Leviticus, Trump, and the Impeachment that Never Happened

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House Speaker Nancy Pelosi, D-Calif., meets with reporters at the Capitol in Washington, Thursday, Dec. 19, 2019, on the day after the House of Representatives voted to impeach President Donald Trump on two charges, abuse of power and obstruction of Congress. (AP Photo/J. Scott Applewhite)

By Rabbi Yair Hoffman for 5TJT.com

Nancy Pelosi has thus far refused to forward the two articles of impeachment voted upon by the House to the Senate.  Her actions go against all precedent, but they also do something else.

What might that be?

The book of Leviticus can help shed light.  It can help bring out an important technicality in last Thursday’s events that was not fulfilled.  This is a technicality so important that a prominent Harvard law professor pointed out that there was not impeachment.

The book of Leviticus (14:34-36) states as follows:

When you will come to the land of Canaan which I give to you for a possession, and I will put the plague of tzara’as in a house.. And the owner shall tell the Kohen priest: ‘Something like a plague has appeared to me in the house.’ Then the priest shall command that they empty the house, before the priest comes to view the plague, so that all that is in the house be not made tamei -impure; then afterwards the priest shall come to view the house..

The owner of the house cannot declare it impure.  Only the Kohen priest can.  The owner can say “something like a plague” but not the words “a plague.”  This idea is clearly set forth in the Mishna, the repository of the Oral Law of Moses (Negaim 3:1 and 12:5), Rashi (in his comments on the verse), and in the works of Maimonides (The Laws of the Impurity of Tzaraas 14:4).

Harvard Law Professor Noah Feldman points out in a devastating op-ed:  “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. Both parts are necessary to make an impeachment under the Constitution..”

In other words, if the House does not send it further to the Senate – an impeachment has not yet occurred.

Feldman further writes:

“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.  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.”

Just like Tzaraas is not Tzaraas until the Kohen’s declaration, so too, lehavdil, impeachment is not impeachment until all the technicalities of the constitution are met.

“Impeachment” under the Constitution, according to professor Feldman, “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..”

Nothing less qualifies.  So far then – there were only two impeachments in American History – not three.

Noah Feldman is one of the brightest legal minds in the country.  He is a full professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. He is also the author of, “The Three Lives of James Madison: Genius, Partisan, President.”

The author can be reached at yairhoffman2@gmail.com




11 COMMENTS

  1. You’re grasping at straws. If this was an attempt to exonerate Donald Trump, you failed. Nancy Pelosi explained her stalling, she wants a fair trial. As long as senate majority leader Mitch McConnell says he will not be impartial, there is no point going forward with a kangaroo court. Nancy Pelosi knows her job, she behaves with integrity unlike her president….

  2. A point well made. Trump has NOT been impeached!
    The Democrats are engaged in theater, not legislation. They are hoping that if there is enough mud thrown, some will stick. However it looks like they are the ones now covered in their own mud.
    I doubt that there will ever be a trial in the Senate. At such a trial anyone can be called to testify on any subject and under oath. I can just imagine what it would look like if Obama, Clinton et al were question, in public, under oath about their activities. I wonder how many times the 5th amendment would be invoked? It is the fear of this that is behind Pelosi’s request to know what the rules of the Senate would be. Obviously the Democrats do not want an open inquiry but one limited to their articles.

  3. He is arguing a moot point here.
    The articles will get sent eventually, so for those who are sticklers, ”history” will ultimately reflect that he was impeached.
    For the rest of the country ”he was impeached by the house”
    It’s not really any different than it was before the vote, as everyone knew the vote was only a formality and a sham.
    Being as there is no practical difference between a president who has been impeached and one who hasn’t , the genius legal distinction is wasted genius.
    If anything trump is in a worse position now because he can’t get the issue closed. Which is exactly what the dems are holding the articles back for.

  4. In other words, Pelosi (an experienced politician, not so young radical) knows the Democrats have painted themselves into a corner. Their “charge” against the President is easily answered by proving, with great ceremony, that the previous administration in general, and Joe Biden in particular, engaged in corrupt practices and betrayed the Ukraine to Russia. When the defendant demans a show trial, the prosecution should flee in terror.

  5. amazing how people can make stuff up and people take it seriously.
    The constittion is there for all to see, it makes no mention of the need “to send t them to the senate”

    whats strange is Feldman acknowledges this

    “The relevant constitutional provisions are brief. Article I gives the House “the sole power of impeachment.” And it gives the Senate “the sole power to try all impeachments.” Article II says that the president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high Crimes and Misdemeanors.”

    Putting these three different provisions together yields the conclusion that the only way to remove the president while he is in office is if the House impeaches him and the Senate tries and convicts him.

    The provisions say nothing about timing. Taken literally, they don’t directly say that articles of impeachment passed by the House must be sent to the Senate. But the framers’ definition of impeachment assumed that impeachment was a process, not just a House vote.”

    Again As Feldman says “Taken literally, they don’t directly say that articles of impeachment passed by the House must be sent to the Senate.”

    soooooo, in other words, taken literally the constitution does not require what he assumes it should .
    shkoyach

  6. akuperma: Pelosi isn’t just an experienced politican, but when asked why there was no quid pro quo nor bribery in the articles, she mentioned she also pretends to be a lawyer, and does actually practice medicine on the side without a license! Don’t call her JUST a politican.
    Rif, did she act with integrity like Schiff’s secret hearings with people who aren’t even witnesses in a basement? Is that your standard? Or like Nadlars witnesses who answer their own questions and then invents his own rules of precedent violating the system. Ditto Schumer who now wants to run things on a very different system than the one he was last involved in too many years ago.
    Where’s the Russian Collusion in the articles too?

    Haimy, why not compare? Either it shows that the man-made system is so messed up it needs fixing, or it is not plain not just in either manner. Keeping the two in a vacuum doesn’t win over the Jew ignorant of Torah law to become more curious and start learning, nor does it correct the problems in this world. imo.

  7. Legally the House cannot be compelled to send the Articles of Impeachment to the Senate. If they do, once Chief Justice Roberts is seated the Senate will motion for the charges to be dismissed. If Chief Justice Roberts says no the Senate can call for a vote and override his decision based on their super majority. The House knows this, it’s been their long game since they know that the Senate will not vote to convict the President.