The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Can the Roberts Court Save Donald Trump from an Impeachment?

That's not how any of this works


President Donald Trump is a nearly inexhaustible source of constitutional puzzles. I've practically organized a class around it. One never knows what new gifts he is going to bestow on us. Today, in his morning tweetstorm, he offers us the thought that he could appeal an impeachment to the U.S. Supreme Court.

Can he do that? One would think not, but I suppose hope springs eternal. There are both legal and political reasons for thinking the Court would stay out.

Legally, the text of the U.S. Constitution specifies that the House of Representatives possesses the "sole" power to impeach and the Senate possesses the "sole power to try all impeachments." When Judge Walter Nixon tried to appeal his impeachment and conviction to the U.S. Supreme Court on the grounds that the procedures that the Senate followed were defective, the Rehnquist Court unanimously rejected that effort.

The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers.

Chief Justice William Rehnquist even speculated about the problem of judicial review of a presidential impeachment.

We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps years, of chaos." . . . This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated.

The modern Court does not often seem inclined to invoke the political question doctrine, but here at least the justices were willing to admit that the Constitution had committed this question into the hands of the legislature, not the judiciary.

Perhaps there are circumstances that might tempt the justices to assert judicial supremacy over impeachments as well. After all, the Court is fond of reminding us that it is emphatically a judicial task to say what the law is, and what if Congress seemed to be riding roughshod over the Constitution in how it used the impeachment power? Imagine a Congress willing to impeach a president on grounds that no reasonable person could think constitutes an impeachable offense. Donald Trump apparently prefers to eat his steaks well-done with ketchup. To be sure, this is a grievous offense, but presumably no one thinks it is a high crime or misdemeanor. Imagine further that two-thirds of the Senate is willing convict such a president with no semblance of a trial. "Convict first, go through due process second," declares the Senate majority leader. The Court might well think that such a Congress has badly abused its constitutional powers and is not even making a pretense of adhering to a good-faith interpretation of the Constitution. Maybe a Court confronted with such a runaway Congress would be tempted to ride to the president's rescue and discover the limits to the political question doctrine.

But that's when politics comes into play. A Congress willing to impeach and remove a sitting president on the pretext that he routinely dishonors his steaks could hardly be trusted to sit idly by while the justices attempted to reinstall that president in the White House. If a Court were to attempt to intervene in such a scenario, the justices might well find themselves next on the chopping block. The justices might at this point recall the words of Chief Justice Salmon Chase when the Court was asked to order the president not to enforce the Reconstruction Acts in Mississippi after the Civil War.

Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?

"These questions answer themselves," Chase observed. Indeed. Sorry, Mr. President, you are on your own on this one.