Two prominent Harvard Law School professors, Noah Feldman and Laurence Tribe, are disagreeing over whether President Trump has been officially impeached.
Professor Noah Feldman, who testified before the House Judiciary Committee earlier this month that Trump had committed “impeachable high crimes and misdemeanors,” wrote in a Bloomberg Opinion column that Trump would not be officially impeached until the impeachment articles are sent to the Senate for trial.
Feldman’s idea is bound to draw some attention. After this week’s historic impeachment vote in the House, Democratic House Speaker Nancy Pelosi is holding back the articles from the Republican-dominated Senate in a politically risky bid to influence the shape of the Senate trial on whether to convict and remove Trump.
Feldman suggested that, if the House holds onto the articles, Trump could say he hadn’t been impeached.
“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,” Feldman said in the Bloomberg piece.
“Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial. Both parts are necessary to make an impeachment under the Constitution: The House must actually send the articles and send managers to the Senate to prosecute the impeachment. And the Senate must actually hold a trial,” Feldman wrote.
He said all the news headlines that came out after the vote this week that said Trump was impeached were “a media shorthand, not a technically correct legal statement.”
Harvard professor Laurence Tribe, a harsh Trump critic who has been consulted by House Democrats and has championed the idea of the House holding the articles, engaged in a polite professorial debate with Feldman on Twitter.
Tribe said Feldman “is making a clever but wholly mistaken point when he says Trump hasn’t ‘really’ been impeached until the Articles reach the Senate. Under Art. I, Sec. 2, Clause 5, he was impeached on Dec 18, 2019. He will forever remain impeached. Period.”
Feldman wrote back, “How is it mistaken,@tribelaw? Since you wrote a great book about it, you surely agree and know that the core of impeachment is and has always been presenting the articles of impeachment in the Senate (or House of Lords in England) and prosecuting the charges.”
Tribe, who is coauthor of “To End a Presidency: The Power of Impeachment,” responded, “Nice of you to compliment my book, @NoahRFeldman, but what you call impeachment’s ‘core’ mistakes a part for the whole, a classic logical and, in this case, textual error. Had Nixon resigned right after rather than before the House impeached him, surely he’d’ve been ‘impeached.’ ”
“Sorry @tribelaw,” Feldman politely responded, “With great respect for you always, your view, not mine, mistakes part (House vote) for whole (House vote plus transmitting/presenting articles in the Senate). Impeachment is the whole thing.”
Feldman also argued that “if Nixon had resigned in the few minutes between a House impeachment vote and transmission of the articles, constitutionally he would not have been impeached. Colloquially people might say so, like @nytimes said ‘Trump Impeached.’ But we’re talking Constitution.”
Tribe shot back, “ ‘Talking Constitution’ shouldn’t depart too radically from talking English. It’s a legal text, yes, but its meaning should be accessible to nonlawyers. Recall John Marshall’s words in McCulloch v. Maryland (1819).“
“Fun to keep this going,@NoahRFeldman,” Tribe said, ”and I do respect you greatly, but I still disagree — and this academic dispute will soon become moot. If it doesn’t, let’s resume. Till then, I want maximum moral pressure on [Senate majority leader Mitch] McConnell.”
“You bet!” Feldman responded.
Material from Globe wire services was used in this report.
Martin finucane can be reached at firstname.lastname@example.org.