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01/06/2020

The Unimpeached President (Again)
Michael Ramsey

News reports say that Senate Judiciary Committee Chair Lindsey Graham wants the Senate to go ahead with an impeachment trial if the House does not deliver the Articles of Impeachment.

Sen. Lindsey Graham, R-S.C., insisted Sunday that if House Speaker Nancy Pelosi does not deliver articles of impeachment against President Trump to the Senate by the end of the week, the Senate should "take matters in our own hands."

Graham accused Pelosi of playing political games and trying to exert control over the Senate trial by keeping it from starting. Senate Majority Leader Mitch McConnell, R-Ky., recognized Friday on the Senate floor the chamber's rules prevented him from doing anything until Pelosi does her part, but Graham proposed a solution that could remove what McConnell has called an "impasse" in the process.

"What I would do, if she continues to refuse to send the articles as required by the Constitution, I would work with Senator McConnell to change the rules of the Senate so we could start the trial without her, if necessary," Graham proposed on "Sunday Morning Futures."

Can the Senate do that?  If the President has been impeached, absolutely the Senate can do that.  The Senate has "sole power to try all Impeachments." (Art. I, Sec. 3).  That's all the Constitution says on the matter.    So the Senate can do what it wants.  It doesn't have to hold a trial at all.  If it does, it doesn't have to give the House any role.  Any role the House has had in prior impeachment trials (especially, appointing "managers" to argue the impeachment) is a courtesy role, not a constitutional one.  The Constitution does require anything from the House once impeachment is completed.  The Senate rules provide such a role, but as Senator Graham says, the Senate can change the rules.  The Constitution gives everything up to the point of impeachment to the House (Art. I, Sec. 2) and everything after that to the Senate (Art. 1, Sec. 3).  So Senator Graham is entirely correct.

If the President has been impeached.

But as argued by Andrew Hyman on this blog, and by Noah Feldman at Bloomberg (and elaborated by Keith Whittington at Volokh Conspiracy), historical understanding and practice strongly indicate that a President is not impeached (under the Constitution's original meaning) until the Articles of Impeachment are delivered to the Senate.  Impeachment, in this view, is not the act of voting on the articles, but rather the act of making an accusation to the entity having trial authority (in this case, the Senate).

And if that's right (and I think it is), then Senator Graham is wrong.  Speaker Pelosi can hold on to the undelivered articles of impeachment as long as she wants, and there's nothing constitutionally that the Senate can do about it.  The vote in the House was to authorize the House to proceed with an impeachment, but it was not in itself an impeachment.  Speaker Pelosi may choose not to proceed with the impeachment (that is, with the delivery of the accusation to the Senate) even though she is authorized to do so.  Until she completes the impeachment, there is nothing for the Senate to act upon.  The Senate can only begin the trial of an impeachment once the impeachment happens.

Thus it makes a substantial difference how we understand the original meaning of "Impeachment" in the Constitution.  (I've made this point before but especially in light of Senator Graham's comments it seems worthwhile to restate it).