One of the persistent irritations of today is that even notionally well-educated people are so ignorant, dismissive, or disdainful of our civic institutions. Unlike France or Germany we have a common law system. That means that the written law is only the tip of the iceberg of our legal system. Below the waterline is the vast body of legal principles and opinions going back hundreds of years.
At Bloomberg Noah Feldman articulates something I’ve been hearing for the last couple of days:
Now that the House of Representatives has voted to impeach President Donald Trump, what is the constitutional status of the two articles of impeachment? Must they be transmitted to the Senate to trigger a trial, or could they be held back by the House until the Senate decides what the trial will look like, as Speaker Nancy Pelosi has hinted?
The Constitution doesn’t say how fast the articles must go to the Senate. Some modest delay is not inconsistent with the Constitution, or how both chambers usually work.
But an indefinite delay would pose a serious problem. 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.
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.
That’s because “impeachment†under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.
Note that very little of that is in the written text of the Constitution. Essentially, he’s making a common law argument about impeachment.
I’m not comfortable in taking a position on how much the common law actually applies to impeachment. Additionally, what are the enforcement measures and penalties if one house of Congress or the other fails to satisfy its constitutional duties. John Marshall has made his decision; now let him enforce it! I’m even less comfortable with the executive branch compelling the members of Congress to do their duty.
I was a kid when Nixon resigned and I still recall being confused since I’d been hearing about nothing but impeachment on the radio during breakfast for months and then Nixon was leaving office but adults were telling me he wasn’t actually impeached. It was odd to a child’s mind (just grasping the concept “you can’t fire me, I quitâ€) but it didn’t take too long to catch on.
Now I’m struggling to explain this mess to my kids.
I think some of the argument flows from Federalist Paper Number 65, wherein Hamilton responds to criticisms about having the Senate exercising judicial power over impeachments. He discusses two alternatives: the Supreme Court and an independent national body created for the purpose.
The problem with the Supreme Court is that someone convicted of an impeachment “will still be liable to prosecution and punishment in the ordinary course of law.” Hamilton poses the issue of a conflict if the Surpreme Court were the decisionmaker for impeachment, and the ultimate reviewing authority for subsequent criminal proceedings.
The problem with an independent body, if drawn from the various states is delay, which would cause an “injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives.”
Because the Federalist Papers are believed to reflect contemporaneous views of the text, which were in a position to influence the state ratification debates, they are considered as aids to understanding the Constitution. I think these in particular reflect a concern for reputation that was larger than it is today, and a belief that the entire process is necessary to permit the passions of the community to be expressed and contained (either by removal or acquittal).