On April 24, the president tweeted:
The Mueller Report, despite being written by Angry Democrats and Trump Haters, and with unlimited money behind it ($35,000,000), didn’t lay a glove on me. I DID NOTHING WRONG. If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court. Not only……
— Donald J. Trump (@realDonaldTrump) April 24, 2019
…..are there no “High Crimes and Misdemeanors,” there are no Crimes by me at all. All of the Crimes were committed by Crooked Hillary, the Dems, the DNC and Dirty Cops – and we caught them in the act! We waited for Mueller and WON, so now the Dems look to Congress as last hope!
— Donald J. Trump (@realDonaldTrump) April 24, 2019
The suggestion was met with derision, including widespread suggestions that President Trump simply does not understand the Constitution. Laurence Tribe called the argument “idiocy.” “The Constitution? How Does It Work?” tweeted Dan Drezner. It’s tempting to write this off as just another ill-tempered presidential tweet. And it’s true that, without a dramatic change in the underlying case law, Trump’s suggestion of appealing an impeachment conviction to the Supreme Court is genuinely absurd. The Constitution establishes that “The House … shall have the sole Power of Impeachment” and that “[t]he Senate shall have the sole Power to try all Impeachments.”
But Trump’s suggestion of resorting to the Supreme Court to appeal an impeachment did not come out of nowhere. Prominent Trump defender Alan Dershowitz recently made an argument along the same lines, writing in an essay on “The Case Against Impeaching Trump” that, “Were a president to announce that he refused to accept the actions of the Senate in voting for his removal … and that he would not leave office unless the Supreme Court affirmed his removal, the people might well agree with him.” In the past, Trump has managed make fringe legal arguments into commonplace talking points on Fox News. And so, while it’s easy to write off Trump’s tweet, it’s worth considering Cornell Law professor Josh Chafetz’s suggestion that statement should be read as “part of an ongoing effort to shift the constitutional debate around president-checking mechanisms.”
In that vein, below is an effort to take a closer look at why the Supreme Court has no power to review an impeachment and conviction.
The Supreme Court has already barred the possibility that it could serve as a court of appeals for impeachment in Nixon v. U.S. In that case, Judge Walter Nixon sought judicial review after he was removed from office following impeachment and conviction, arguing that the Senate had unconstitutionally used a special committee to conduct hearings rather than conducting the proceedings before the entire body. The court found Nixon’s claim to raise a political question and therefore to be nonjusticiable: impeachment is characterized both by “a textually demonstrable constitutional commitment of the issue to a coordinate political department” and “a lack of judicially discoverable and manageable standards for resolving it,” two of the criteria for political questions as defined in Baker v. Carr.
In arguing that the Constitution commits to “a coordinate political department”—that is, Congress—the court delves into the history of the impeachment provisions. Most notably, James Madison and the Committee of Detail originally proposed that impeachment should be the responsibility of the Supreme Court before the matter was moved to the Senate.It’s true that the Supreme Court has some link to impeachment insofar as the Constitution provides for the chief justice of the Supreme Court to preside over the Senate trial in an impeachment case. But Justice Joseph Story argued in “Commentaries on the Constitution” that the chief justice’s role is mainly due to “the necessity of excluding the vice president from the chair, when he might have a manifest interest, which would destroy his impartiality.”
Nixon concerned a procedural objection to impeachment, rather than a substantive one. But there is good reason to think that the precedent would also bar an appeal on, for example, disagreement over what constitutes a “high crime and misdemeanor.” Michael Gerhardt notes that “it is difficult to settle on judicially manageable standards, because the existence of an impeachable offense depends inexorably on Congress’s political judgment and on the particular circumstances of the alleged impeachable offense involved.” And the “demonstrable constitutional commitment of the issue to a coordinate political department” likewise remains.
Those looking for a contrary view could point to the scholar of impeachment Raoul Berger, who argued that, “The last thing intended by the Framers was to leave the Senate free to declare any conduct whatsoever a ‘high crime and misdemeanor.'” But Berger was writing in 1974, two decades before the Supreme Court would toss out Walter Nixon’s claim. Whether or not Berger was correct in 1974, it’s hard to see today how his reasoning overcomes Nixon.
Perhaps the most convincing argument against judicial review of impeachment comes, as ever, from Charles Black. Imagine, Black writes, that a president, after being impeached and convicted, appeals to the court, which then “puts the impeached and convicted president back in for the rest of his term. And we all live happily ever after … I don’t think I possess the resources of rhetoric adequate to characterizing the absurdity of that position.”
Black’s point is less that the constitutional history and text show that the courts have no role to play here—though he does also argue this—and more that confusion on the matter could itself be fatal in the most extreme situation. What if military commanders are placed in the position of deciding which president is rightfully the chief executive?
But this confusion itself may be a strategy for a president on the brink of losing office, Black warns. A president removed by office by impeachment might appeal to the Supreme Court, have his case dismissed for lack of jurisdiction, and then, “though quite wrongly … persuade a part of the people that he had been denied his rightful day in court.”
In light of President Trump’s habit of insisting that he has been treated unfairly by every entity that resolves a dispute not in his favor, Black’s words are uncomfortably prescient.
Lawfare – Hard National Security Choices
1. Trump from Michael_Novakhov (197 sites)