad Harry Reid is not still there.

  6. Paul L. says:

    This is pretty much a lie

    Because of this, Pelosi at least has the law and procedure on her side since the rules governing impeachment in the Senate, which were used in 1868 and 1999 and which Senate Majority Leader McConnell has said he will abide by, specifically provide that the Senate trial cannot begin until the Articles are sent to the Senate and the House Impeachment Managers identified.

    https://twitter.com/JazzShaw/status/1207645355162193922

    “The Senate shall have the sole power to try all impeachments.” There has been an impeachment. They can start the trial this morning if they wish and dare the Democrats to take it to court and try to stop them.

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  7. Teve says:

    “What is historic here, then, is not Trump’s crimes or the act of impeaching him. It is the disturbing willingness of nearly every elected Republican in defending him when most of them know well that he is guilty and morally bankrupt. It isn’t the president’s extortion scheme that shocks the conscience so much as Senate Leader Mitch McConnell’s bemused enabling of him in exchange for a few judges and tax cuts designed to forestall the consequences of wedding the party to a dying coalition of bigots, fat cats, and cranks.”

    -David Atkins

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  8. Daryl and his brother Darryl says:

    Leningrad Lindsey is melting down over this.
    Calling the holding up of the Articles “Constitutional extortion” and a “breathtaking violation of the Constitution.”
    Pretty funny that he isn’t concerned with Trumps violation of the Constitution, only Pelosi’s.
    So yeah…this is definitely the way to play this.

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  9. Kit says:

    Democrats were right to impeach given the gravity of the situation, but given the political reality, all the rest is politics. Republicans in the Senate think they have a winning hand in cavalierly dismissing the charges. That gives Democrats another card to play. So how to play it? Not one person remaining on the Right is open to reality, so fuck them. The trick becomes not letting the Senate keep Warren and Sanders tied up in their duties, and not shooting the party in the foot.

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  10. sam says:

    @Paul L.:

    “This is pretty much a lie.”

    [T]he rules governing impeachment in the Senate, which were used in 1868 and 1999 and which Senate Majority Leader McConnell has said he will abide by, specifically provide that the Senate trial cannot begin until the Articles are sent to the Senate and the House Impeachment Managers identified.

    Those are the Senate rules governing impeachment trials, established by the Senate under its “sole power to try impeachments.” The Senate can change the rules, but the Senate Majority Leader has said the rules as set out will be followed.

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  11. Kathy says:

    Foundation myths can be either origin stories of a people, or the foundation on which a people’s culture and politics are built; and they’re not mutually exclusive. Nor are they limited to one myth only. A simple example is Rome’s founding myth of Romulus and Remus, continuing on with the myth f the Seven Kings of Rome. Best of all, such myths can provide explanations for common questions: The Legions, Romulus did it, say; or the temples, Numa, Rome’s second king, did it.

    Today myths are as rife as ever, if not more so. The “lost cause” down South is a founding myth that justifies the aggrieved feelings southern whites have been nursing for generations, as well as the institutional racism prevalent for much of the XX Century.

    A myth need not be self-consistent, though it helps if it is, and it need no even be plausible or require confirming evidence. We can see this very clearly with the latest myths such as “deep state” and “fake news.” There are others, and the Democrats have some of their own as well, though far less detached from reality, but these two explain, to us, why Trump will not be removed by the Senate, and why few in his base, or the GOP, favor even his impeachment.

    Whatever factual news of his crimes, is “fake news.” This is so even if it’s reported in Fox News. All the testimony in open hearings before the House committees, are all lies from the “deep state.” truth is what Dennison says it is, even when you know it’s a lie.

    The difference between now and ancient times, is that ancient myths were more earnest attempts at finding explanations, and included some distorted, half-remembered history (much of Rome’s early records were lost when Gauls invaded and sacked the city early in its history). Today they serve more as justifications for malfeasance or dominance.

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  12. gVOR08 says:

    @sam: L may be right. There are established rules and McConnell has said he’ll abide by them. But McConnell may have lied. The only thing constraining McConnell is public perception. The public would see violating rules he agreed to as an egregious act, akin to, say, denying a black president his right to nominate Justices. We can see how doing that crushed the Majority Leader who did it.

    Moscow Mitch is constrained by little but his next reelection. He’s roundly disliked in KY, but that’s never stopped him from being able to buy reelection before.

  13. sam says:

    @gVOR08:

    I’m pretty sure Paul was calling Doug a liar.

  14. Pylon says:

    @Paul L.:

    It is in no way a lie. It is stated that the Senate made rules in previous impeachments. That’s true. It is stated that McConnell said he’ll abide by them. Also true.

    What may turn out to be a lie is what McConnell said. But that’s what liars do – they lie.

  15. Gustopher says:

    I’m waiting for McConnell to say that “sole power to try impeachments” is not an obligation to try impeachments. It seems like the next obvious step in the tit-for-tat escalation, but also a step too far.

    As far as Pelosi’s maneuvering… sure, why not? Why bother going through a show trial that will be used to falsely suggest exoneration, when you can leave a cloud over someone’s head?

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  16. @Doug:

    Additionally, it’s unclear how such a move would play with the American public as a whole.

    I can tell you the answer to that one: it will make practically no difference whatsoever. Just look at the trend lines for both presidential approval and for impeachment and the answer is quite clear.

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  17. Daryl and his brother Darryl says:

    It’s pretty fuqing funny that Cult45 thinks that it’s unfair that they aren’t able to hold an unfair trial.
    It makes their feelings hurt.
    It doesn’t matter if they have their rigged trial or not. He will forever be Impeached.
    Trump3.

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  18. BTW: my opinion on this maneuver is still forming. My initial thought was that it was a bad idea, but if it gives some amount of leverage over the Senate’s behavior (which I am not convinced it will( then I may be persuadable it is not a bad idea.

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  19. Paul L. says:

    @sam:

    That’s true. It is stated that McConnell said he’ll abide by them. Also true.

    Mitch McConnell Is Fully Prepared to Shut Democrats Out of Impeachment

    The Senate majority leader told reporters Tuesday that if he can’t strike a compromise with Chuck Schumer on the rules governing Trump’s trial, Republicans will just figure it out themselves.

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  20. Daryl and his brother Darryl says:

    Worth noting; Trump3 is the first cast member from Home Alone 2 to be impeached.

  21. mattbernius says:

    @Steven L. Taylor:

    My initial thought was that it was a bad idea, but if it gives some amount of leverage over the Senate’s behavior (which I am not convinced it will( then I may be persuadable it is not a bad idea.

    That pretty much reflects mine as well.

    The only reason I’m holding off judgement is that, in general, Pelosi has done a solid job of managing this process. So she’s earned the benefit of the doubt.

  22. Mister Bluster says:

    Mitch McConnell Is Fully Prepared to Shut Democrats Out of Impeachment

    President Puke has already been impeached you dimwit.

  23. @mattbernius: The more I think about it, the more sense it makes. It is an attempt to leverage some influence over the process. It may not work, but trying makes sense.

  24. Jay L Gischer says:

    I guess they can’t react this fast, but I thought that in response to McConnell’s statements, they should have delayed the vote, and tabled the motion until the court case with Bolton, et al was resolved.

    Bolton’s testimony is very important, and I’m sure he wants to be seen to be making every effort to avoid testifying.

  25. just nutha says:

    @Steven L. Taylor: My take is that the move is probably inconsequential. Then again, I’m the guy who still DGAF about Nixon’s “crimes,” so I may be too jaded to have an important opinion.

  26. Michael Reynolds says:

    @Steven L. Taylor:
    Like you I was dubious. But Pelosi’s a smart pol. The only way this delay hurts is if we imagine that GOP whining will change anyone’s mind. It won’t. That’s not how politics works in the age of Trump. We are no longer in the era of changing hearts and minds, we’re dealing with a cult of personality, so we’re down to raw power. Thugs have a way of not leaving you any alternative.

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  27. just nutha says:

    And if the Ds can manage to get Mulvaney et al to testify under threat of perjury charges, the game changes.

    Only to the extent that there are genuinely undecided and movable people in the electorate. I place the percentage of such people at 0 to -3%, but see the above disclaimer.

  28. Michael Reynolds says:

    @just nutha:
    0-3% is about right IMO. The trick now is not to change their minds – if they were vulnerable to facts they wouldn’t be Trumpies to start with – but to discourage them. A Cultie who stays home is a Democratic vote. I have a sneaking suspicion that despite the polls, there will be a small but significant number who have just enough sense to realize that if he loses re-election they can play the Glorious Lost Cause Pity Party game forever, whereas if he gets another four years it’s all very likely to turn to shit.

  29. Neil Hudelson says:

    @JKB: Yes, we know, concern troll is very concerned.

  30. gVOR08 says:

    @Steven L. Taylor: You’re probably right that this won’t change the minds of voters, but this morning the NYT Editorial Board published a column that gives me some slight hope. It starts off with the usual bothsides…years…partisanship…blah blah blah. But they then say the evidence is clear, Trump needed to be impeached, he should be removed, and, and those leading his defense in congress should be voted out of office. Maybe, just maybe, this has gotten to the point that our supposedly liberal MSM and the very establishment FTFNYT are actually willing to say it’s not bothsides, it’s Republicans.

  31. Daryl and his brother Darryl says:

    You really have to laugh, though, when some old white guy from Georgia gets up on the Floor of the House…and says that this is worse than the Crucifixion of Christ.
    Or the other old white guy from PA that got up and said it’s like Pearl Harbor. Reminder; we lost 2,400 Americans, 300 airplanes, and 20 vessels at Pearl Harbor.
    Those sharks were well-jumped!!!

  32. Scott says:

    @Daryl and his brother Darryl: Yep, and next week we celebrate the birth of Trump.

  33. Kathy says:

    @Daryl and his brother Darryl:

    There’s an easy explanation for their regrettable attitude:

    Kathy’s Immediacy Principle: It always seems worse when you see it happening.
    Corollary: It’s even worse when it happen to you.

    And a solution:

    Kathy’s Perspective Principle: Get some F***g Perspective.

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  34. DrDaveT says:

    @Paul L.:

    Mitch McConnell Is Fully Prepared to Shut Democrats Out of Impeachment

    Having the GOP make it even more glaringly clear to history that they don’t care what the facts are here might be the best outcome the Dems can hope for at this point. The Gandhi tactic of getting your opponents to reveal what they are really willing to do might apply.

  35. Just Another Ex-Republican says:

    Eh. I wouldn’t trust any agreement Mitch makes anyway. That said, delaying things past Christmas and New Year’s is a good idea to me. Stops McConnell from airbrushing the whole thing when no one is paying attention. But I don’t think it would be smart to hold things up much longer. The fix is in anyway (as we’ve always known)–better to let the R’s put the farce on camera and start hammering them about fair process for a change.

  36. RalfW says:

    The reactions from Mitch and Lindsey are just way too precious. These two men (and I use the term in as honorless and merely descriptive as possible) have the unmitigated gall to lecture on proper process and honoring norms?
    Bwahahahahaha.

  37. RalfW says:

    To your broader argument, Doug, I would say that it is entirely appropriate for Ms Pelosi to let Mitch know that a witnessless, brief and substance-free ‘trial’ is just not acceptable. The argument to the GOP that Dems are ‘moving too fast’ should very much be responded to with “OK, let’s have direct material witnesses, let’s unpack the constitutional arguments with recognized subject matter experts, and let’s deliberate as a jury of Trump’s peers.”
    Using the available leverage for that purpose is well worth whatever small downside risk there may be.

  38. James Knauer says:

    The delay can be short enough not to waste time, while causing the GOP significant pain over the holidays as people gather under snowy eaves to ask why Mitch McConnell is afraid to hold a trial if the President is so innocent? The window for the Speaker closes somewhere around January 7, 2020.

    It appears a handful of vulnerable Senators will control any voting on procedure and witnesses, particularly if the Senate cannot agree on rules beforehand. Romney. Gardner. Collins. Tillis. McSally. Maybe Alexander, if the rhetoric goes sour. The GOP risks situations where they vote against the ruling of the chair, who, if I’m not mistaken, is still a Republican.

    The GOP does not want to cast any removal votes at all in an election year. Their rhetoric contains absolutely no defense of the President’s actions, and everyone is watching, as you must escape to Pluto to avoid it. There is a certain segment of the U.S. that operates herd-like in moments of paradigm shift, such as the regionalization of what used to be a grand old party.

    The U.S. Senate has some serious soul-searching to do.

  39. Paul L. says:

    I am going with this narrative that Trump not impeached in 2019.
    “We wish you a Mueller Christmas and Impeachment next year.

    Trump isn’t impeached til House transmits to Senate, per a Harvard Law professor who was a witness for House Democrats.

    “If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all,“ Noah R Feldman writes.

    But WashPo will add it to the list of false or misleading statements that progressives call “lies”

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  40. Jax says:

    @Paul L.: Your denial runs strong. It’s not going to change what’s in the history books as of last night.

  41. An Interested Party says:

    Your denial runs strong.

    I wonder about how Trump supporters think…what kind of illogic, nonsense, and lies must they tell themselves to completely deny reality…I understand how Trump’s Republican toadies and lickspittles want to keep their jobs and power so they kiss his ass on a regular basis…but those who actually support him…wow…

  42. Jax says:

    @An Interested Party: I will admit to thinking less of my “Christian” trumpie friends after today. I do not understand how they can profess to be Christian and support Trump. It’s like oil and water.

  43. @RalfW:

    I get your argument but given that it’s clear that the Republicans don’t care if a trial ever takes place I am not sure it matters to him when trial takes place.

    It’s also unclear how the public is going to perceive this. As I said, one of the strongest arguments that Democrats have in favor of impeachment rather than waiting for the election is that impeachment was imperitive given the fact that the underlying charges went to an effort to undermine the integrity of the election, clearly an important issue. As it is the country is 50-50 on impeachment and removal, holding back the Articles could cause them to believe things aren’t as imperative as Democrats claim.

    On the other hand, it’s clear that Trump is desperate for the vindication of a trial in the Senate. So it’s possible this move could cause him to put pressure on the Senate GOP to concede on Democratic demands for witnesses and other pre-trial issues.

  44. al Ameda says:

    This is a strategic game of chicken.
    (1) Trump says he wants a show trial; call Schiff, the Whistleblower, Hunter Biden, et all to be interrogated by Republicans. I think he’s bullsh**ing everyone, just words, all empty calories for his base.
    (2) McConnell wants to move on without a show trial; with no pretense that Republicans will consider facts. I don’t think Mitch or many Republicans want Bolton or Mulvaney up there testifying, or they would have pushed those guys out there earlier.
    (3) Pelosi wants to make McConnell uncomfortable. Some pressure. Put it on the record that Democrats are not going to rollover and backdown. I’m sure Pelosi knows that this is a situation that you have to be careful of what you wish for. Who knows what Bolton or Mulvaney would say?

    My inclination is to let Republicans be all they can be:
    McConnell and Graham are Trump’s O.J. Jury, let them mock the Impeachment with their Soviet Style vote to acquit. Trump’s base will never believe there are facts that incriminate Trump. Wrap it up, move on.

  45. Nickel Front says:

    It seems like Trump hasn’t actually been impeached.

    There is no impeachment until the House actually sends the articles to the Senate.

    According to a Harvard law professor who was a Dem witness for impeachment.

    https://www.bloomberg.com/opinion/articles/2019-12-19/trump-impeachment-delay-could-be-serious-problem-for-democrats

    Which makes this withholding move all the more interesting.

  46. @Nickel Front: @Paul L.: @Nickel Front:

    This is a fun talking point, but I would note that Article I, Section 2 states “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

    If the House has the “sole” power, it makes no sense to state that the impeachment is only real once the other branch is involved.

    The bottom line is that the House has voted to impeach the president.

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  47. mattbernius says:

    @Steven L. Taylor:
    From a practical point, you’re right. From a legal theory point, it seems like there is room for some wiggle:

    Noah Feldman, Harvard Law:

    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.

    If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

    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.

    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.

    https://www.bloomberg.com/opinion/articles/2019-12-19/trump-impeachment-delay-could-be-serious-problem-for-democrats

    At the end of the day, I expect the process to continue after recess (and this is largely a bit of trolling). In the meantime, we exist in a kind of ritual liminal space (in the Victor Turner sense). There’s little doubt of what’s going to happen, the only question is when.

    Of course, its always super fun to watch people who typically make very blunt arguments get really interested in relatively obscure Constitutional interpretation in order to pick their particular nits.

  48. Paul L. says:

    The bottom line is that the House has voted to impeach the president.

    Let us Whataboutism that “true” statement.
    The bottom line is a jury has voted to convict Ted Stevens of felonies.

  49. @mattbernius: I would argue that in a process that is barely used, this is a matter of interpretation, and not law, per se.

    I would agree if the House never transmitted the articles to the Senate, there would be an issue, but this notion that he hasn’t been impeached strikes me as plain silly.

  50. @Paul L.: It is truly sad that you think you are being clever or making any kind of useful point in your little postings.

  51. mattbernius says:

    @Steven L. Taylor:

    I would agree if the House never transmitted the articles to the Senate, there would be an issue, but this notion that he hasn’t been impeached strikes me as plain silly.

    Agreed on both points. Or rather it’s a theoretical exercise more than anything else — the type of thing that academics like to argue about for mental exercise that has no real bearing on real world outcomes.

  52. To be honest, holding back the Articles until January isn’t going to have much impact on timing unless it extends far beyond the start of January. Nothing was going to happen in the Senate over the holiday in any case. The House and Senate will be back in session January 6th and we’ll see where we are then.

  53. Nickel Front says:

    @Steven L. Taylor:

    I would agree if the House never transmitted the articles to the Senate, there would be an issue, but this notion that he hasn’t been impeached strikes me as plain silly.

    Those 2 comments seem to contradict each other.

    How long of a delay would you consider “not silly”? A week? A month? At what point do you concede that impeachment never happened?

    If the Constitutional requirement for being impeached is that the House submits the articles to the Senate, then President Trump has indeed not been impeached as of today.

    I don’t think you can rationally sit here and say he’s been impeached right now, and then come back 6 months later and say “ok, maybe not.”

    The impeachment requirement is either submission to the Senate, or it’s not.

  54. mattbernius says:

    @Doug Mataconis:
    Bingo — though it was a good bit of trolling.

  55. @Nickel Front: A fair question.

    I would argue that the problem would only accrue if the House impeached and then refused to transmit the articles of impeachment. I think that if they utterly refused to send over the articles one could raise a question of the validity of the impeachment process itself.

    Even then, I am not sure it would be appropriate to say that he wasn’t impeached.

    The House has the sole power to impeach (that statement in the actual text). If the Senate doesn’t get the articles, there is no trial, but the vote on impeachment still took place.

    So, my position would be that he is impeached no matter what the House does going forward, but that if they utterly refused to send the articles over that this would lead to justifiable criticism of their actions and taint the entire process.

    And to be clear: if they don’t submit the articles, that would be a problem.

    I still think it silly to argue that the fact that they did immediately transmit the articles means that he isn’t impeached.

  56. al Ameda says:

    @Paul L.: yes Pontius Pilate treated Jesus better than Democrats treated Ted a Stevens. I’m sure that if Ted Stevens was alive he would have preferred a self-crucifixion

  57. Nickel Front says:

    @Steven L. Taylor:

    I still think it silly to argue that the fact that they did [not] immediately transmit the articles means that he isn’t impeached.

    Assuming you missed a NOT in there.

    Aside from the “silly” terminology, mostly fair enough I guess.

    But I find it “silly” to say he’s definitely been impeached while at the same time acknowledging that there are significant issues if the House never submits the articles to the Senate.

    If this were quibbling over a small delay due to a weekend, logistics, etc., I’d totally agree with you… He’s been impeached. But that’s not the case here. Refusal to submit is a conscious, calculated decision by Pelosi.

    Her decision is what’s raising this question to begin with.

    Delaying also undercuts the whole Imminent Threat To Our Democracy argument as well, further questioning the legitimacy of this whole process.

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  58. @Nickel Front: Yes, thanks, a missing “not” indeed.

    And I clarified. I think he is impeached not matter what. But I agree refusal to transmit would be a problem. But it is a hypothetical problem, as that isn’t what is happening.

    If this were quibbling over a small delay due to a weekend, logistics, etc., I’d totally agree with you… He’s been impeached.

    But that means you agree that the voting is what causes the impeaching, not the arrival of the articles in the Senate. Either the vote is the impeachment or the arrival of the passed articles is the Senate is impeachment–regardless of the reason or length of the delay.

    Delaying also undercuts the whole Imminent Threat To Our Democracy argument as well, further questioning the legitimacy of this whole process.

    This might hold water if the trial was going to proceed immediately upon transmittal, but owing to the time of year, that is not going to be the case.

    And to want to negotiate the terms of the trial, even if the leverage is small, does not undercut the argument in the least.

  59. mattbernius says:

    @Nickel Front & @Steven L. Taylor:

    It’s worth noting that Johnathon Turley, the Republican called Impeachment Witness, feels Feldman is wrong.

    Feldman has written in Bloomberg News that Trump is not actually impeached until the articles of impeachment are transferred to the Senate. I disagree and believe that Feldman is conflating provisions concerning removal with those for impeachment.

    Five [Constitutional] provisions are material to impeachment cases, and therefore structure our analysis… Under these provisions, President Donald J. Trump was impeached on December 19th at 8:09 p.m. Article I Section 2 says that the House “shall have the sole power of impeachment.” It says nothing about a requirement of referral to complete that act. Impeachment occurs when a majority of the House approves an article of impeachment.

    https://jonathanturley.org/2019/12/20/trump-was-impeached-a-response-to-noah-feldman/

    Clearly we’re in an quantum state!

  60. wr says:

    @Steven L. Taylor: “This is a fun talking point,”

    Well, the losers are certainly having fun talking about it. Quite fascinating to watch them convince themselves that up is down in real time. By next week the entire impeachment will never have happened and Nancy Pelosi will have called Trump to say “Sir, you are the greatest president ever and I wish I were worthy of you, sir.”

  61. @wr: To be clear, I meant that to be read with a hint of sarcasm (while recognizing if law profs want to make into a kind of “how many angels can dance on the the head of a pin” kind of thing, then cool).

    The more I think about it: sole power means sole power.

  62. wr says:

    @Nickel Front: “Delaying also undercuts the whole Imminent Threat To Our Democracy argument as well, further questioning the legitimacy of this whole process.”

    Except that Mitch McConnell, who has a constitutional duty to act as an impartial juror, has publicly stated that he will do no such thing and will work for immediate dismissal. The chair of the judiciary has said the same thing. It would be truly undercutting for Pelosi to say that Trump is an immediate threat to our democracy, but now I’m going to let his self-announced henchman help him commit more crimes.

  63. wr says:

    @Steven L. Taylor: ” To be clear, I meant that to be read with a hint of sarcasm”

    I wasn’t really worried you’d found a new BFF.

  64. Mister Bluster says:

    The House of Representatives shall have the sole Power of Impeachment.
    Article I Section 2 Par. 5. USCon

    The House of Representatives has voted Articles of Impeachment against President Trump.

    Totally hypothetical situation. President Trump gets run over by a reindeer and expires on Christmas Day on the 19th hole of Mar-A-Lago before the Trial of his Impeachment in the United States Senate.
    VP Pence assumes the Presidency.
    Does Donald Trump go down in history as the third United States President to be successfully Impeached?

  65. An Interested Party says:

    Heh

    With much of the legislative lifting done for the remainder of the 116th Congress — next year is an election year — Pelosi said she felt very confident about Democrats retaining their majority in November.

    And more than 30 House Republicans have already announced their retirements or left office, a sign that the GOP is not optimistic about taking back power. On Thursday, Rep, Mark Meadows (R-N.C.), a top Trump ally and major force in the hard-line House Freedom Caucus, announced he wasn’t going to run for reelection.

    “It means that they know they’re gonna lose,” Pelosi declared. “And if you win, you’re going to serve in the minority under a Democratic president. You may want to spend more time with your family.”