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 firstname.lastname@example.org