Former Montana law professor and now the Constitutional Fellow at the Independence Institute in Denver, Rob Natelson, weighed in Sunday on the newest wrinkle in the impeachment of President Donald Trump.

After the vote in the U.S. House of Representatives in which every Republican voted no and virtually every Democrat voted yes, Speaker of the House Nancy Pelosi announced that the Present had been impeached, however, she has refused to immediately transfer the Articles of Impeachment to the Senate.

“What the Constitution says is that the U.S. House has the sole power of impeachment and the Senate has the sole power to try impeachment,” began Natelson. “What that tells me is that the President has been impeached. It also tells me the Senate has the right to try that impeachment at this point. The Speaker of the House has no power to dictate to the Senate how it’s going to try the impeachment. Her role in this is what we lawyers call ‘ministerial’. She should be serving essentially as a postal carrier and transmit it to the Senate. Holding up the articles like this has never been done before, but I don’t think it has any legal validity.”

There has been speculation by at least one ‘constitutional expert’ (Noah Feldman) that because the Articles have not been transferred, then there has been no official impeachment.

“At least one member of the ‘expert panel’ has opined that that may not actually be an impeachment, but he’s never actually done any research on impeachment in any of the scholarly journals, so I don’t put much stake in that opinion,” he said. “I think it’s clear that the Senate can go ahead and try that whether they receive the document itself or not. The Constitution says that the Senate is supposed to try all impeachments.”

Natelson said there is no time limit set within the Constitution as to when the Senate must try the impeachment.

“How it’s handled is really a matter of politics and judgment,” he said. “For example, if the Senate decided that they want to hear from a lot of witnesses, then that suggests it’s going to take awhile. If on the other hand the Senate, and there are some suggestions they may do this, will rely on the record already generated by the House, then the decision can be fairly quick, but how it’s tried is entirely up to the Senate.”

Natelson counsels against Senate Majority Leader Mitch McConnell moving directly to an acquittal of the President, which has been suggested as a possibility.

“I don‘t know if that’s possible, because it’s never been done before, but I would counsel against that,” he said. “The Constitution says the Senate is supposed to try the impeachments , and that implies that they’re not supposed to dismiss them out of hand.”

Natelson said there is a possibility that one of the two articles might be not actually be an impeachable offense.

“The answer is complicated a little bit by the fact that there are two Articles of Impeachment,” he said. “The second article is ‘Obstruction of Congress’. I think you can make the case that on the face of it, is simply not an impeachable offense. The President was willing to submit Congressional subpoenas to the court, and that there’s a good faith legal argument over whether the courts have jurisdiction. So, the Senate could simply take the position that even if all the facts alleged by the House of Representatives are true, it’s simply not an impeachable offense, and dismiss.”

Natelson addressed the first Article of Impeachment that the President abused his trust.

“While Abuse of Trust is not by itself an impeachable offense, the impeachable offense is what we would call the fiduciary duty of ‘self dealing’,” he said. “If all the facts are demonstrated in that article, then that would be an impeachable offense. I think the Senate really needs to take testimony on that first article.”

The House is now in recess until after the first of the new year.

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