Alan Dershowitz Is Bamboozling Trump -- And The Public -- About The Supreme Court And Impeachment
Credit: Screengrab
June 1, 2019

The president thinks he could appeal an impeachment to the Supreme Court. That's not how it works.

Asked during a Q&A session with reporters whether he’s concerned about getting impeached, Trump said, “I can’t imagine the courts allowing it.”

... There’s just one problem. As Lawfare’s Quinta Jurecic explained last month when Trump posted tweets suggesting he’d appeal his impeachment to the Supreme Court, the courts have nothing to do with it. Impeachment is a congressional process:

[W]ithout 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 “[t]he House ... shall have the sole Power of Impeachment” and that “[t]he Senate shall have the sole Power to try all Impeachments.”

Trump, it's said, got this idea from an Alan Dershowitz book titled The Case Against the Democratic House Impeaching Trump. In it, Dershowitz writes:

“[w]ere 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.”

Dershowitz continues to push this argument in an op-ed in The Hill, asserting that Supreme Court justices have argued for judicial intervention in impeachment.

Two former, well-respected justices of the Supreme Court first suggested that the judiciary may indeed have a role in reining in Congress were it to exceed its constitutional authority. 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.”

Notice that White says the Supreme Court might intervene if a president were to be impeached "without any kind of trial" in the Senate. Why is that relevant, Alan? No one is proposing that. No is proposing an impeachment or trial that violates the Constitution.

Dershowitz carefully edits Souter's assertion:

“If the Senate were to act in a manner seriously threatening the integrity of its results ... judicial interference might well be appropriate.”

Here's what Souter actually wrote, as quoted by Justia's Vikram David Amar:

“If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply a ‘bad guy,’ ... judicial interference might well be appropriate.”

Again, Souter is describing a set of circumstances no one is proposing: a conviction of Trump in the Senate without a formal Senate trial.

Souter was writing about the case of a federal judge, Walter Nixon, who'd been convicted of perjury but who refused to step down from the bench. He was impeached in the House. When his case went to the Senate, a committee was appointed to review testimony and other evidence. It reported to the full Senate, which then voted to remove Judge Nixon from office.

Nixon appealed his conviction to the Supreme Court, arguing that he hadn't had a proper Senate trial. The Court ruled against him unanimously. And while Dershowitz would have you believe that the Court was itching to second-guess an impeachment trial, the truth is exactly the opposite:

... the Court observed that 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 power.”

The Court also remarked that “judicial review would be inconsistent with [the Framers’] insistence that our system be one of checks and balances.... Judicial involvement in impeachment proceedings, even if only for the purposes of judicial review, ... would eviscerate the ‘important political check’ placed on the Judiciary by the Framers.... Nixon’s argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.”

Do I trust the Roberts Court to respect this precedent? No. But Dershowitz is arguing that the Court has hinted in the past at overruling impeachments. In fact, it has been careful to reject judicial review, except in hypothetical extraordinary cicumstances. Even White and Souter didn't suggest that the Supreme Court should intervene unless a particular impeachment were handled in a way that was a mockery of the process laid out in the Constitution.

Dershowitz's op-ed is in support of his argument that an impeachment and conviction of Trump could be overturned if it happened "without evidence of 'high crimes and misdemeanors.'" But it's well established that obstruction of justice is an impeachable offense. (One of the two articles of impeachment in Bill Clinton's case charged Clinton with obstruction of justice.) I know that the president's bootlickers believe he's pure as the driven snow, but the Mueller report makes clear that that's not the case.

This is the kind of bamboozlement we can expect if there's an impeachment. A conviction is the Senate is nearly unimaginable, but if it were to happen, we can expect Trump to refuse to step down, with Dershowitz leading the crowd of yahoos rooting Trump on.

Published with permission from No More Mr. Nice Blog

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