Laurence Tribe: Ways not to think about the impeachment impasse

The greatest chief justice of the United States, by common consent, was John Marshall. In McCulloch v. Maryland, the 1819 decision laying down the foundations of our government structure, Marshall wisely insisted that “we must never forget that it is a constitution we are expounding.” That meant, among other things, that we should not confuse the Constitution for an abstruse “legal code” intended to be deciphered only by specially ordained experts. Its basic structures and provisions must be interpreted so as to “be understood by the public,” in Marshall’s words, to be consistent with “the common affairs of the world.”

In propounding their sometimes idiosyncratic constructions of the Constitution’s basic terms, a few current or former academic stars seem to have forgotten that most essential truth. Specifically, they would have us believe that, when the Constitution assigns to the House of Representatives “the sole Power of Impeachment,” those words “actually mean” that the House can “impeach” the president only by formally transmitting to the Senate its articles of impeachment, as English legislatures of the late Middle Ages transmitted them to the House of Lords.

But that is not how Congress has long understood the language. Begin with Chapter 27, Section 8, of the “Rules of Congressional Proceedings in Matters of Impeachment,” which expressly states, “The respondent in an impeachment proceeding is impeached by the adoption of the House of articles of impeachment.” Section 1 underscores the point by explaining that “the House votes to ‘impeach’ in the constitutional sense when it adopts an impeachment resolution and accompanying articles.”

Coupled with the Constitution’s Article I, Section 5, Rulemaking Clause, which gives each chamber the power to “determine the Rules of its Proceedings,” this language means that the president is impeached as soon as the House adopts articles of impeachment and declares him impeached.

And there is more.

Although Section 8 is explicit about the timing of internal House consideration of an impeachment resolution (“immediately” upon presentation of a “resolution” to impeach), the House Rules contain no such requirement with respect to the handover to the Senate. That is the interchamber question at issue here: When is the House to send the Senate a formal resolution informing that body of the official’s impeachment and notifying it of the “managers [who will] conduct the impeachment trial in the Senate” (Section 6)?

The House Rules unmistakably leave to the House itself the answer to that question. Nothing in the House Rules or in the Constitution prevents the House from setting its own timetable for delivering impeachment articles to the Senate.

The Senate’s rules are to similar effect. The “Standing Rules of Procedure and Practice in the Senate When Sitting On Impeachment Trials,” not revised in this respect since 1986, provide (Rule I) that the Senate is to initiate an impeachment trial only when it “shall receive notice from the House of Representatives that managers are appointed … to conduct an impeachment.” At that point, the secretary of the Senate informs the House “that the Senate is ready to receive the managers for the purpose of exhibiting such articles of impeachment.” Only then (Rule II) are the managers “introduced at the bar of the Senate [to] signify that they are ready to exhibit [the] articles of impeachment,” at which point the Senate must (Rule III) “proceed to the consideration of such articles” no later than “1 o’clock afternoon of the day … following such presentation.”

The upshot is that the Senate impeachment trial starts only when the Senate “receive[s] notice” from the House — and no sooner.

To be sure, the Senate might try to revise its own rules to provide that publication by the House of articles of impeachment (e.g., on the internet) automatically triggers a call by the Senate for the House to appoint managers — or even to proceed without House managers if none are appointed. Had the Senate’s rules so provided, Senate Majority Leader Mitch McConnell (R-Ky.) might have called on House Speaker Nancy Pelosi (D-Calif.) to name her managers right when the House impeached the president on Dec. 18. But those are not the Senate’s rules today. And, in any event, that kind of Senate intrusion into House procedure might itself violate the Constitution’s delegation to each body of the power to manage its own proceedings.

I could go on, but both chambers’ own rules — backed by the Impeachment and Rulemaking clauses of the Constitution, and coupled with common sense and ordinary usage — make two things absolutely clear: First, Donald Trump was impeached on Dec. 18, 2019, and second, the delay in initiating the president’s trial comes from the Senate’s standing rules, which require waiting for notice from the House before beginning.

It is utter nonsense to accuse Speaker Pelosi of constitutional betrayal for using that delay to shine a public light on how the Senate plans to proceed, with Majority Leader McConnell saying he will not follow his oath to do “impartial justice.” And instructing her that she loses political leverage by proceeding as she has takes real chutzpah when dealing with the most successful politician in modern congressional history.

Nothing that Speaker Pelosi is doing now is unconstitutional or difficult to understand. Indeed, it is Majority Leader McConnell who apparently intends to proceed in clear violation of the oath he will take when sitting in the impeachment trial — a constitutional oath prescribed in the 19th century and unchanged since. Those who expect Chief Justice John Roberts, when presiding over the Senate for that trial, to disqualify Sen. McConnell — or, for that matter, any Democratic senator who might have similarly betrayed a closed mind — are dreaming. No such event will occur. Nor will any court interfere with the Senate proceedings.

All the more reason for Speaker Pelosi to do exactly what she is doing, waiting cautiously while the Senate majority and minority leaders work to create a real trial — a trial with witnesses and documentary evidence — rather than a sham.

Both sides of this debate, however, can agree on one thing: It matters.

Some have dismissed it as a tempest in an academic teapot, saying it makes no real difference in the world. I cannot agree. Each side in today’s highly polarized politics can easily weaponize statements by the other for political gain. The White House already is considering adapting these arguments to claim the president hasn’t yet been impeached.

Which brings us back to the great Chief Justice John Marshall. As Marshall understood, constitutional arguments are not only the province of law professors. But when law professors proffer distorted interpretations of the document, they risk misleading the public. Our Constitution is part of American public life, and we must all strive to engage with it as faithfully as possible — all the more so when the stakes are as high as they are today.

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard and the coauthor, most recently, of “To End A Presidency: The Power of Impeachment.” He has consulted with House Democrats on their impeachment proceedings against President Trump. Follow him on Twitter @tribelaw.