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President Trump Has Not Yet Been Impeached Even Though the House Approved Articles of Impeachment [Updated]
Andrew Hyman

After the House of Representatives approved articles of impeachment against President Trump, the New York Times declared in its headline: “TRUMP IMPEACHED: ABUSE OF POWER AND OBSTRUCTION.”  But after that headline, the Times  mentioned that, “Speaker Nancy Pelosi suggested she may wait to send the articles to the Senate making the timing of a trial uncertain.”  As a matter of constitutional law, there is no impeachment unless and until the House formally delivers its accusation to the Senate and prosecutes its case in the Senate.

The leading law dictionary of the eighteenth century defined impeachment this way: “IMPEACHMENT, [from Lat. impetere.]  Is the Accusation and Prosecution of a Person for Treason, or other Crimes and Misdemeanors.”  That is why the U.S. House of Representatives has sole power not just to vote for articles of impeachment and to deliver them to the Senate, but also to prosecute the President in the Senate.  If impeachment merely meant voting for articles of impeachment, then the House would not be entitled to prosecute its case in the Senate, and the Senate could instead make its own rules about who will prosecute the case.

Of course, there is little doubt that Trump will be impeached, because there is little doubt that a trial will occur in the Senate.  But, as a constitutional matter, he has not been impeached yet, and it is always possible that the House will not get around to delivering its articles of impeachment and then prosecuting its case.

Incidentally, if an article of impeachment contains a smorgasbord of accusations and factual assertions, it is probable that all of those elements in an article of impeachment would have to be proved in order to secure a conviction in the Senate.  The Senate Manual has specified that, “An article of impeachment shall not be divisible for the purpose of voting thereon at any time during the trial.”  So, prosecutors may have to prove nothing less than the entire truth of an article of impeachment.  For example, if an article of impeachment says that the President committed bribery, extortion, and treason then the prosecutors would apparently have to prove all three in order to secure a conviction.

UPDATE (by Michael Ramsey): You heard it here first, but now everyone's saying it...

Andrew McCarthy at NRO: If Impeachment Articles Are Not Delivered, Did Impeachment Happen?

Noah Feldman (!) at Bloomberg:  Trump Isn’t Impeached Until the House Tells the Senate.  Here's the core of his analysis (which is kind of originalist, but also a bit of ipse dixit): 

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.


The framers drafted the constitutional provisions against the backdrop of impeachment as it had been practiced in England, where the House of Commons impeached and the House of Lords tried the impeachments. The whole point of impeachment by the Commons was for the charges of impeachment to be brought against the accused in the House of Lords.

Strictly speaking, “impeachment” occurred – and occurs -- when the articles of impeachment are presented to the Senate for trial. And at that point, the Senate is obliged by the Constitution to hold a trial.

See also here (via Instapundit):  Trump’s Lawyers Wonder: If Pelosi Never Delivers The Articles Of Impeachment, Does That Mean He’s Not Really Impeached?