Speaker Pelosi’s latest partisan stunt of not sending over the Articles of Impeachment to the Senate is creating a variety of opinions on the legal ramifications but almost universal agreement that it is another bad idea for her. Let’s sample three current and former Harvard Law professors.
Professor Noah Feldman makes the point that President Trump has not yet been impeached as a result of Speaker Pelosi’s actions. In an op-ed entitled Trump Isn’t Impeached Until the House Tells the Senate, he states:
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.
Feldman is not some random Harvard professor. He was one of the Democrats' professor witnesses against President Trump in the impeachment hearings.
Democrat and fellow Harvard Law Professor Larry Tribe takes a different tact. Tribe who seems to back the Democrat side regardless of the facts tweeted:
Senate rules requiring the House to “immediately” present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules. It’s up to the House when and how to prosecute its case in the Senate
Tribe has since taken down that tweet. Maybe it was in light of his former colleague, Alan Dershowitz’s, argument that:
“I can imagine nothing more unconstitutional than a House impeachment without sending it to the Senate,” Dershowitz said. “It’s just unheard of. The Constitution provides that it is a two-step process, not a one-step process. It doesn’t say the president may be impeached, period, that’s the end of the matter. It says the president may be impeached, and if he’s impeached by the House, the Senate then gets to decide whether he should be removed.
“The idea that a stain would remain on the books, that the president would remain impeached, without an opportunity for the president to get acquitted by the Senate, is plainly unconstitutional,” he added. “It would be as if a prosecutor decided he had insufficient evidence to get a conviction, so he went after an ordinary citizen and said, ‘Look, I’m just going to indict him. Let the public know he’s indicted. For the rest of his life, he will stand indicted. But I have no intention of bringing him to trial. I will deny him his Sixth Amendment right to a speedy trial. I’m going to let the indictment just hang out there.’ Obviously, no judge would tolerate that.”
The Daily Caller article mentioned above is based on an RNLA conference call with Professor Dershowitz. If you would like to hear the call, a recorded version is available to RNLA members. Join RNLA and send an email to firstname.lastname@example.org and we will send you a copy.