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The House of Representatives Has Still Not Yet Accomplished the Purported Impeachment of President Trump
Andrew Hyman

I agree with co-blogger Michael Ramsey when he says that the House vote on articles of impeachment was not in itself an impeachment.  Thus, President Trump has not yet been fully impeached, and co-blogger David Weisberg is of the same opinion.  My reasoning is a bit different, though.

In the 1773 edition of his dictionary, Samuel Johnson defined the word “impeach” this way: “to accuse by public authority.”  Individual Senators' pre-trial accusations on television surely do not qualify as impeachment, because they are more like personal opinions than statements by public authority.  An official vote of the House of Representatives gets a lot closer, but what the House has done so far is incomplete.  It is not a full impeachment because the Constitution also contemplates an accusation by a prosecutor in a Senate trial; that accusation by a prosecutor is just as much an accusation by public authority as the preceding accusation by the House of Representatives, and both are powers reserved “solely” to the House of Representatives.  The Constitution provides that only the House of Representatives can make such an accusation, and that is why the right to prosecute impeachment in the Senate is a constitutional right of the House of Representatives, rather than a mere courtesy that the Senate can revoke any time it wants.

Indeed, as I mentioned previously, the leading legal dictionary of the founding era explicitly defined impeachment as including prosecution: “IMPEACHMENT, [from Lat. impetere.]  Is the Accusation and Prosecution of a Person for Treason, or other Crimes and Misdemeanors.”  Were it otherwise, the Senate could, for example, appoint the Chairman of the Senate Judiciary Committee as its prosecutor in all impeachment cases, even if that Chairman declines to recuse from voting on Articles of Impeachment. 

In The Federalist, Alexander Hamilton wrote that the Impeachment Clause deprives the Senate of all accusatory power: “[A]ssigning to one [house] the right of accusing, to the other the right of judging; avoids the inconvenience of making the same persons both accusers and judges....”  Those who now argue that the impeachment of Donald Trump has already been fully accomplished by the House of Representatives are saying just the opposite: that the Senate is free to control the prosecution during a Senate trial.

As far as English history is concerned, James Wilson described it accurately in 1791, elaborating upon what Hamilton had written in The Federalist:

Upon the separation of the two houses [in England], it became an obvious improvement, that the power of trying those high misdemeanors should belong to the house of lords, and that the power of conducting the prosecution should belong to the house of commons. In consequence of this improvement, the inconsistent characters of judge and accuser were no longer acted by the same body.

The House very likely will send its Articles of Impeachment to the Senate, and appoint managers to prosecute the impeachment of President Trump.  But if it does not, then no impeachment will have been accomplished in the constitutional sense.  Yes, this is partly about semantics, but it is also about who is constitutionally entitled and obligated to appoint prosecutors for Senate impeachment trials.  The House is free to use the word "impeach" however it wants, and free to say that the President is impeached, but so far that is not entirely true in the federal constitutional sense.  

The federal constitutional sense of impeachment can be found in state laws that say, "An impeachment is the prosecution, by the House of Representatives, before the Senate...." (e.g. see laws of Kansas and Oklahoma).  This is not a coincidence.

MICHAEL RAMSEY ADDS:  Andrew makes a good point here.  I will have to rethink my suggestion that the House does not have the constitutional right to conduct the prosecution.