Trump's lawyers could argue he has not been impeached despite historic vote

Donald Trump’s legal team is considering whether House speaker Nancy Pelosi’s decision to delay sending articles of impeachment to the senate could allow the president to claim he has not actually been impeached despite the historic vote.

On Wednesday, the House voted to approve articles of impeachment against a sitting president for only the third time in US history, charging Mr Trump with abuse of power for allegedly withholding $391m in military aid to Ukraine in order to force that country’s president to announce investigations into former vice president Joe Biden and a conspiracy theory which posits that Ukraine – not Russia – interfered in the 2016 presidential election.

But shortly after the House had finished voting on both articles, Ms Pelosi told reporters she and her leadership team would not be transmitting them to the senate until it became clear senate majority leader Mitch McConnell would hold a fair trial.

“We will make our decision as to when we send it when we see what they are going to do on the Senate side,” she said, calling the impeachment of a president “a serious matter, even though the majority leader in the United States Senate says it is ok for the foreman of the jury to be in cahoots with lawyers of the accused”.

According to a person close to Mr Trump’s legal team’s thinking, the move by the House to decline to complete the process of appointing “managers” – House members who present the impeachment case to the Senate – and formally transmit the articles to the upper chamber, raised the possibility that the House has not yet impeached the president until transmission is complete.

Democrats, the person explained, “have kind of put themselves in a difficult spot” by declining to follow precedent by immediately allowing the Clerk of the House to deliver the articles of impeachment to the senate for consideration.

“You can’t have it both ways – you can’t be impeached but not impeached,” they said.

“If you’re impeached, the senate has exclusive jurisdiction, so if they have House rules they want to follow [before transmitting articles of impeachment] that’s great, but once impeached, the trial of that proceeding rests with the senate.”

The considerations of Mr Trump’s legal team was first reported by Bloomberg News.

Asked about Ms Pelosi’s decision, Mr Trump accused Democrats of “playing games”.

“They’re not allowed to do that,” the president said while in the Oval Office. He later suggested such a move could be unconstitutional, and claimed Democrats “don’t want to put [the articles] in because they’re ashamed of them”.

“I don’t feel like I’m being impeached because it’s a hoax, it’s a setup, it’s a horrible thing they did,” he continued, adding later that he would let the senate decide what to do.

Mr Trump also announced that White House counsel Pat Cipollone, who he said has been “fantastic” since taking over the role once held by Don McGahn, would take the lead in defending him on the senate floor.

A person familiar with the legal team’s thinking said it made sense for a White House lawyer to take a lead role in Mr Trump’s defence because the impeachment case stems from official acts, compared with the impeachment of Bill Clinton, in which a team of private lawyers took the lead in a case which stemmed from the Mr Clinton’s private behaviour.

Meanwhile, Mr McConnell savaged Democrats’ decision to impeach Mr Trump in remarks on the Senate floor, where he declared senators must acquit the president because House Democrats’ articles of impeachment were an attempt to “unsettle the foundations” of the American republic by removing Mr Trump from office on a “thin and partisan basis”.

The Kentucky Republican said the Senate’s “duty is clear,” and that the body “must rise to the occasion” by acquitting Mr Trump.

“Only one outcome that will preserve core precedents rather than smash them into bits in a fit of partisan rage because one party still cannot accept the American people’s choice in 2016,” McConnell said.

“It could not be clearer which outcome would serve the stabilising, institution-preserving, fever-breaking role for which the United States Senate was create and which outcome would betray it.”