Impeachment

No, I'm Serious. The Roberts Court Won't Save Trump from Impeachment

Sometimes Dershowitz gives really bad advice

|The Volokh Conspiracy |

President Trump likes to imagine that the Roberts Court will get him off the hook if the Democrats ever decide to pursue impeachment in the House of Representatives. I've written before that he is quite wrong about that.

Last week, Trump repeated the claim and Alan Dershowitz promptly offered an argument in support of the president's assertions. Over at Lawfare, I have an extended response on why Alan Dershowitz is quite wrong about the prospects of judicial review of a presidential impeachment.

Worse yet, Dershowitz is offering the truly reckless advice to the president that he should refuse to leave office if he is impeached by the House and convicted by the Senate on the hopes that the Court might bail him out. This is dangerous nonsense and really would provoke a constitutional crisis.

From the post:

To empower the justices to sit in judgment of whether Congress was using the impeachment power correctly would be to turn the Constitution on its head. It would transform a constitutional system that ultimately rested on the people into a constitutional system in which everyone ultimately answered to the judges. If we were really to worry about checks and balances, then we should pay attention to the checks and balances that the framers built into the impeachment power itself.

Read the whole thing.

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  1. Isn’t the issue first if the Senate convicts? If not, what is there even left for SCOTUS to do?

    It’s like if a grand jury indicted someone and a petit jury then acquitted. An appellate court would literally have nothing to do at that point.

    (Not that SCOTUS would have a basis to do anything anyway — this is purely a political act.)

    1. Dershowitz’s argument assumes conviction by the Senate.

  2. Admittedly this really is a non-issue right now because the Senate isn’t going to convict Trump – if something does lead to the Senate (majority Republican) convicting Trump one can safely assume it’s because Trump actually did something conviction-worthy.

    That said, the issue at hand really goes to what I will call the pre-Constitutional history of this county, namely the British parliament that our founding fathers grew up with and did use as a model. I’ve often felt you can’t understand the 1776 American Revolution without study of the English Civil War and the 1688 Glorious Revolution. The latter of which established that parliament can determine who the monarch is. They can’t directly control some of the things the monarch does (ie certain executive acts), but they do get to establish who the monarch IS, including possessing the power to remove the monarch.

    I tend to feel this is the best way to view the Congress/President relationship because it’s how the Founding Fathers are most likely to have viewed it. Yes, they’d studied the Roman Republic (and Athenian Democracy) and such things, but their direct experiences were under the British system. While they did want to limit the power of parliament/congress through established powers in a written constitution, when considering the relationship between the branches Congress probably has the ultimate hand. Not the supreme hand, and there is a separation of powers.

    Congress can’t really order the president to, say, assign army company X to Fort A instead of company Y, or (as another post pointed out) order the executive branch to continue a prosecution. They can incentivize an act, and if the executive doesn’t do the act potentially remove the executive agent through impeachment, but they can’t directly act.

    If, however, 2/3rds of both houses of Congress chooses to impeach and remove the president, they get to decide what the grounds are for that. And that could, in theory, be something like ‘we believe the president to have become mentally unstable” which could be used as a political weapon. But if such a situation arose it probably wouldn’t be much of an issue because for 2/3rds of both houses to align would either require some serious action on the president’s part or enough of a political reshuffling that the US would already have become a de facto one party state.

    1. “If, however, 2/3rds of both houses of Congress chooses to impeach”

      My understanding is that this is not correct. A 2/3 majority is required in the Senate to convict, but the constitution does not specify a 2/3 majority for the House to issue a bill of impeachment. If the House did require 2/3 majority, that would mean that 27.9%(55) of House Republicans would have to vote to impeach.

      In that case, it would be highly unlikely for a bill of impeachment to come out of the House.

      1. You are correct; I was writing off the cuff and got the conviction and impeachment standards confused.

        1. If it had been 25th Amendment removal you would have been exactly right.

        2. No, you didn’t get them confused. Impeachment requires a simple majority and conviction requires a super majority. You explicitly claimed that both require a super majority.

    2. That said, the issue at hand really goes to what I will call the pre-Constitutional history of this county, namely the British parliament that our founding fathers grew up with and did use as a model.

      Baron, are you presuming a bit there? After all, the founders were in revolt against that model. I do not mean to suggest that the founders intended negation of every jot and tittle of their English heritage. I do think it is incumbent on folks making a case such as yours (people do it all the time), to show, by actual historical sources recorded at the time of the founding, in which specific instances the founders chose for continuation which specific bits of Great Britain’s former customs. Otherwise, I suggest the intervening revolution, invention and establishment of an entirely novel sovereign system, and the decree by that sovereign, acting at pleasure, of a written constitution, ought to be regarded as the nation’s true points of beginning, to the detriment of foregoing history.

      1. You’ll pardon me I hope for not wanting to write a multi-page historical essay on the topic but no, I don’t think it’s presumptuous. They were in revolt against Britain but really in some ways “revolution” is kind of a misnomer because there’s considerable evidence that the Founding Fathers were more annoyed they, personally, lacked representation in the system than angered at the function of the system per se.

        Basically the British system of the period was rotten as to the selection of MPs – this wouldn’t be fixed until the 1832 Reform Act. As a result large swaths of Britons lacked direct MP representation, something that included both the residents of cities like Manchester and Leeds as well as the entirety of the American colonies. This is the basis of the cry “No Taxation without Representation”. They weren’t arguing Parliament lacked the inherent authority to tax, they were arguing Parliament lacked the authority to tax because the American colonists did not have representation IN Parliament.

        Of course the Founding Fathers were not a homogeneous unity. On one extreme, Alexander Hamilton rather notoriously wanted retention of a monarchy. But they all were subjects of the British crown prior to the revolution and there really isn’t much indication they wanted an absolute break with the past. As one example, every colony deliberately incorporated British common law up to July 4, 1776 into their own legal systems.

        Again this isn’t to say the new colonists wanted a congress free from any limits. That was why there was a written constitution for one thing. And why there were checks in the system such as requiring a 2/3rds senate vote for conviction.

        1. Baron, you seem to be using the sort of airy reasoning by which folks in other circumstances develop systems to analyze baseball, and use them to conclude that Al Kaline was a better player than Babe Ruth.

  3. I have a different question:

    With the House under the control of one party and the Senate in control of the other.

    Let’s say the House votes out a bill of impeachment by a nearly party line vote, with only a handful of Republican Reps voting in favor of impeachment.

    Is the Senate actually obligated to hold a trial or can the Senate tell the House to go pound sand?

    1. MatthewSylfield, I’ve wondered the same, and obviously there’s no established precedent. But my thinking is that the impeachment of the President is special, and different from any other impeachment, in that the Constitution calls for the Chief Justice to preside at the trial.
      For any other impeachment, let’s say of a District Court judge, the Senate can refer the articles of impeachment to a committee, take as long as they want, even ignore completely. Alternatively the Senate doesn’t need to conduct a trial in full session; it can accept the report of its committee, and vote to convict. That has been done, and SCOTUS has upheld that. The Senate is in charge of its own procedures.
      But with the Chief Justice designated as presiding officer, he will at least give the House an opportunity to present its case before the Senate can summarily dismiss.

    2. I concur with @cmcc_aus.

      I would also think that if we analogize it to criminal law, the House is the “executive” with the power and authority to bring charges. The Senate is “the Jury.” A jury can’t just decided not to hear a case. The form/procedures can be debated, but I don’t think they can just do nothing like with Presidential nominations.

      1. What remedy would there be if the Senate refused to allow a trial? An no, I don’t think elections count as a “remedy” here.

        1. I said procedures are debatable. It doesn’t have to be a trial as such but I don’t think they can do nothing. The remedy would likely be a writ of mandamus and then contempt if ignored.

    3. The impeachment process is a political question. The manner which the Senate handles the process is entirely held by the Senate.

      If the Senate doesn’t want to consider the trial then they can tell the House to pound sand.

    4. The current senate impeachment rules require them to convene and begin the impeachment trial the day after the managers from the House present the articles, and to continue every day except Sundays until the verdict is rendered.

  4. Yup. In order to remove the President from office, the constitution rightly requires a broad consensus that he needs removing. But there’s an election next year.

    1. There always has been in the past, and incumbents have always honored the results.

      1. Until 2016, when Democrats just about blew a gasket in claiming that Trump wouldn’t accept the results of the election if he lost. Turns out, they were projecting again, and it was them that wouldn’t honor the results when they lost. And they still haven’t accepted the results. Instead, we have a shocking display of derangement with a harebrained Russia conspiracy theory taking over people’s minds and finally ending with a push to impeach Trump for things that were done by the Democrats.

        1. Yes, ML, once you assume bad faith in the other side, they sure do look bad!

          You’re the one ranting about the deep state and coups in every thread, if you want to talk about deranged.

          1. But is he wrong?

            Have any republicans in recent decades actually claimed they were the rightful winners, but for the perfidious fraud of their opponents?

            I’ve seen Abrams in GA explicitly say that, and Clinton implicitly say that, but are there any similarly situated republicans?

            Note that the claim is about not accepting election results – their claims can be true and still run afoul.

            1. I mean, you have Republicans on tape talking about disenfranchisement as a way forward so I’m not surprised that you get some Dem pushback.

              Of course, you have Trump claiming he won the popular vote were it not for all the illegals. But I don’t know if we’re supposed to count his tweets as actual claims these days?

              But you also don’t see Dems staying in office because they were illegitimately turfed out, which is what we’re talking about here, and which ML claims is what’s going on with the investigations of Trump on accounta he knows the real truth and motives behind everyone from Trump to Nadler to Benjamin Ghazi.

              1. On day one after the election, folks were claiming that Trump was a secret Russian agent who stole the election through foreign interference. It’s obvious to everyone else that these people rejected the results of the election and latched onto a harebrained conspiracy theory to explain it away, a conspiracy theory which was never supported by a scintilla of evidence as anyone could see and Robert Mueller has now confirmed.

                1. 1. I doubt Trump stole the election, but Mueller came up with a wealth of evidence that the Russians interfered in the electoral process, and that’s a matter that all Americans should be concerned about. I’m not trying to delegitimize his election; I just want to prevent that kind of thing, and Congress is absolutely right to investigate to figure out what happened. This country should be taking steps to make sure it will not happen again, and this President seems totally uninterested in doing so.
                  2. Mueller was unable to find evidence that Trump was collaborating with the Russians, but given the number of people high up in his campaign who engaged in communications with the Russians about the election, the idea that there was collaboration is hardly a harebrained theory. And Mueller never said that Trump DIDN’T collaborate with the Russians; the fact that he couldn’t find evidence of it doesn’t mean it didn’t happen. The Mueller investigation was controlled by the executive branch, which in turn was at least in part controlled by the Chief Executive. At a minimum, Congress needs to make its own evaluation of the evidence that was gathered by the executive branch, which means that the executive branch needs to provide that evidence to Congress.

                  1. “given the number of people high up in his campaign who engaged in communications with the Russians about the election”

                    Here’s the thing: Some of those “contacts” appear in retrospect to have been attempts to entrap the campaign or manufacture the appearance of some sort of collusion. That Russian lawyer, Natalia Veselnitskaya, who met with Trump Jr., for instance? She met with Fusion GPS’s founder both the day before AND the day after meeting with him.

                    “And Mueller never said that Trump DIDN’T collaborate with the Russians; the fact that he couldn’t find evidence of it doesn’t mean it didn’t happen.”

                    That’s not how it works. Presumption of innocence. Just because we can’t find evidence you’re a serial killer of homeless persons doesn’t mean you don’t do it. We have to find some evidence, or lay off you.

                2. It’s obvious to everyone else

                  Always the sign of a bang-up argument.

                  Appeal to ‘it’s obvious’ because you’re not coming from a place of fact, but of narrative.

                  1. Wrong. This is coming from a place of rock solid and well fleshed out facts. I don’t have time to write you a book, but history will be written eventually then maybe you’ll wake up. In the meantime, as I said, Robert Mueller confirmed: no evidence.

          2. The democrats have worked hard to earn the presumption of bad faith, smear, and hypocrisy. What they did to Kavanaugh is a stain that will remain for decades.
            Several things are often true, and are in our Nation’s current crisis. The Russians did make an effort to disrupt our 2016 election; but that is nothing new. The Russians and others try to influence our elections; and have for decades. The FBI and our intelligence agencies were investigating that.
            The impetus for the special counsel, the critical factor, was the scurrilous Jim Comey. His sanctimonious machinations caused Rosenstein to have no good option other than to appoint a special counsel.
            Of course, democrats complaining about Trump firing Comey is the definition of hypocrisy and bad faith. Further, democrats accusing Jeff Sessions of being in a conspiracy with the Russians was hypocrisy and bad faith also.
            It is also true, that innocent people have been so incensed by what they rightfully see as the injustice of having to go through the humiliation, intrusion, smear, cost, and turmoil of an investigation that completely disrupts their lives, the lives of their family, and the lives of their friends, co-workers and colleagues. As we witnessed being convicted of a crime when there was no underlying crime does happen. We all know about Martha Stewart and Scooter Libby; but then many believed those prosecutions were also examples of bad faith by overzealous prosecutors.
            So, it remains to be seen if the democrats will impeach, or try to smear the president until the election; but the truth is either option will be done in bad faith.

            1. Considering you’ve written books about killing Democratic politicians and dusky hordes, I don’t think your presumption came from Kavanaugh. Or anywhere that isn’t pure tribalism.

    2. You think due to some penumbra of broad consensus, the SCOTUS can set aside an impeachment conviction?

  5. Good article.

    It suggests a corollary which went unmentioned—and a crisis in the offing. If, the sole power of impeachment belongs to the house of representatives, and if the sole power of trying impeachments belongs to the senate, doesn’t it follow also that the courts have no power to review anything which those bodies do in the course of exercising their sole powers? Why is everyone constantly discussing how Trump will bog down house investigations in lawsuits? Seems like the answer to that ought to come from the courts themselves, saying, “Any investigation pursuant to a question of impeachment is something over which the courts have no jurisdiction.”

    That, of course, would leave enforcement against presidential defiance in an impeachment investigation to means the house is empowered to use, principally the power of the purse, and the punishment of contempt. It is not at all difficult to imagine a president attempting to defy those means, and deploying armed forces of the executive branch to do it. What then?

    Suppose that the sergeant-at-arms of the house came with deputies to arrest for contempt administration officials who defied subpoenas. And Trump ordered federal marshals, or the secret service, or military personnel to defend the targets, and thwart the arrests. Wouldn’t that be as clear-cut an instance of a high crime as could possibly be? So clear-cut, in fact, that an acquittal in the Senate on any resulting impeachment ought to be inconceivable. There could be no disagreement on the facts, or on their import—that the president to protect himself had attempted an overturn of the impeachment power.

    Defiance of the impeachment power ought to be the quickest, surest, route to removal from office which the constitution affords. But who supposes that this Senate would do its duty in such a case? No one. The apparent disloyalty to the constitution of the Republican senators has landed this nation in a sorry pickle.

    1. acquittal in the Senate on any resulting impeachment ought to be inconceivable.

      Very poor word choice, Stephen.

      1. But doesn’t the word mean what I think it means?

        1. Well said

    2. “doesn’t it follow also that the courts have no power to review anything which those bodies do in the course of exercising their sole powers? ”

      No. The power to impeach is the power to impeach, and ONLY the power to impeach. It’s not the power to do anything that might be convenient along the way, such as commanding that people self-incriminate.

      Even when prosecuting an impeachment, the Bill of Rights is in play.

      1. It’s more complicated than that too.

        An impeachment vote is un-reviewable because the sovereign (us, the People) granted that power to the House directly. Other actions, such a subpoenas, are based in statute, and the exercise thereof has to be in both compliance with the constitution (above) and the statute itself.

        Example: congress passes a law that any member of the congress has the power to request any taxpayers tax forms. Congressman X asks for person Y tax forms. The IRS says “we’ve received your request, and deny it because the statute only empowers you to request it, not to obtain it.” The meaning if the statute then has to be decided by a court – did the enacted law just empower a request to be made, or did it entitle the requestor to the documents requested?

      2. You don’t get any necessary and proper powers along with impeachment?

        Come on, Brett, that’s ridiculous formalism to the point that it effectively writes out impeachment for anything but a fir of pique.

        1. The N&P clause explicitly applies to legislation, Sarcastro.

          And, in any event, it’s not the “convenient, and, eh, whatever” clause. Congress is perfectly capable of attempting impermissible means to a permitted end, and getting shot down by the courts, though it doesn’t happen nearly often enough.

          1. Yeah, I didn’t capitalize it. But you’re saying the equivalent of ‘Congress can pass laws, but nothing says they get to publish them!’

            Impeachment powers without investigatory powers are a nullity. Except for spite, as I noted above.

            Nixon and Clinton both got beefy investigations.

            1. Sure, they’ve got investigatory powers. Just not unlimited investigatory powers. I’m saying it’s possible for them to over-reach in a manner that might be judicable, not that any investigation at all would be over-reach.

              Though, they’re about to vote on declaring Barr in contempt of Congress for not violating grand jury secrecy, so over-reaching might be pretty close to inevitable at this point.

  6. It is, frankly, sad to see Alan Dershowitz nowadays. I am too young to have grown up watching Willie Mays playing baseball. But my dad would talk about how amazing he was (for years and years!)…and how awful it was watching him in his last season or two. Not a pale shadow of what he once was. Far worse. A shambling simulacrum, with each painful swing, and each painful step in the outfield a reminder of what had been, and what was now lost forever.

    I do not mind defense attorneys whoring themselves for their clients. That’s part of the job description. But Dershowitz is pretending to be objective, and–again–it’s really painful to watch him out there. I think that, on many points, there are strong defenses Trump (et al) can raise. But it’s depressing hearing from the idiot wing…all that tells me is (a) The speaker is an idiot, or (b) The speaker knows he’s saying something stupid, but his intended audiences are idiots and they’ll be receptive to this blather.

    Dershowitz was, in his prime, brilliant, fearless, and someone who (IMO) did honor to the legal profession. To see him as a pathetic whore, a decrepit copy of what had been . . . it makes me sad. Time marches on, time is the enemy of all men, and I suppose that, 30 years from now, people may be saying the same things about me.

    It’s all very very sad.

    1. “Dershowitz was, in his prime, brilliant, fearless, and someone who (IMO) did honor to the legal profession. To see him as a pathetic whore, a decrepit copy of what had been…”

      Yeah, he provided amazing commentary during the Clinton impeachment. Many people are less impressed now.

      1. Basically because his commentary doesn’t do a 180 when it’s a Republican being threatened with impeachment. Some people find that intolerable.

        1. That’s only true if you see Clinton as a direct parallel to Trump. I’d venture you and I see the situations as quite different, albeit in different directions.

      2. This is hilarious. So Dershowitz basically had the exact same legal opinions in the 90’s, and lunatics like santamonica811 loved it then but hate it now and are talking like this about him?

  7. The Dershowitz piece is not as radical as this article makes it sound. All Dersh said was that President Trump could ask SCOTUS to review the impeachment, and if they decline, they decline. Simply making that request would not be a “Consitutional crisis”.

    https://thehill.com/opinion/white-house/446394-dershowitz-supreme-court-could-overrule-an-unconstitutional-impeachment

    1. And he does raise an important point: The impeachment trial is, constitutionally, presided over by the Chief Justice of the Supreme court. That means it isn’t entirely a non-judicial matter if the President raises procedural complaints.

      1. My sense, and I may be wrong, is that this talk isn’t about procedure but substance. That is whether what he would be impeached and convicted of is substantively a high crime or misdemeanor. Then the question is whether this is a limitation just like any other that a Court can review and interpret, or whether the Constitution has committed that determination to the Senate making it a political question (like whether state governments are republican). I think it’s the latter, but I am not so sure of that to have the indignation at the thought as most scholars.

        I know Dershowitz brought up procedure and others have talked about it, but I think it’s pretty clear that when Trump is bringing it up he has substance, not procedure in mind.

        1. I think there is both here. But you’re right, Dershowitz mentions the potential crisis, reviewable by SCOTUS, if a President is impeached and convicted “without evidence of high crimes and misdemeanors.”

          1. So now you want the SCOTUS to act as a re-trier of fact?

            Where do you find that in your originalism?

            1. I don’t want it reviewed as a factual matter, precisely because that’s not the place of the court either by the constitution or by statute.
              But even more I don’t want it to come to this, because I can’t shoot as well as when I was younger, and I think it would sadly become necessary in a world where that occurred and a large percentage of the population believed it.

              After all, that’s what a coup is.

              1. I agree with you that this isn’t in the judiciary purview. It’s one of the very few areas where I’ll buy that the judiciary doesn’t have a role.

                I also agree it’d be a helluva mess if the House and Senate agreed, and the Court set it aside.

                1. I don’t think the judiciary have any say in whether to impeach, or whether to convict. But they might have some jurisdiction over steps Congress takes along the way to those votes.

                  1. Under what jurisdictional hook?

                    1. Fifth amendment, for witnesses called, for instance.

                  2. Like, I hate an unfair process as much as the next guy, but I’m not sure that applies to this political act.

                  3. How does the constitutional provision stating that the Chief Justice shall preside over the trial of the President play into this discussion? At the close of the House’s presentation of evidence, can the President’s lawyers ask the Chief Justice to dismiss for insufficiency of evidence, as would be permitted in a criminal case? If the Chief Justice denies the request, can the President ask the Supreme Court to overrule him? If so, isn’t the Chief Justice recused from ruling on the merits of his own decision? And if that’s the case, what if the rest of the court splits 4-4? Doesn’t it makes more sense to read the Constitution as saying that the Chief Justice has a role to play in this process, but the rest of the court does not?

            2. No I didn’t say anything of the sort. I was describing what Dershowitz wrote.

              1. Sure, no endorsement from you, the ‘deranged Democratic coup’ guy.

                Telling switch from ‘is’ to ‘ought’ to ‘says’

      2. Whether the Chief Justice presides or someone else does, the trial is governed by the same Senate rules. Those rules provide that the Presiding Officer doesn’t get the final say, if any member objects to a ruling he makes the question is put to a vote and a simple majority will overrule him.

  8. “because there was no crime.”

    It would be interesting to hear Professor Dershowitz expand on this, and on why he disagrees with more than one former US Attorney who has said flatly that the facts established in the Mueller Report were grounds for “multiple felony charges” and that the conclusion is not a matter of close professional judgement.

    By “more than one”, I mean over a thousand who have signed on to the statement.

    A charitable speculation is that Professor Dershowitz is arguing that Federal criminal law is in such bad shape that conduct can be subject to multiple felony charges without being morally considered a “crime”.

    It is possible to be outnumbered a thousand to one by people with relevant expertise and to be right, but his conclusion calls for explanation.

    1. If he is going to expand on anything it should be about why a “crime” is necessary. The vast majority of scholars from across the ideological spectrum agree that “misdemeanors” in the impeachment clause extends further than a crime and includes other forms of malfeasance and acts making the President unfit.

    2. In response I would reference another recent Volokh article, about how Justice Gorsuch pointed out that our laws are so broad that anyone can be arrested at anytime for something.

      Also, the supposed Trump crimes are related to obstruction of justice, and you can’t really adjudicate that without knowing the person’s intent. Trump hasn’t been interviewed on those “crimes” or offerered his own explanations.

      1. Correct. There’s enough to indict him, which suggests that there’s enough for the House to impeach if it believes the acts in question are sufficiently serious. In a criminal case a jury would have to figure out his mental state under a beyond-a-reasonable-doubt standard. In an impeachment trial before the Senate, the Senate would have to determine his mental state, but the Constitution doesn’t specify the standard of proof. The Senate would also have to decide whether it believed the offenses, even if he committed them, were sufficiently serious to warrant removal from office. A plausible argument can be made that if the President obstructed justice for political purposes rather than to cover up a crime, which seems conceivable here, the offense does not warrant removal. Similarly, it is arguable that President Clinton obstructed justice in the Lewinsky matter, but the Senate (correctly in my view) concluded that any crime he may have committed did not warrant removal.

    3. Oh come on; Those sort of “statements” are jokes. They’re like popularity polls where you don’t tell anybody what percentage of the people contacted agreed with the opinion you wanted.

      How many people, on being contacted, said “Hell, no!”? What’s the party percentage of those who said Trump was impeachable, relative to the pool of former federal prosecutors?

      1. Sometimes, but not really here, Brett. Poll respondents are anonymous. These people aren’t.

        And while they are expressing an opinion, it’s a highly informed opinion about a matter where they have training and relevant professional experience.

        It’s one thing to ask people on the street what they think about vaccination. It’s another to have physicians, epidemiologists, and other medical professionals sign a statement about it.

        Of course, you know better, I’m sure.

        1. They’re not anonymous, but has anybody looked at the partisan breakdown? If they’re basically all Democrats, all they’re doing is declaring their party affiliation, or beefing up their resumes for a future job.

  9. Arguments that the current Supreme Court would not intervene are based on precedent and Constitutional language, respect for both of which is at a low ebb in today’s Supreme Court.

    1. What precedent? If the House issues a bill of impeachment against Trump, it will be exactly the third time in the entire history of the US that a bill of impeachment has been issued against the President.

      The current standing record on presidential impeachment is two bills issued, ZERO convictions in the Senate. The current House Democrats are heading towards making it 3-0.

  10. Dershowitz plays fast and loose with quotes from Byron White and David Souter.

    Justice Byron White, a John F. Kennedy appointee, put it this way: “Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibility because the Senate has precipitated a crisis.”

    Justice David Souter, a George H. W. Bush appointee, echoed his predecessor: “If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.”

    From this he concludes:

    It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.

    Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.

    Dershowitz leaps from comments about obvious misconduct by the Senate – convicting without a trial – to claiming the court has the authority to decide if the allegations are serious enough to merit impeachment, and the evidence is adequate for conviction. That’s quite a stretch.

  11. So the President isn’t above the law, but apparently the Congress is. Good to know. Thanks for the insight, Keith.

    1. No, the congress is not above the law, which is why impeachment is not a criminal prosecution and a conviction cannot result in either prison nor a fine. All an impeachment can do is remove the person from office, and for any reason that convinces enough Senators that the person committed either a high crime or a misdemeanor.

      1. The entire premise of Dershowitz’s article is a hypothetical Congress (and specifically the Senate) which would vote to convict and remove the President without even holding a trial, which would be blatantly beyond the scope of the Constitution. In such a hypothetical case, Dershowitz says, the Supreme Court would be able to step in and rein the rogue Congress in. And by insisting otherwise (most typically by waving one’s hand and muttering something about “political questions”), one is necessarily saying that the Congress is above the law.

    2. Jeff, don’t thank him for an insight you may not have grasped.

      One point beyond question is that We the People, as the nation’s sovereign, are above the law. The constitution is their decree, and it says what they wanted it to say, regardless of everything. A sovereign always acts at pleasure, and without constraint.

      So to invoke “above the law,” as if it had relevance involves a choice to omit sovereignty from the discussion. In this case, that seems to misunderstand the question—actually to beg the question.

      The question is what to make of those “sole power” clauses in the constitution. Do they mean that nobody else gets a say? If so, then the sole power delegations must be read as special cases, where the solely empowered divisions of government act not in their usual capacity—their usual capacity being always constrained by the say of others—but act instead in a direct exercise of sovereign power—which is always unconstrained—which is to say, above the law.

      There will be arguments on both sides of that question. The arguments against any conclusion that houses of congress can act with sovereign power will strike modern ears as more familiar, and probably more reassuring. I suggest, however, that arguments on the other side—asserting that the “sole power” clauses are entirely consistent with a notion of a constitutionally authorized use of direct sovereign power by houses of congress—also need consideration. And such arguments can be made persuasive, albeit in terms more familiar to the founders than to most modern commenters.

      Perhaps you can discern the shape of the argument from that alone. If not, maybe some questions would help us share a dialogue on the subject.

  12. This is strictly a hypothetical question so far, but my own view is that the Supreme Court got it right by disavowing judicial review of impeachments.

    Nothing in the constitution – nothing in any statute – suggests that decisions made by the Senate in its judicial capacity can be challenged in an Article III court.

    Of course, in the Powell v. McCormack case, the Warren Court decided it was OK for Article III courts to intervene when a house of Congress rules on the qualifications of someone claiming membership. I think this is wrong, but there’s no reason to extend the error into the impeachment area.

    At the same time, I can see how an advocate of robust judicial review – someone who denounces “court-stripping” bills and talks about the Supreme Court resolving social conflicts – could advocate for judicial review in impeachment cases. It would be consistent with what many people advocate for the Supreme Court to do in other areas of the country’s life. But I disagree with these premises.

    1. Eddy, I offer a correction I hope you won’t object to. The Senate during a trial of impeachment does not act in a judicial capacity. It acts in a political capacity, as it always does. It is a political body, which cannot act otherwise.

      1. Yes, I object to that correction. They may have dirty, icky political motives, but they’re adjudicating claims brought against a defendant accusing him/her of high crimes and misdemeanors and seeking a punishment. If it walks and quacks like a duck, it may well be a duck.

        1. …and Riddick’s Senate manual agrees with me that when the House impeaches someone, the Senate constitutes itself as a court for the trial of impeachments (CTRL-F for “court”)

          https://www.govinfo.gov/content/pkg/GPO-RIDDICK-1992/pdf/GPO-RIDDICK-1992-69.pdf

  13. Lawfare openly declared they would defeat the new presidency in the courts- in effect being the architects and the lawyers of a soft coup. Evidently they have no intentions of stopping.
    It seems fitting that Wm Barr included a reference to The Praetorian Guard comparing it to the Upper Echelons of the FBI, DOJ and CIA when he summarized his opinion for CBS. I agree with Barr, that “for the good of the country ” is not an excuse for what they did

  14. It’s certainly an interesting theory. Let’s play it out shall we?

    Let’s say, for example, a single political party (Party A) gains control of the House and 2/3 of the Senate. Let’s also say, that the opposition party (Party B) gains control of the Presidency.

    Now, in these hyper-polarized times, let’s say there is no crime the President has committed, nor any hint of a crime, nothing even mentioned. Regardless, Party A wants the Presidency. So, they decide to impeach the President, then the Vice Presidency. They assert no crime, no trial, just say “We don’t like President and Vice President, and we want the Presidency.” This makes the Speaker of the House (of Party A) now President, despite the fact the Speaker was never elected by the people.

    Could the Supreme Court look at that, and say the action was unconstitutional?

    1. No, the Supreme Court could not.

      Limitations on political branches are to be found in the political process, not in the courts. The hypothetical you posit seems almost beyond imagination, given the near-certainty of a political uprising against it among voters. But if the voters chose not to do that, that is a judgment the court cannot be allowed to overturn, lest the People’s sovereignty be usurped by the court’s judgment.

      1. Technically speaking, limitations on political branches are found in the US Constitution. The article on impeachment is as follows.

        “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

        If there literally was no conviction on these crimes, no actual case made, why would it be Constitutional?

        1. Check out the Impeachment Crisis. This isn’t a criminal action.

          In your scenario a huge majority of the country would seem hostile to the President.

          1. 1. There were 11 counts in the Impeachment and trial of Andrew Johnson. Note…there was a trial. There were counts of crimes. And it had an effect on the resulting Senate vote
            2. Not necessarily a “huge majority”. One could obtain the 2/3rds of the Senate and a Majority of the House, and might not have a majority of the country.

  15. The Robert’s court is part of the swamp. Why would they save Trump?

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