White House

If Impeachment Articles Are Not Delivered, Did Impeachment Happen?

House Speaker Nancy Pelosi wields the gavel as the House of Representatives votes in favor of two counts of impeachment against President Donald Trump on Capitol Hill, December 18, 2019. (Jonathan Ernst/Reuters)
It’s hard to believe the Speaker’s latest stunt will go on for very long.

I’ll confess: Last night, when I was first told that Speaker Nancy Pelosi was toying with the idea of not delivering the two articles of impeachment voted by the House against President Trump, I assumed it was a joke.

For these last weeks, the Democrat-dominated chamber has been in a mad rush to impeach the president. Democrats even tacked on article two — “obstruction of Congress” — because, they told us, time could not be wasted engaging in the usual negotiation and litigation over legislative demands for executive branch information. Trump is a clear and present threat to “continue” undermining our elections, we were admonished. That’s why he needs to be impeached right now. That’s why the political class cannot responsibly leave his fate up to the sovereign, the People, who will vote in November.

But now that the deed is done, it’s . . . hey, not so fast.

Pelosi and Democratic leadership have convinced themselves there may be advantage in delaying the formal, ministerial delivery of the impeachment articles — as if Mitch McConnell were in as much a hurry to receive them as Democrats were to conjure them up. The thought is that this latest strategic petulance might pressure Senator McConnell into promising a full-blown trial, including summoning as witnesses top aides of the president whom the House didn’t bother to summon because tangling over privilege issues would have slowed up the works.

So it’s not a joke, but I still have to laugh. When I was a prosecutor negotiating plea deals, I always found the most pathetic defense lawyers were the ones who acted like they were playing with the House money when, in stark reality, it was they who needed something from me. Now here’s Pelosi trying to play hard to get with McConnell who, I imagine, couldn’t care less how long Democrats want to dither.

What we’ve just seen is the most partisan impeachment in American history, every step of it politically calculated. Obviously, if Democrats perceived advantage in stretching the process out, it would still be going on. There would be more witnesses; more 300- or 600-page committee reports to try to add heft and gravity to vague allegations of inchoate misconduct; more speeches about Trump as a threat to democracy and life as we know it; etc., etc.

To the contrary, Pelosi & Co. want this train wreck in the rearview mirror ASAP. The public is indifferent and polls are edging in Trump’s favor. On our local news this morning, the third impeachment of a president of the United States in American history couldn’t crack the top stories — it came in behind cold weather (in December) and the rescue of an elderly man in a gym by a couple of off-duty cops.

No one, of course, has to explain this to McConnell. In public, at least, he’s not a laughing-his-head-off kinda guy, but if he were, he would be.

It’s hard to believe the Speaker’s latest stunt will go on for very long. In the Senate this morning, the Democrats’ minority leader, Senator Chuck Schumer, renewed his demands about trial procedures, discovery, and witness testimony. There was no discernible hint of doubt that the House would soon deliver its impeachment articles, such as they are.

But since we’ll be playing trivial pursuit for a more few hours (days?), we might as well ask: As long as the House withholds the impeachment articles from the Senate, has Trump been impeached?

In the law, there are many situations in which an outcome is known, but it is not a formal outcome until some ministerial act is taken. A grand jury can vote an indictment, for example, but the defendant is not considered indicted until the charges are filed with the clerk of the court. A defendant can be found guilty by a jury, but there is technically no conviction until the judgment is “entered” by the trial court, usually months later when sentence is imposed. An appellate court can issue a ruling that orders a lower court to take some action, but the lower court has no jurisdiction to act in the case until issuance of the appellate court’s “mandate” — the document that formally transfers jurisdiction.

Plainly, Congress has similar ministerial acts of transference that must occur in order for legislation to pass. Were that not the case, Speaker Pelosi would not be talking about delaying the transfer of impeachment articles.

So it’s all well and good for the Speaker to hold up the works that Democrats, five minutes ago, were breathlessly telling us had to be carried out with all due haste. But many scholars take the position that the Constitution requires a trial if there has been an impeachment. If such a trial cannot properly occur unless and until articles of impeachment have been transferred from the House to the Senate, and Speaker Pelosi won’t transfer them, has President Trump actually been impeached?

Sure, it’s a stupid question . . . but we’re living in stupid times.


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