There is a necessary nexus between the House’s impeachment power and the Senate’s power to hold an impeachment trial, but it’s not the nexus that Prof. Noah Feldman imagines
Feldman has argued that it it weren’t the case that a president isn’t impeached until the Senate receives the articles of impeachment, then the Senate could conceivably conduct a trial without having anything to do with the House at all. 1/10 tinyurl.com/wq4op7w
Question: how many things are wrong with this cockamaime argument?
Let me count the ways…..
Actually, there are lots, but here are a couple. 2/10
The Constitution does not stipulate that the articles have to be sent over immediately (indeed it doesn’t specify when they have to be sent over at all). 3/10
But if the nexus between impeachment in the House and trial in the Senate were as described by Feldman, the Senate could preempt the House by starting its own trial one second after the passage of the articles and before House managers could even get to the Senate! 4/10
The history of English jurisprudence, the framing of the Constitution, the wording of the Constitution, and common sense makes it perfectly clear that there is a necessary nexus between the impeachment power of the House and the Senate’s power to hold a trial. 5/10
It’s just not the nexus that Feldman has imagined. 6/10
The Constitution doesn’t say when the articles have to be sent over (though it clearly has to be done within the same Congress), but it is clear that they must be sent over sometime (within the same Congress). 7/10 tinyurl.com/qmyffrc
That is why, among other things, the Senate cannot hold a trial independently of the House after the House passes the articles.
A trial has to have one or more prosecutors as well as a defendant! 8/10
And the Constitution makes it perfectly clear that the prosecutors come over from the House.
The Senate is the judge and the jury in an impeachment trial, but it cannot be the prosecution as well! 9/10
Bas.
@SethAbramson has gone round and round tonight arguing against @NoahHFeldman in a very long thread, but he’s wasting his time.
Feldman is obviously wrong, and he has only succeeded in embarrassing himself in this matter. 10/10
