Harvard Law Professor Noah Feldman began a recent Bloomberg News opinion piece by saying: “Call me old fashioned or naïve, but I think it is my job is to explain what the U.S. Constitution actually means, no matter who likes it or not.” As someone who has studied and judicially applied the Constitution for more than a half of a century, I think “it is my job” to take issue with Professor Feldman’s contention that: “[T]he framers’ definition of impeachment was a process not just a House vote” and disagree with his conclusion that if the articles of his impeachment are not transmitted by the House to the Senate, “Trump could legitimately say he wasn’t truly impeached at all.”
The Constitution provides that the House of Representatives has the “sole power to impeach” and whereas the Senate has the sole power to try those impeachments, I know of no Constitutional provision or Supreme Court holding that says there has been no “impeachment” until the House delivers the articles of impeachment to the Senate. Impeachment by our House of Representatives properly has been characterized as being similar to a grand jury indictment—a first step in the removal of a President. It is that—but it is much more. It can stand alone as an action taken by the House of Representatives if it finds that President has been guilty of the commission of “high crimes and misdemeanors.” Indeed, in the Senate rules the person sought to be removed is referred to as “the person impeached”
