Above: John Marshall’s Marbury v. Madison suggests impeachment is effective without delivery to the Senate
This article first appeared in The Hill.
Some legal commentators argue that the impeachment of President Trump is not valid until Speaker Nancy Pelosi delivers the articles of impeachment to the Senate. Hence, the argument goes, the Senate cannot try the president until after they are delivered.
With all due respect, I think this is wrong: As one who has studied, researched, and published on the entire Constitution and constitutional history (including impeachment) for decades, I believe the argument is based on a misunderstanding of how the Constitution works.
The Constitution states that the House of Representatives has the “sole Power” to impeach and the Senate has the “sole Power to try.” The Constitution recognizes the office of Speaker of the House, but she is not the House itself—she is only an officer. Nothing in the document gives her a presidential-style veto. Nothing grants her any authority to block, or even suspend, formally-adopted bills or resolutions.
On the contrary, if the Speaker holds back a duly-adopted impeachment resolution as a way to influence Senate trial procedures, she is unconstitutionally interfering with the Senate’s “sole Power to try all Impeachments.”
Additionally: The Constitution specifies those cases in which formal notification is necessary for an action to be valid. The framers no doubt considered it important to do so. This is because most were lawyers and they knew that under their legal system some documents were valid as soon as they were signed while others had to be formally delivered to a particular recipient.
Here are some examples of constitutional transactions that require formal delivery or notice to be valid:
Before a bill becomes law, it must be “presented” to the President for his signature. If he chooses not to sign it, he must “return” it with objections, but if he doesn’t return it within ten days, it usually becomes a law without his signature. Most orders and resolutions must be “presented” to the president for his signature. Presidential electors in each state must “transmit” their votes to the nation’s capital. State legislatures seeking a convention for proposing amendments must make “Application” to Congress for that purpose. Under the 25th amendment, procedures for dealing with presidential incapacity require that various notices be “transmitted.” And so forth.
But there was a well-recognized legal principle during the Founding (and today) that if you list certain items, that list implies whatever is not included is therefore excluded. In other words, “if it ain’t there, it ain’t there.”
Pointedly, the Constitution excludes any requirement that the House formally notify the Senate that it has passed articles of impeachment, even though in prior (English) impeachments formal notice generally was given.
Some case law confirms this conclusion. The courts tell us, for example, that if a state legislature ratifies a constitutional amendment, the ratification is valid without any formal notice or proclamation necessary. This is simply because the Constitution doesn’t require it.
The very first case most law students study when they begin their basic course in constitutional law—Marbury v. Madison—tells us the same thing.
One of the issues in Marbury v. Madison was this: The Constitution requires that the president “Commission all the Officers of the United States.” Suppose the president nominates an officer, the Senate approves the nomination, and the president signs the commission. It is customary to deliver a commission to the new officer, but for some reason delivery fails. The Constitution is silent on the subject. Is the commission effective without delivery?
Writing for a unanimous court, Chief Justice John Marshal said: Yes, it is effective. Delivery and notification are not necessary. Marshall wrote:
The answer to this question seems an obvious one. The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him. . . .
The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then passed. He has decided. . . . This appointment is evidenced by an open, unequivocal act . . . .
In voting for the articles of impeachment, the House of Representatives carried out what the Constitution describes as a “sole Power.” In Chief Justice Marshall’s words, the House “has decided . . . by an open, unequivocal act.”
The Senate may proceed to trial.
There is an additional point I did not include in The Hill article: If the Speaker of the House can suspend or veto the action of the entire House by failing to deliver a document, then can the presiding officer of the Senate exercise a similar veto? For example, if the Senate convicted the president, could the Chief Justice (who presides over the trial) spare the president by simply refusing to deliver the conviction to him? Or, once the trial was over and the Chief Justice handed the gavel back to Vice President Pence, could Pence effectively veto the conviction by not delivering the document?
Of course not—and the Speaker doesn’t have that constitutional power, either.