Seth Abramson @SethAbramson Attorney. @Newsweek columnist. NYT bestselling author of a book on Trump's Iran policy, Proof of Conspiracy (Macmillan, Professor. Dec. 23, 2019 15 min read

(THREAD) It seems insane to get between two esteemed Harvard Law professors—@tribelaw and @NoahRFeldman—especially as I'm just a Harvard Law grad, not a professor there, but I'd like to detail a few of the ways in which Professor Feldman's analysis is off. 

1/ It's important to first understand something Feldman well knows: he is not—nor is anyone—going to explain to us, or anyone, "what the Constitution actually means." The number of issues on which the plain meaning of that text resolves an issue is nearly zero—and this isn't one.

2/ There have been relatively few impeachments in the nation's history, and dramatically less that involved a president, so the body of precedent in this area—historical and jurisprudential—is not substantial. The number of situations never before encountered is, thus, very high.

3/ Feldman can give us some "intent of the framers" information—which per usual is internally contradictory—and it's useful if we assume that the framers, idiots to a man, believed that their understanding of politics in the 1700s would retain *amazing* purchase in the year 2019.

4/ Mind you, at the time Feldman wants us to focus—the archive from which he draws resolution of a legal question in 2019—there wasn't even a federal criminal code, so words like "bribery" and "treason" and "crimes" and "misdemeanors" didn't mean anything like what they do today.

5/ So when Feldman tells you what "impeachment" meant in the 1700s, he wants you to believe it holds *steady* no matter what Congress may've decided in 1819, 1919, or 2019, even as words like "bribery" and "treason" became a legitimate subject for contemporary Congressional fiat.

6/ The truth is, we're in the 99% of constitutional events in which the resolution is a melange of original intent, historical usage, recent precedent, contemporary mores, situational context, procedural history, and the simple question of whether anyone's checked in with SCOTUS.

7/ The party making the argument in 2019 that you can do *whatever you want* on the assumption *eventually someone will check with SCOTUS and they'll decide* is... the GOP. So the *Republican* argument is, let Pelosi do what she wants, then let Trump sue and have it go to SCOTUS.

8/ Personally I don't like the GOP perspective on letting the House majority do whatever the hell it wants, as I think—*particularly* with impeachment—it creates a "justiciability" issue, in which certain issues can never get to SCOTUS in time for the resolution to be meaningful.

9/ So the question of whether the House can reserve naming House managers and presenting articles of impeachment to the Senate until the Senate sets rules for the trial the House managers will participate in—the only question before us—must be resolved by complex, hybridic means.

10/ The last point is key: Feldman wants to resolve a question not currently before us, which is whether the House can *indefinitely* withhold the naming of House managers and the presentation of articles to the Senate under certain circumstances. But that issue isn't "ripe" yet.

11/ SCOTUS will almost always, if it can, avoid hearing a case on the basis of it not yet being ripe; or, if ripe, refuse to hear it on a technicality; or, if ripe and it survives technicalities, rules as narrowly as possible. SCOTUS is generally *averse* to broad pronouncements.

12/ So when Feldman leaps forward to a legal question we haven't reached yet—and then, moreover, chooses only *one* means of reaching a resolution ("original intent") rather than the melange of methods he well knows SCOTUS uses—it does feel that he's playing a *bit* to the crowd.

13/ So a phrase like "...under the Constitution as it was understood by the framers and as it still should be understood today" is unserious. What he means is *some* framers felt a *certain* way—that he's interpreting—at the *time*, and *he* thinks that should be dispositive now.

14/ The truth is, we *don't* know what the "the framers" thought, beyond this: that they should ratify the text of the Constitution. Beyond that, you have scattered opinions by certain framers on why *they* voted as they did *at the time*, with no opinions at all on, say, *2019*.

15/ So much of constitutional "interpretation"—any situation in which the plain meaning of words hasn't changed between the 1700s and today, which allows us, in the rare cases *directly* addressed by the text, to proceed swiftly to resolution—is actually about *making analogies*.

16/ So for instance, we have an amendment to the Constitution forbidding illegal searches and seizures, but what was the opinion of the framers on whether that included infrared technology that lets the DEA *see through walls* to detect a pot-growing operation? You get the point.

17/ So unless we're in the rare case of constitutional interpretation that almost never arises but in which interpretation's comparatively easy—which we're not—anyone, law professor or otherwise, who blithely says "I'll tell you what the Constitution means" is being disingenuous.

18/ So let's put aside the esoteric opinions of certain framers on what they thought in the 1700s—having no idea what they'd think now—and focus a moment on analogies, as lawyers are trained to do. What are "articles of impeachment" analagous to? On this most agree—an indictment.

19/ I know a bit about criminal indictments, as I worked as a criminal defense attorney for years. So I can imagine a situation—as I've seen it—in which a prosecutor secures an indictment but it is immediately "sealed," so even the defendant's attorney has no idea that it exists.

20/ In that situation—a sealed indictment the defendant and his counsel don't know about—is the defendant "indicted"? Well, yes—of course. We can't imagine a situation, in the 1700s or now, in which a sealed indictment would be treated as *not existing* until it is made public.

21/ What if a prosecutor indicted someone, then refused to bring the case to trial immediately? Well, that would put us in the situation of...every indictment that has ever been brought in the United States. You *never* get tried *immediately* upon indictment. That'd be nonsense.

22/ In my experience, if an indicted defendant is incarcerated, s/he has between 4 and 7 months before a judge would even entertain a motion to dismiss on "speedy trial" grounds (you have a due process right to be tried, er, "quickly"—that is, in *criminal justice system* terms).

23/ If an indicted defendant is *not* incarcerated, it'll take even longer for a judge to consider a "speedy trial" dismissal because the defendant is not thought (whether this is fair or not is another matter) to be particularly harmed while awaiting trial if they're still free.

24/ Mind you, I'm only talking about when you can *file* a speedy trial motion—I'm *not* talking about whether you'll *win* that motion if the prosecution has a "good reason" for asking for a delay of the trial. So let's consider that instance with an indicted but free defendant.

25/ An indicted but non-incarcerated defendant who's facing a prosecution team beset upon by *extraordinary*—never before experienced—circumstances might well end up waiting 18 months for trial, following a series of "continuances" granted the prosecution by the presiding judge.

26/ Did you notice we're talking about *criminal* cases, i.e. ones in which—if you're dealing with a felony indictment rather than a criminal information for a misdemeanor—the defendant can go to *prison*? What if it's just a *civil*—fine-penalty—case? Or if it's just *politics*?

27/ So imagine an indictment (impeachment) of a nonincarcerated defendant (president) in a case that's not only not criminal but not even civil—it's politics, i.e. a matter of losing one's job—and the prosecution faces a *defendant who controls the evidence* and a *tainted jury*.

28/ In that situation, how long do you think a court would allow an indictment (impeachment) to remain active without being presented to a jury (thus initiating a trial)? I don't know...two years? I mean, the parties would have to come back to court regularly, but sure—two years.

29/ So we have a situation in which a president faces no punishment but losing his job, has few if any due process rights as it's not a criminal trial, is charged with illegally withholding evidence the prosecution needs, and the jury is tainted—and an election is 11 months away.

30/ So if you've been following along, you'll see where this is going. Why would the Supreme Court even *hear* such a case, if an election could render it moot and—mere *days* into the House-Senate standoff—we're not even *close* to anything resembling a "speedy trial" timeframe?

31/ There's every reason to think the Court would tell the parties to *try to work it out between themselves* and say the issue isn't ripe for intervention. So who—now—is taking the position the parties should "work it out"? The Democrats. Who says it's a ten-alarm fire? The GOP.

32/ This is one reason Feldman presents America with a state of affairs that doesn't match reality: he *assumes* that the Democratic plan is to *withhold the articles forever* and therefore *jumps ahead two years* (past an election!) to say what he thinks SCOTUS would say *then*.

33/ Or that's what Feldman *initially* did. With the Bloomberg article atop this thread, he took it a step further and asked (I paraphrase) "What if the Senate took proactive steps to—without negotiation—begin a trial *now* with articles it hasn't yet received? Would that be OK?"

34/ As Feldman sees—but most of his readers don't—that presents a very *different* situation, as it's a matter of something *happening*, not something *not* happening. The law treats a "commission" (an action) very differently from an "omission" (an inaction) and would here, too.

35/ Imagine a prosecutor has an indictment, a non-incarcerated defendant, a non-criminal/non-civil case, no speedy-trial problem, and a defendant who's tainting the jury and withholding evidence the prosecutor's entitled to... and then the jurors say they want to start the trial.

36/ In that situation, a prosecutor would have every right to seek an injunction from a higher court to keep the trial from starting—especially as the trial would have no indictments, no witnesses, no neutral jury, no prosecutors, no speedy-trial issue and no *reason* to proceed.

37/ Analogies are imperfect—that's why you usually don't decide a case based just on analogies. But what Feldman wants to do is use obscure, tangential precedents from the 1700s—coupled with *terrible* analogizing—to resolve *now* an issue that isn't ripe yet and may *never* be.

38/ But Feldman has a far bigger problem, as one of the chief rules of constitutional interpretation—also a rule of statutory interpretation—is that a court will never interpret *either* the Constitution *or* a statute in a way that creates a nonsensical result or interpretation.

39/ I'll give you a for-instance: under Feldman's interpretation, which he's bent over backwards to try to claim is as "fresh" as 1912, that vote the House took to impeach Donald Trump? It wasn't an impeachment vote at all. In fact, it had... *no effect whatsoever*. Says Feldman.

40/ Per Feldman, it's not a House *vote* that matters, it's...the Speaker of the House sending a courier across the hallway to the Senate with a letter. *That's* what *really* matters. Not a contested all-House formal vote, but a decision made privately by one member of Congress.

41/ Feldman's view is that if a tree falls in the forest and no one's around to hear, there wasn't a sound... or a tree... or a forest... or a reality in which a tree fell. That flies in the face of any analogy we could dream up for what an "impeachment" is, and creates nonsense.

42/ But let's move beyond analogies, as there *is* a way in which we *can* use plain-text constitutional interpretation here (thankfully)! The Constitution says, "the House shall have the sole power of Impeachment"—not "The House Speaker shall have the sole power of Impeachment."

43/ That is, the Constitution tells us "Impeachment" is effectuated by some action the House *as a body* takes—and via a "power" the House executes. And what "power" does the House execute "as a body"? It votes. It votes on things. Sending couriers is not an all-Congress "power."

44/ If the framers wanted a Speaker of the House to be able to *prevent an impeachment from even having occurred* by simply *refusing to send a courier across a hallway*, they'd have said so. They'd have granted the power of impeachment to a decision by the Speaker. They didn't.

45/ Feldman and Tribe *agree* the framers were concerned about rogue actors. It's unimaginable that they'd have placed the sole decision about whether to "perfect" an (apparently multi-stage?) impeachment process in the hands of *one man*—who could go rogue—rather than Congress.

46/ By the same token, Feldman's theory that whether or not an "impeachment trial" can/does start in the Senate is the decision of—here we go again—*one man* (the Senate Majority Leader) who could *go rogue* flies in the face of *everything* we know about what the framers feared.

47/ That's right, Prof. Feldman's interpretation of historical precedent—which he acknowledges has nothing on point for this situation—would make it possible for a Senate Majority Leader to start an impeachment trial...

...*even without an impeachment vote*. See the problem now?

48/ Before you opine (fairly) that that's not what Feldman is saying—he's saying *if* Pelosi can do what she's doing, McConnell *can* start a trial any time—my point is Pelosi's actions are oddly esoteric, whereas what Feldman is describing for McConnell would be *extraordinary*.

49/ The fact that there's *no* chance that if you had a lawless president (Trump), a *GOP* Speaker (McCarthy) and a *Democratic* Majority Leader (Schumer) Schumer could hold an "impeachment trial" whenever he wanted, tells you that Feldman's analogy to Pelosi's actions is *bunk*.

50/ The upshot: indictments can and do exist without trials for many months, sometimes years, and impeachments can and do exist without impeachment trials. While maybe at *some* point a defendant can move to dismiss an indictment—or a POTUS an impeachment—that's *years* off. /end

PS/ This is a basic debunking. A full one would deep-dive on Feldman's switcheroos—like slipping in the phrase "with the authority the House has given to her" as a way of ignoring that the Constitution says the "House" has the power of impeachment, not the "Speaker of the House."

PS2/ Just so, Feldman argues that there's no interstitial period between indictment (impeachment) and trial (impeachment trial) because...*Feldman Magic*, I guess. In *every other situation in American law* the period between indictment and trial is *critical* and *substantive*.

PS3/ Or how about how Feldman aims to will away the fact that "the Senate's rules say the trial starts 'when the managers of an impeachment shall be introduced at the bar of the Senate'"? Maybe he should acknowledge that this means *Congress has spoken on impeachment* since 1912?

PS4/ I agree with Feldman that Mitch could *try* to change Senate rules to start a trial now—a vote he'd lose, which is why he won't do it. And no Democrat has argued he can't *try* that. But if he did, the House could then seek an injunction from SCOTUS to stop any such "trial."

PS5/ The proper order of events—no Democrat has said otherwise—is 1) Mitch tries to change Senate rules (he'd lose); 2) if he wins, the House seeks an injunction with SCOTUS (it might win); 3) if it loses, Mitch takes a Senate vote on each trial rule (maybe losing on witnesses).

PS6/ I haven't heard *any* Democrat say "the House can hold articles of impeachment indefinitely with no recourse whatsoever—ever—for the Senate *or* the president." I don't believe @tribelaw is saying that either. So on top of everything, I don't know who Feldman's arguing with.

PS7/ Much of Feldman's Bloomberg piece undercuts his argument. That House manual saying, "The House may vote the impeachment and, after having notified the Senate by message, may direct the impeachment to be presented at the bar of the Senate"? It means impeachment *is* the vote.

PS8/ Or how about when Feldman argues that "impeachment" is *defined* as "a House-led prosecution in the Senate." So... the House has the "power of impeachment" during... a Senate proceeding? We devolve into absolute legal gibberish very quickly—as Feldman *must* see is the case.

PS9/ To be clear, the reason that there can't be a House "power" that's executed only during Senate session is that the Senate controls all proceedings in its chamber, meaning it could take a vote to "make all House members on the Senate floor go away for two years" if it wanted.

PS10/ Last thought: I've never heard a professor make an argument about the Constitution that includes, "The Florida Supreme Court actually addressed this issue in 1868..." Anyone who thinks anyone cares what Florida's Supreme Court says about federal impeachments is... mistaken.

NOTE/ I didn't address the below point here, but have elsewhere. One of *many* arguments the House would make in seeking an injunction before SCOTUS on a "forced" Senate trial is that it continues to investigate and litigate and may bring further articles.

CLARIFICATION/ Re: Tweet #7, the way we know this is the GOP argument is that it's why every GOP House member voted against impeachment and why no GOP senators have come out in favor of the obstruction of Congress article: they say Congress must *sue* Trump to get *any* evidence.

FUNNY/ Feldman's saying Trump isn't impeached—which means the Senate can't try him, which means Feldman is saying...

...Pelosi decides when/if the trial starts by sending over the articles—which she can do whenever she wants. Maybe Democrats should *adopt* Feldman's argument? 😂

FUNNY2/ I could see a situation in which the Democrats say, "Yeah—you know what? You're *right*. We *didn't* impeach him. We'd have to *send the articles across the hallway* to do it. And we'll do it whenever—let's see—we *damn well please*. How do you like our "leverage" *now*?"

You can follow @SethAbramson.


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