We’re in a weird place where Trump’s own SCOTUS nominee thinks Congress’s power to remove him from office is broad while liberal Democrat Alan Dershowitz is on TV arguing that it is, and can only be, narrow. From his new book, “The Case Against Impeaching Trump”:
Dershowitz argues in the book that collusion would be a “political sin” that doesn’t meet the Constitution’s specification of “treason, bribery, or other high crimes and misdemeanors” for removal from office.
Judicial review might be triggered, he writes, because “this president (and perhaps others) might well refuse to leave office if Congress voted to impeach and remove him based on ‘offenses’ that were not among those enumerated in the Constitution.”
“A Supreme Court that inserted itself into the Bush v. Gore election in order to avoid a constitutional crisis might well decide to review a House decision to impeach and a Senate decision to remove a president who is not accused and convicted of a specified constitutional crime,” Dershowitz adds.
Bad news for Dersh, who seems glum about not getting invited to parties on Martha’s Vineyard as often anymore since he became a Trump defender: Making a preemptive case for why the president might rightly ignore a removal vote in the Senate probably isn’t going to get those invites flowing again.
His argument is irrefutable to the extent that one never knows what five justices might do. Is it conceivable that a majority of the Supreme Court would dismiss an impeachment verdict from Congress on grounds that the “high crimes and misdemeanors” that supposedly justify the president’s removal aren’t crime-y enough per their reading of the Constitution? I … guess so? A Court that could uphold the mass internment of Japanese-Americans is capable of anything. Is it likely that they’d do that? Not remotely. For starters, SCOTUS considered the question not very long ago of whether the Senate’s removal process (of a federal judge in this case) is reviewable by federal courts. Nopers:
The history and contemporary understanding of the impeachment provisions support our reading of the constitutional language. 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…
The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179, 186 (Committee of Detail). Despite these proposals, the Conventionultimately decided that the Senate would have “the sole Power to Try all Impeachments.” Art. I, §3, cl. 6. According to Alexander Hamilton, the Senate was the “most fit depositary of this important trust” because its members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers “doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task” or whether the Court “would possess the degree of credit and authority” to carry out its judgment if it conflicted with the accusation brought by the Legislature–the people’s representative. See id., at 441. In addition, the Framers believed the Court was too small in number: “The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.” Id., at 441-442.
Six justices formed a majority in that case, with the other three concurring in the judgment. 9-0. Dershowitz would either need that opinion reversed outright or distinguished on grounds that, while the process by which the Senate considers removal might be nonjusticiable, the grounds for removal are not. In other words, Dersh would need SCOTUS to rule that it alone is empowered to define what “high crimes and misdemeanors” are for impeachment purposes. But why should that power fall to the Court when everything else about impeachment falls to Congress? As Charles Cooke notes, impeachment isn’t a legal process but a political one. Congress checks the president; if it goes too far and removes him from office unjustly, the people will deal with them accordingly at the ballot box.
You don’t need to parse legal niceties to see why Dershowitz’s theory is batty, though. Look at it practically. Under what circumstances would the Supreme Court ever stand in the way of removing the president from office if the Senate’s prepared to act?
I am 100% with Charlie on the law. But I would just add: If Trump (or any president) were deemed deserving of impeachment by the House and of **removal** by the Senate, the idea that the Supreme Court would TOUCH that verdict is astoundingly silly on political grounds. https://t.co/QHfRvxhZVM
— Jonah Goldberg (@JonahNRO) July 10, 2018
It’s bananas. To get 67 votes for removal in the Senate, the president would need to be plainly guilty of something so egregious that a chunk of his own party in the chamber would feel political pressure to support ending his tenure. That high supermajority bar is why it’s so hard to see Russiagate bringing down Trump; unless Mueller has an evidentiary kill shot, Senate Republicans will obviously find some reason to oppose removal. In the unlikely case that he does have a kill shot, though, it’s insane to think of the Senate taking the momentous step of ousting the president and then the Supreme Court wading in to rescue a disgraced executive when it’s under no obligation to do so. It could just shrug, stick with the precedent that impeachment is a nonjusticiable political question, and stay out of the whole mess. If you think impeachment and removal would create a constitutional crisis, imagine the paralysis if the removal were reversed and a damaged president was left in power by a highly dubious SCOTUS decision. It’d be chaos. And needless to say, if the Court’s majority happened to have been appointed by the president or other presidents of his party, whatever legitimacy the institution has left would be incinerated.
Dershowitz knows all of this, of course, so you tell me why he’d argue to the contrary. Is he just in the tank for Trump? Is he imagining a process in which, rather than reversing a Senate decision to remove POTUS, the Court wades in early and issues some sort of motion to dismiss the impeachment charges against him before the Senate votes — which would also be chaotic and explosively delegitimizing? Is he just trolling, having fun by scandalizing his lefty colleagues? Is he applying for a White House job? It’s inexplicable on its own terms. Here he is this morning on CNN making the case, via Mediaite.