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In a Bloomberg News opinion-editorial published Thursday, Feldman writes the definition of impeachment, according to the framers, “assumed that impeachment was a process, not just a House vote,” and impeachment is official only when the articles are transmitted to the Senate, where lawmakers are “obliged by the Constitution to hold a trial.” Feldman writes: 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. As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message. … If the House votes to “impeach” but doesn’t send the articles to the Senate or send impeachment managers there to carry its message, it hasn’t directly violated the text of the Constitution. But the House would be acting against the implicit logic of the Constitution’s description of impeachment. A president who has been genuinely impeached must constitutionally have the opportunity to defend himself before the Senate. The debate over whether President Trump is formally impeached comes as House Speaker Nancy Pelosi (D-CA) remains noncommittal about sending the articles to the Senate, citing recent Democrat concerns a trial held by the upper chamber will not be “fair” and that senators won’t be “impartial” jurors. “We’ll make that decision as a group, as we always have, as we go along,” Pelosi told reporters when asked about a timetable for sending the articles. “So far we haven’t seen anything that looks fair to us.” In a Thursday floor speech, Senate Majority Leader Mitch McConnell (R-KY) denounced Wednesday evening’s partisan impeachment vote and slammed the speaker for being “too afraid” to send “their shoddy work product to the Senate.” “The framers built the Senate to provide stability,” McConnell said. “To keep partisan passions from boiling over. Moments like this are why the United States Senate exists.” President Trump also ripped Pelosi for holding up the articles, tweeting Thursday: “If the Do Nothing Democrats decide, in their great wisdom, not to show up, they would lose by Default!” Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest #1. To: All (#0) https://jonathanturley.org/2019/12/20/trump-was-impeached-a-response-to-noah-feldman/ Trump Stands Impeached: A Response To Noah Feldman Jonathan Turley 20 December 2019 In the House Judiciary Committee, I had some fundamental disagreements with my friend Professor Noah Feldman on issues ranging from the basis for impeachment on the basis of specific crimes (bribery, extortion, campaign finance violations, and obstruction of justice) as well as his claim that the legal definition of these crimes are immaterial to their use in impeachment. Ultimately, the Judiciary Committee dropped those four theories and went forward with the two articles that I testified would be legitimate, if proven: abuse of power and obstruction of Congress. Now, however, we have another disagreement. Feldman has written in Bloomberg News that Trump is not actually impeached until the articles of impeachment are transferred to the Senate. I disagree and believe that Feldman is conflating provisions concerning removal with those for impeachment. Frankly, I am mystified by the claim since I see no credible basis for maintaining this view under either the text or the history of the Constitution. Five provisions are material to impeachment cases, and therefore structure our analysis: Article I, Section 2: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. U.S. Const. art. I, cl. 8. Article I, Section 3: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. U.S. Const. art. I, 3, cl. 6. Article I, Section 3: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to the Law. U.S. Const. art. I, 3, cl. 7. Article II, Section 2: [The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. U.S. Const., art. II, 2, cl. 1. Article II, Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. U.S. Const. art. II, 4. Under these provisions, President Donald J. Trump was impeached on December 19th at 8:09 p.m. Article I Section 2 says that the House “shall have the sole power of impeachment.” It says nothing about a requirement of referral to complete that act. Impeachment occurs when a majority of the House approves an article of impeachment. Section 3 gives the “sole power to try all impeachments” to the Senate. For such a trial to occur, the Senate is officially informed of the articles of impeachment by the House. One can argue that without such a referral, the Senate would not take up the impeachment. Indeed, as I stated in my testimony, English precedent includes the power of the House of Lords not to take up impeachments. The majority of impeachments were not taken up by the House of Lords because they were viewed as raw political exercises. That is not our tradition. An analogy can be drawn to federal indictments by a grand jury. If the grand jury decides the evidence presented establishes probable cause, it issues an Indictment against the accused. At least 16 of the 23 members of the grand jury must be present to conduct business, and at least 12 jurors must vote to indict. The Indictment is called a True Bill. If the grand jury does not find sufficient probable cause, it returns a No Bill. In a misdemeanor case, or in a felony case where the accused has waived indictment and has agreed, instead, to plead guilty, no case is presented to the grand jury. In those instances, an Information, which is a document outlining probable cause, is filed with the U.S. District Court. Arraignment — Within 10 days from the time an Indictment or Information has been filed and arrest has been made, an Arraignment must take place before a Magistrate Judge. During an Arraignment, the accused, now called the defendant, is read the charges against him or her and advised of his or her rights. The defendant also enters a plea of guilty or not guilty. If necessary, a trial date is selected and a schedule set for motion hearings, which may include in-court arguments as to suppression of evidence, etc. Note, the Federal Speedy Trial Act dictates the defendant has right to trial within 70 days from his or her initial appearance in U.S. District Court. Where Noah and I agree is that this use of the articles as a bargaining chip is a departure from tradition and undermines the integrity of the process. It also contradicts the Democratic narrative that the House could not wait because this is a “crime in progress.” I argued that a little more time could greatly enhance this record. Now, having adopted articles of impeachment on a facially incomplete and insufficient record, the House suddenly has ample time to toy with the Senate on the transferral of the articles for trial. Yet, on the issue of impeachment, that was established with the adoption of Article 1 on the abuse of power. nolu chan  posted on  2019-12-20   20:06:41 ET  Reply   Trace   Private Reply   #2. To: All (#0) https://dailycaller.com/2019/12/20/takala-dershowitz-pelosi/ Dershowitz: Pelosi Doesn’t Have The Impeachment Power She Believes Rudy Takala Contributor The Daily Caller December 20, 2019 1:00 PM ET House Speaker Nancy Pelosi doesn’t have the power she believes to prevent the Senate’s participation in impeachment proceedings, former Harvard Law School Professor Alan Dershowitz said Thursday. “Whether the House wants it to be in the Senate or not, the matter is now properly before the Senate,” Dershowitz said in a call with the Republican National Lawyers Association. “The presiding officer of the Senate can set a trial date, convene the chief justice and begin the trial. So I don’t think that Pelosi has the power that she thinks she has, or that my colleague Larry Tribe thinks she has.” Harvard Law Professor Laurence Tribe has suggested the House withhold the trial until the Senate changes its rules to be more favorable to Democrats, or until another election puts more Democrats in the chamber. “Senate rules requiring the House to ‘immediately’ present its articles of impeachment to the Senate clearly violate the constitutional clause in Article I giving each house the sole power to make its own rules,” Tribe wrote in a Dec. 18 tweet. He subsequently deleted the message. “I can imagine nothing more unconstitutional than a House impeachment without sending it to the Senate,” Dershowitz said. “It’s just unheard of. The Constitution provides that it is a two-step process, not a one-step process. It doesn’t say the president may be impeached, period, that’s the end of the matter. It says the president may be impeached, and if he’s impeached by the House, the Senate then gets to decide whether he should be removed. “The idea that a stain would remain on the books, that the president would remain impeached, without an opportunity for the president to get acquitted by the Senate, is plainly unconstitutional,” he added. “It would be as if a prosecutor decided he had insufficient evidence to get a conviction, so he went after an ordinary citizen and said, ‘Look, I’m just going to indict him. Let the public know he’s indicted. For the rest of his life, he will stand indicted. But I have no intention of bringing him to trial. I will deny him his Sixth Amendment right to a speedy trial. I’m going to let the indictment just hang out there.’ Obviously, no judge would tolerate that.” Dershowitz said the president could seek to have the matter dismissed if it did not proceed to trial, but that it would “probably be a mistake” at this stage. “Could the president now go to the courts and say, ‘Look, while the constitution says the House is the sole judge of impeachment, they have now violated the Constitution’? The president’s legal team could theoretically go before the chief justice and seek to dismiss. “The option that will probably be decided on is to make legal arguments, probably no witnesses, probably no experts, and leave it to the Senate whether to acquit or convict. It’s likely, based on the evidence that’s been presented thus far to the House, that there would be a vote of acquittal,” Dershowitz said. “Remember, you need two-thirds to convict. The reason we need two-thirds to convict is the framers did not want a partisan impeachment. They wanted an overwhelming consensus in favor of removing a president.” nolu chan  posted on  2019-12-20   20:08:57 ET  Reply   Trace   Private Reply   Top • Page Up • Full Thread • Page Down • Bottom/Latest

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