To do what, exactly? Donald Trump issued this curious challenge earlier today on Twitter, part of an effort to rail against Democrats’ efforts to make the Robert Mueller probe interminable. If House Democrats start impeachment proceedings, however, Trump said he would ask the Supreme Court to intervene.
Er …. who wants to tell him?
CBS found this threat curious, too, although this TV segment doesn’t spend much time on the idea. Its legal analyst declared a Supreme Court intervention “unlikely”:
Jonathan Turley, a law professor at George Washington University and a CBS News legal analyst, said that Mr. Trump may ask the Supreme Court to rule on the legality of impeachment because of the delay it would provide.
“While members are wrong to portray impeachment as a purely political process, the Supreme Court is unlikely to bar an impeachment process,” said Turley, who was lead defense counsel during the last impeachment process for a U.S. district judge in 2010.
“Impeachment is based on a legal standard of ‘high crimes and misdemeanors,’ but the process and the merits were committed to the legislative branch by the framers. It is a standard that does not lend itself to judicial review or intervention,” Turley said.
Unlikely is an understatement. The Constitution makes impeachment a clearly political process for accountability, not a legal process with appeals. It lays out no role whatsoever for the judiciary in the process of impeachment and removal except to have the Chief Justice of the Supreme Court act as the presiding judge in the Senate trial.
But don’t just take the Constitution’s lack of supporting text for judicial intervention at face value. The Supreme Court ruled in 1993 that the judiciary has no role in impeachment at all. In the unanimous decision in Nixon v US et al, William Rehnquist denied an appeal from impeached federal judge Walter Nixon, noting that the Constitution’s language in giving the Senate “sole power to try all impeachments” meant that the judiciary had no role whatsoever in the process.
Furthermore, Rehnquist wrote, the theoretical case of a presidential impeachment made the situation even worse for judicial intervention:
Justiciability is also refuted by (1) the lack of finality inherent in exposing the country’s political life–particularly if the President were impeached–to months, or perhaps years, of chaos during judicial review of Senate impeachment proceedings, or during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated, and by (2) the difficulty of fashioning judicial relief other than simply setting aside the Senate’s judgment of conviction.
That clearly applies to the House impeachment process as well. The same political baggage would get created, and the same delay in dealing with legalities where political consequences for misconduct are supposed to be the issue, would emerge in the lower chamber too. In fact, the House process might be even more resistant to judicial review since it isn’t a judicial process at all, unlike the Senate’s trial model for removal.
Now, anyone with an attorney and a filing fee can press a lawsuit in court, and with enough money can challenge the results all the way to the Supreme Court. That doesn’t mean it will do anything except burn through cash like a California wildfire. There won’t be a federal judge who will ignore the Nixon precedent and stick themselves in the middle of a food fight between Congress and the White House. Thanks to the addition of strict textualists like Neil Gorsuch, Clarence Thomas, and Samuel Alito, along with conservative establishmentarians like John Roberts and Brett Kavanaugh, this Supreme Court won’t suddenly turn activist and claim this turf from the legislative branch. And under the present circumstances, it’s a lock that the four liberal jurists will be a hard pass on that invitation, too.
The big question will be who gets tasked to explain this to Trump. And the next biggest question will be who replaces that person when Trump fires the messenger.