This week, the House approved articles of impeachment against President Donald Trump charging him with abuse of power and obstruction of Congress, and attention has now turned to the teed up Senate trial covering those charges. As Democrats keep trying to get Republicans to agree to provisions for fairness in that trial, the White House has come up with an absolutely outlandish new argument in an attempt to hurry things along. Lawyers working with the president are reportedly contemplating arguing that the president has actually not been impeached — despite, you know, the nationally televised vote following the hours, days, and weeks of hearings and debate.
How desperate do you have to be to come up with that excuse for an argument? According to Bloomberg, the idea is that the Constitutional assertion that the Senate will have the “sole power” to try impeachments means that impeachments aren’t final until they’re actually transmitted to the Senate, although that’s little more than a wistful rhetorical possibility that bears no resemblance to reality.
Bloomberg notes that:
‘[T[he argument is part of an effort by the White House and Senate Republicans to maximize their leverage as lawmakers debate when and how to conduct a trial on charges that the president abused his power to solicit an investigation into political rival Joe Biden, and obstructed the congressional investigation into the matter.’
The Republican position is that the trial should include no further witness testimony beyond that already gathered by the House, and they’re complaining about Democrats supposedly muddling the process for remaining intent on obtaining the same testimony that they’ve been after for some time but refused by the White House. Democrats’ aims include appearances by Trump’s former national security adviser John Bolton, current chief of staff Mick Mulvaney, and others, but Republicans like Senate Majority Leader Mitch McConnell (Ky.) and Senate Judiciary Committee Chairman Lindsey Graham (S.C.) have explicitly said that they will not be impartial jurors.
Democrats have responded to Republican obstruction by delaying their transmission of the case to the Senate. At her press conference appearances following the Wednesday impeachment vote, House Speaker Nancy Pelosi (D-Calif.) indicated that she’d wait to name managers for the House’s impeachment case until she saw what the Senate came up with.
Trump suggested that the delay is unconstitutional, but there is no evidence for this. As for the argument that he’s not really been impeached, Harvard Law Professor Laurence Tribe commented:
‘Under Art. I, Sec. 2, Clause 5, he was impeached on Dec 18, 2019. He will forever remain impeached. Period.’
.@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
Georgetown University’s Law Professor Marty Lederman separately noted that the House’s resolution covering impeachment procedures specifically separates impeachment from transmitting the articles to the Senate, making the first wholly doable without the other.
He noted:
‘H.Res. 755 states that the House “resolves” two distinct things: (i) “That Donald John Trump, President of the United States, *is* impeached for high crimes and misdemeanors”; “and” (ii) “that the following articles of impeachment be exhibited to the United States Senate.” The House has done the first thing.’
That’s likely not going to stop the desperate arguments against impeachment from continuing to emerge from the Trump team.
