Trump Lawyers Ask If Pelosi Delay Means He Isn’t Impeached Yet

(Bloomberg) -- Lawyers close to President Donald Trump are exploring whether House Speaker Nancy Pelosi’s decision to temporarily withhold articles of impeachment from the Senate could mean that the president hasn’t actually been impeached.

The case is a rhetorical one following Wednesday night’s vote to impeach the president on two articles. The U.S. Constitution grants the House of Representatives full authority over impeachment. But the argument is part of an effort by the White House and Senate Republicans to maximize their leverage as lawmakers debate when and how to conduct a trial on charges that the president abused his power to solicit an investigation into political rival Joe Biden, and obstructed the congressional investigation into the matter.

The White House legal theory, according to a person familiar with the legal review, is that if Trump has been officially impeached, the Senate should already have jurisdiction. Backers of the theory would argue that the clause of the U.S. Constitution that gives the Senate “the sole Power to try all Impeachments” indicates that the impeachment isn’t formalized until the House reported the charges to the upper chamber.

Speaking Thursday in the Oval Office, Trump said it was “unconstitutional” for Pelosi to not to submit the articles of impeachment to the Senate.

“To me, it doesn’t feel like impeachment,” Trump added.

The Constitution doesn’t specify how quickly the articles must be sent to the Senate, according to a Bloomberg Opinion column by Noah Feldman, a law professor at Harvard University. “An indefinite delay would pose a serious problem,” he wrote.

“The House must actually send the articles and send managers to the Senate to prosecute the impeachment,” he said in the column. “And the Senate must actually hold a trial.”

Laurence Tribe, a constitutional law professor at Harvard, tweeted that Senate rules requiring the House to immediately present articles of impeachment would also be unconstitutional.

“It’s up to the House when and how to prosecute its case in the Senate,” Tribe said.

Pelosi suggested Wednesday night that she might wait to appoint “managers” who present the case for the president’s removal to the Senate until Majority Leader Mitch McConnell, a Kentucky Republican, commits to rules that would ensure a “fair” trial.

The gambit, which was advocated by liberals within Pelosi’s caucus, appears to be an attempt to pressure McConnell to call current and former White House officials who declined to participate in the House investigation to testify. Senate Republicans have indicated their preference is for a short trial, without witnesses, followed by a quick vote to acquit the president.

Trump on Thursday said the maneuver was evidence Pelosi was “afraid” to present the impeachment to the Republican-controlled Senate, where he is expected to be acquitted.

And Josh Holmes, a former chief of staff to McConnell, called Pelosi’s decision a gift to Republicans.

Pelosi said on Thursday that she didn’t “care what Republicans say” and wasn’t prepared to name impeachment managers “because we don’t know the arena that we are in.” She pointed out that under House rules adopted for consideration of the impeachment articles, she could call up a resolution naming those people at any time, with no expiration.

To contact the reporters on this story: Jennifer Jacobs in Washington at jjacobs68@bloomberg.net;Justin Sink in Washington at jsink1@bloomberg.net

To contact the editors responsible for this story: Alex Wayne at awayne3@bloomberg.net, John Harney, Joshua Gallu

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