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Harvard Law prof who supports Trump impeachment and testified for Democrats says president isn't impeached until House tells Senate

'If the articles are not transmitted, Trump could legitimately say that he wasn't truly impeached at all'

Photo by SAUL LOEB/AFP via Getty Images

In the wake of Democratic House Speaker Nancy Pelosi (Calif.) saying she may delay sending to the Senate the articles of impeachment for President Donald Trump, a Harvard Law professor — who supports Trump's impeachment and testified for House Democrats on the matter — warned that the president isn't impeached until the House sends the articles to the Senate.

Pelosi indicated that impeachment managers who present the House's case to the Senate wouldn't be named "until we see what the process is on the Senate side, and we hope that will be soon. So far we haven't seen anything that looks fair to us, so hopefully it will be fair."

The professor's warning

But in his Bloomberg op-ed Thursday, Noah Feldman wrote that "some modest delay" in sending impeachment articles to the Senate "is not inconsistent with the Constitution," 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," he added. "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."

More from Feldman's op-ed:

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.

As for the headlines we saw after the House vote saying, "TRUMP IMPEACHED," those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn't impeached (past tense) until the articles go to the Senate and the House members deliver the message.

He added that if the House votes to impeach without ever sending the articles to the Senate for a trial, that would "deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides."

Feldman emphasized that should the House travel the latter route, it wouldn't be a direct violation of the "text of the Constitution. But the House would be acting against the implicit logic of the Constitution's description of impeachment."

What has Feldman said previously concerning Trump?

One might say that Feldman doesn't come across as a Trump fan. Indeed, he testified for the House Democrats two weeks ago and spoke in favor of the president's impeachment.

"The framers reserved impeachment for situations where the president abused his office. That is, used it for his personal advantage," Feldman testified. "And in particular they were specifically worried about a situation where the president used his office to facilitate corruptly his own reelection. That's, in fact, why they thought they needed impeachment and why waiting for the next election wasn't good enough.

"On the facts that we have before the House right now, the president solicited assistance from a foreign government in order to assist his own reelection. That is, he used the power of his office — that no one else could possibly have used — in order to gain personal advantage for himself, distorting the election, and that's precisely what the framers anticipated."

WATCH: Noah Feldman on why framers were 'specifically worried' about presidential abuses of power youtu.be

In addition, Feldman raised the issue of Trump's impeachment back in 2017, less than two months after the president's inauguration, in another op-ed for Bloomberg.

His piece concerned a tweet from Trump accusing former President Barack Obama of wiretapping his phones during the 2016 campaign cycle. Feldman said if Trump's "allegation is not true and is unsupported by evidence," it's "the kind of accusation that, taken as part of a broader course of conduct, could get the current president impeached."

One last thing…
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