The Volokh Conspiracy

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

Volokh Conspiracy

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

Sometimes Dershowitz gives really bad advice


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.