Harvard Law professor Noah Feldman, the Democrats’ witness for the Constitution, argued that Trump really isn’t impeached if the “impeachment” isn’t transmitted to the Senate. At first I thought he was insane; then I realized that it was actually everyone else.
1. I think/hope we all agree that “impeachment” should be a formidable process. It’s a serious charge with serious consequences.
2. Per the Constitution, “impeachment” in the House only requires a simple majority. If that process were sufficient, then we’d have a tyranny of the House wherein the party in power — even with the slimmest majority — could remove the president, judges, and other senior officials. At that point, the slimmest majority in the House could extort the rest of the government, thus rendering the other two branches subservient.
3. The formidable component of the entire impeachment process — the part that maintains the co-equal aspect of the branches of American government and checks any tyranny of the House — exists entirely in the Senate. Per the Constitution, impeachment requires a two-thirds vote in the Senate. So while the slimmest of majorities may “impeach” in the House, 67 senators are required to convict in the Senate. The high bar for, and thus the gravity of, impeachment lies entirely in the Senate. The House impeaches with the same threshold used to pass National Catfish Day.
4. Impeachment is an expression of the most terrifying power of Congress — to reach into a separate branch of government and behead its leadership, thus nullifying votes and traditional processes — and since the Constitution embedded the difficulty of exerting this power entirely in the Senate, then impeachment as a solemn process cannot exist entirely in the House.
The confusion lies in the fact that we use the term “impeachment” to describe whatever the House is doing when, in fact, what the House is doing is more like a grand jury considering whether enough evidence exists for a trial. Thus, the House doesn’t really impeach; it indicts. Using mass media nomenclature, you could impeach a ham sandwich.
The Constitution states that the Senate has the “sole power” of trial, which is to say, examine the evidence and issue a verdict.
The Constitution does not provide for any method for the Senate to receive information regarding impeachment from the House. Presumably, the Senate isn’t supposed to learn of House activities from Twitter, but official transmissions and “House managers” and other bureaucratic accoutrements are extra-Constitutional. The Constitution is explicit in granting “sole power” to the Senate; it seems tenuous to argue that the Senate — aware of House activities through common Congressional procedures — can be forestalled if it wishes to engage a trial. “Sole power” means everyone and thing, from the President to the House, has no power in the Senatorial process.
It seems clear, though, that since the gravity of the impeachment process is vested solely in the Senate, that only “impeaching” by a simple majority in the House is equivalent to passing a non-binding resolution. Literally, a House-only ‘impeachment’ amounts to the same political preening as other non-binding resolutions (frequently titled as “Sense of the House” resolutions). Such amuse-politique includes non-binding resolutions and proclamations ranging from National Tartan Day (House Resolution 14; April 6) to National Catfish Day (House Resolution 178; June 25) to National Pi Day (House Resolution 224; March 14). If you really hate catfish or mathematical constants, then … there’s really nothing you can do. Such resolutions have no legal impact; they’re just the Muzak that plays in the lobby of the sausage factory.
For reference, here are the impeachment clauses from the Constitution:
Article 1, Section 2, Clause 5
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article 1, Section 3, Clauses 6 and 7
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.
Judgement in Cases of Impreachment 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, Judgement and Punishment, according to Law.
Article 2, 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.
Article 3, Section 1
. . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour. . . .
 Worth noting that the House is designed to be the first among equals in that is has the power of the purse.
About Nathan Allen
Founder of Xio Research (A.I.), Applied Magic (A.I.), and Andover (data). A.I. strategy and development leader at IBM. Academic training is in intellectual history; his most recent book, Weapon of Choice, examines the creation of American identity and modern Western power. Don’t get too excited, Weapon of Choice isn’t about wars but rather more about the seeming ex nihilo development of individual agency … which doesn’t really seem sexy until you consider that individual agency covers everything from voting rights to the cash in your wallet to the reason mass communication even makes sense…. Lectures on historical aspects of media, privacy/law, and power structures (mostly). Previous book: Arsonist.