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01/17/2021

Keith Whittington on the Timing of Impeachment
Michael Ramsey

At Volokh Conspiracy, Keith Whittington:  When is an Officer Impeached?  From the introduction: 

During the first impeachment I wrote a series of posts trying to answer the question of when exactly an officer is impeached. (Just to address a common terminological confusion, recall that an "impeachment" is what the House does, and an "impeachment trial" is what the Senate does.) The question seemed relevant because House Speaker Nancy Pelosi decided to sit on the articles of impeachment adopted by the House and delay delivering them to the Senate. But as I emphasized then, the question of the official timing of the impeachment was entirely academic since there is no constitutional or legal consequence to an impeachment except that the Senate may then hold an impeachment trial (unlike in some state systems where the officer is immediately suspended from his office at the moment of impeachment). The delay did have political and rhetorical consequences, however, undermining the House's claim that the president was a clear and present danger to the republic who needed to be removed immediately.

Pelosi is doing it again. The House has voted to impeach and has approved an article of impeachment, and Pelosi has even named a team of managers to prosecute the impeachment case. But Pelosi has once again decided to sit on the articles and to not formally notify the Senate that the president has been impeached. This time it might have more substantial consequences.

And further: 

[T]he House risks handing the Trump defense team unnecessary legal arguments. It will already be difficult to persuade two-thirds of the senators that a former president can be put on trial and convicted of high crimes and misdemeanors. I believe that the House can impeach a former president and that the Senate can try a former president, but the textual case is stronger for the latter than the former.

...

But if you are of the view that the Senate can try all constitutionally valid impeachments, even when the officer has left the office, but an impeachment is only constitutionally valid when the impeached individual is a current officer, then the timing of the impeachment matters. Some of what Judge Luttig has written suggests that he is of this view. This might be the one circumstance in which, under the federal constitution, the question of when an officer is impeached has actual constitutional consequences.

And the key point:

If you take that possibility seriously—and some senators might—then it matters a great deal when exactly the House used its impeachment power to formally impeach Trump such that it can validly authorize the Senate to hold an impeachment trial. As I observed in the earlier posts, the traditional understanding of the impeachment power in the United States up until the early twentieth century was that the "impeachment" occurs when an authorized member of the lower chamber appears on the floor of the upper chamber and "impeaches" an officer by formally leveling an accusation and demanding a trial. Starting in 1912, the House has taken the view that the "impeachment" occurs when the House votes to adopt a resolution of impeachment. Under the modern view, Trump has already been impeached, and so there should be no question about whether the Senate can start a trial whenever the House gets around to exhibiting articles of impeachment. Under the traditional view, Trump has not yet been impeached and will not be impeached until the House formally notifies the Senate.