United States President Donald Trump and his Republican Party allies could seize on an op-ed by a Harvard University law professor in order to change the definition of impeachment to suit his purposes.
The House of Representatives voted on December 18 2019 to impeach the president for abuse of power and obstruction of Congress related to his threat to withdraw military aid from Ukraine. But as CBS News reported, the administration is considering arguing the opposite, based on a piece written for Bloomberg Opinion by Noah Feldman and published the day after the vote.
According to Feldman — who testified before the House Judiciary Committee that he felt Trump should be impeached and removed from office — the impeachment of the president is not official until the House sends the articles listing the charges against Trump to the Senate, which is in charge of conducting the ensuing trial.
“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,” Feldman wrote. “But the House would be acting against the implicit logic of the Constitution’s description of impeachment.”
House Speaker Nancy Pelosi and House Democrats said that she would not send the articles of impeachment to the Senate until they get assurances that the trial would be conducted impartially and that Senate Democrats would be allowed to call administration staff members to testify.
Feldman’s op-ed, however, did not address the fact that nearly a week before the House vote Senate Majority Leader Mitch McConnell admitted on the right-wing network Fox News that he was coordinating with White House counsel on the issue and added that there was “no chance” that Trump would be removed from office.
“What would make that trial fair is a separate question, one that deserves its own discussion,” Feldman wrote. “But we can say with some confidence that only the Senate is empowered to judge the fairness of its own trial — that’s what the ‘sole power to try all impeachments’ means.”
Feldman did later say that his argument was “more symbolic than practical.” There is no concrete ruling stating that Trump has not been impeached.
It has also come under question by his Harvard Law colleague Laurence Tribe, who called his position “a clever but wholly mistaken point” online.
On December 20 2019, Feldman highlighted a Florida Supreme Court decision from November 1868 as applicable to Trump’s impeachment; the court found that the impeachment of Gov. Harrison Reed was invalid, because the state Senate did not have a quorum when it voted to do so. Tribe, in turn, highlighted another user’s rebuttal to Feldman and called that case “clearly irrelevant.”
A third Harvard Law professor, Alan Dershowitz — a consistent ally of the president — corrobrated Tribe’s viewpoint even as he defended Trump in his own op-ed, published in the Wall Street Journal on December 22, 2019.
“My view-which I suspect much of the public shares—is that Mr. Trump was impeached by a partisan vote and deserves to be acquitted by a partisan vote,” Dershowitz wrote. “The representatives who impeached him along party lines after devising partisan rules of inquiry have no principled argument against a party-line acquittal.”
Update 12/23/2019, 1:32 pm: Updated with note on comment by Alan Dershowitz.