More on the Unimpeached PresidentMichael Ramsey

At Volokh Conspiracy, Keith Whittington has a great post on the meaning of impeachment:  When Is an Officer Impeached? But I draw the opposite conclusion from his evidence.  It turns out to be a question of methodology.

First, he confirms Andrew Hyman's argument that the original meaning of impeachment was to bring a formal accusation -- in the case of the U.S. Constitution, for the House to bring a formal accusation to the Senate.

When the House contemplated its first impeachment, of Senator William Blount in 1797, there was a fair amount of uncertainty about how it should do it. Legislators looked to the English Parliament to try to figure out how the process worked and did their best to follow along.

Notably, that meant passing a resolution in the House designating someone to walk over to the Senate and impeach Senator Blount. The Senate Journal records that a message had been received from the House to be delivered by Representative Samuel Sitgreaves, to wit:

Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.

The House had commanded Sitgreaves to go to the Senate and impeach Blount. Once that was done, then the Senate could send notice to Blount that he had been impeached and could prepare for trial. The House would draft and exhibit in the Senate articles of impeachment later.

This was the form that the House used to impeach officers all through the nineteenth century. The form was the same when the House impeached judges, a justice, a cabinet member, and a president. In 1904, the Senate sergeant-at-arms announced the presence of a member of the House who

In obedience to the order of the House of Representatives we appear before you, and in the name of the House of Representatives and of all the people of the United States of America we do impeach Charles Swayne, Judge of the district court of the United States for the northern district of Florida, of high crimes and misdemeanors.

But he goes on to note that in the early 20th century the House changed forms and began describing the adoption of articles of impeachment as the impeachment.

In 1912, the Senate Journal records a rather different message from the House. At that time, the House instructed its chief clerk to send a written message to the Senate which was then entered into the record of the upper chamber. The clerk was "directed to communicate to the Senate"

Resolved, That a message be sent to the Senate to inform them that this House has impeached, for high crimes and misdemeanors, Robert W. Archbald, circuit judge of the United States.

The Senate was merely notified that the House had already impeached Judge Archbald and informed that a set of named managers had been appointed to exhibit before the Senate articles of impeachment. Subsequently the House likewise adopted resolutions specifying that an officer "is impeached," as it did with President Bill Clinton in 1998, and then sent a written message to the Senate informing the upper chamber that an impeachment had occurred and demanding that the Senate convict and remove the officer in question.

From this he concludes that ("[p]robably") the constitutional meaning has changed so that a President is now impeached by the House vote, even though previously a President was only impeached by delivery of the articles to the Senate.

That seems wrong to me, though, as a matter of constitutional interpretation.  If the Constitution means what it meant when it was adopted, the House cannot change its meaning.  "Impeachment" had a particular meaning, which persists regardless of what the House may later choose to call things.  Otherwise, the House (or any other branch of government, including the President) can amend the Constitution merely by calling things by different names.  Put another way, the House can call anything "impeachment" that it chooses, but "impeachment" for constitutional purposes remains what the founding generation understood it to mean: bringing an accusation to the Senate.

One might say it's an academic question.  But in fact there are practical consequences, as suggested in point #4 of this post.  If impeachment occurs only upon delivery of the accusation to the Senate, then the Senate cannot begin an impeachment trial until the accusation is delivered.  The Senate has sole power to try impeachments, but that power isn't triggered until an impeachment occurs.  If Professor Whittington is right that the constitutional meaning has been changed by practice, though, that conclusion no longer holds.  If impeachment occurs upon the House's adoption of articles of impeachment, then the Senate's power to try the impeachment is triggered at that point, and the Senate can (constitutionally) proceed with the trial, whether or not the articles are delivered.  The Senate has no constitutional obligation to wait for the House to do anything further (though of course it might choose to do so out of courtesy).

In sum, the House can't have it both ways.  It cannot both declare an impeachment and prevent the Senate from proceeding with a trial.  Either  there is no impeachment (and so no trial) until the articles of impeachment are delivered, or there is an impeachment and the trial may proceed.

And this makes perfect constitutional sense.  There is no reason to allow the House to impeach a President but deny the Senate the ability to hold a trial.