The White House may try to argue that President Trump has not, in fact, been officially impeached because Speaker Nancy Pelosi hasn’t sent the articles of impeachment to the Senate yet.
Two sources involved with Trump’s impeachment defense told CBS News that the White House is considering making that argument following a Thursday opinion piece written by Harvard Law professor Noah Feldman, a legal expert who testified for the House Judiciary Committee in early December and has advocated for Trump’s impeachment and removal for office.
In the Bloomberg opinion piece, Feldman wrote that ‘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.’
The White House may try to argue that President Trump (pictured) has not been officially impeached because the House hasn’t sent the articles to the Senate yet
Speaker Nancy Pelosi (pictured) said Thursday she won’t send the articles to the Senate until it states its rules for the impeachment trial. The House voted to impeach Trump Wednesday
Trump continues to deny that he did anything wrong, despite having been impeached
The professor went on to note that ‘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.’
The sentiment that Trump’s legal team appears to have latched on to was Feldman’s statement that: ‘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.’
In response Feldman’s piece, Fox News Chief White House correspondent John Roberts’ tweeted that ‘If Pelosi holds onto them indefinitely, @realDonaldTrump would not be “impeached,”‘ leading Trump to reply: ‘Plus, never did anything wrong. Read the Transcripts. A Democrat Hoax!’
Feldman’s fellow Harvard Law Professor Laurence Tribe – co-author of To End a Presidency: The Power of Impeachment – refuted his colleague’s statement, however.
Feldman, Tribe tweeted Thursday, ‘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.’
Harvard Law professor Noah Feldman (left) wrote in Bloomberg that the Constitution states that for the impeachment to be official, the articles need to be sent to the Senate. His colleague, Tribe (right) disagreed with him
Tribe tweeted that Trump has definitely been impeached, per the Constitution
In backing up his case, Tribe referenced the section of the Constitution that states: ‘The House of Representatives…shall have the sole Power of Impeachment.’
The Democrat-led House had voted to impeach Trump on abuse of power and obstruction of Congress on Wednesday.
But, Pelosi said Thursday that the House wouldn’t send the articles of impeachment over to the Republican-dominated Senate until it had spelled out its rules for the trial.
Once the Senate does that, Pelosi said, the House will be able to figure out the number of impeachment managers and who to choose to send to the Senate to prosecute the case against Trump.
Democrats in both the House and Senate are said to be trying to force the Senate to demand more documents and witness testimony from people who the White House prevented from testifying during the House impeachment process.
The White House sources told CBS News that the delay in sending the articles of impeachment is being considered ‘a Christmas gift,’ as it can be used to show that that the Democrats are scared of starting a Senate impeachment trial that they know they’ll lose because they don’t believe their case will stand up to scrutiny.
Congressional Republicans have already started to use this message in public.
On Thursday, Senate Majority Leader Mitch McConnell said that holding off on sending the articles of impeachment indicated Democrats ‘may be too afraid to even transmit their shoddy work product to the Senate.’
House Minority Leader Kevin McCarthy, meanwhile, was quoted as saying that Pelosi is ‘admitting defeat by not sending them. By refusing to send impeachment over, she knows its outcome is not good.’
The White House sources said that despite being ‘angry’ about the impeachment process, Trump is in a ‘very good mood’ because he believes he can use the holiday break to sway people’s opinion to his side via Twitter.
White House legislative director Eric Ueland told CBS News’ The Takeout Friday that Trump is ‘completely baffled at the theory that Nancy Pelosi appears to have that somehow holding back impeachment articles will leverage some sort of specific behavior out of the Senate.’
Ueland also floated the idea that holding back the articles of impeachment could be ‘constitutionally questionable.’