Democrats Debate Whether Trump Has Been Impeached
Democrats Debate Whether Trump Has Been Impeached by Alan M. Dershowitz for Gatestone Institute
- Under Laurence Tribe’s scenario, the House Democrats get to “obstruct” the Senate and “abuse” their power (to borrow terms from the articles of impeachment).
- I believe that the Senate need not wait for articles of impeachment to be transmitted. Senators are empowered by the constitution to begin a trial now — with or without further action by the House. Just as the House has the “sole power of impeachment,” so too the Senate has the “sole power to try all impeachments.”
- Tribe and the Democratic House majority, led by Speaker Pelosi, want to have their constitutional cake and eat it too: they want Trump impeached but not acquitted. Sorry, but the Constitution does not permit that partisan, result-oriented ploy. Either Trump has been impeached and is entitled to a Senate trial; or he has not been impeached and is entitled to a clean slate.
- So there are only two constitutionally viable alternatives: either Pelosi must announce that Trump has not been impeached; or the Senate must initiate a trial. Preserving the status quo indefinitely — Trump remaining impeached without having a trial — is unconstitutional and should not be tolerated by the American people.
Speaker Pelosi’s unconstitutional decision to delay transmission of the articles of impeachment to the Senate in order to gain partisan advantage raises the following question: has President Trump been impeached, or did the House vote merely represent an authorization or intention to impeach — which becomes an actual impeachment only when the articles are transmitted?
This highly technical constitutional issue is being debated by two of my former Harvard Law School colleagues — Professors Laurence Tribe and Noah Feldman — both liberal Democrats who support President Trump’s impeachment.
Tribe believes that Trump has been impeached and that it would be perfectly proper to leave it at that: by declining to transmit the articles of impeachment, the Democrats get a win-win. President Trump remains impeached but he gets no opportunity to be tried and acquitted by the Senate. This cynical, partisan ploy is acceptable to Tribe because it brings about the partisan result he prefers: Trump bears forever the stigma of impeachment without having the opportunity to challenge that stigma by a Senate acquittal. Under the Tribe scenario, the House Democrats get to “obstruct” the Senate and “abuse” their power (to borrow terms from the articles of impeachment).