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Thread: Dershowitz: Supreme Court could overrule an unconstitutional impeachment

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    Dershowitz: Supreme Court could overrule an unconstitutional impeachment

    Dershowitz: Supreme Court could overrule an unconstitutional impeachment

    BY ALAN DERSHOWITZ, OPINION CONTRIBUTOR — 05/31/19 04:08 PM EDT

    President Trump has said that if the House were to impeach him despite his not having committed “high crimes and misdemeanors,” he might seek review of such an unconstitutional action in the Supreme Court. On April 24, he tweeted that if “the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court … Not only are there no 'High Crimes and Misdemeanors,' there are no Crimes by me at all.”

    Yesterday, when asked by a reporter if he thinks Congress will impeach him, the President responded: “I don’t see how. They can because they’re possibly allowed, although I can’t imagine the courts allowing it.”

    Commentators have accused Trump of not understanding the way impeachment works and have stated quite categorically that the courts have no constitutional role to play in what is solely a congressional and political process. Time magazine declared in a headline “That’s Not How It Works,” and Vox called the president’s argument “very confused.”

    ...

    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.”

    It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.
    That's a new one. Appealing impeachment to the Supreme Court?

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    Quote Originally Posted by Norm dePlume View Post
    That's a new one. Appealing impeachment to the Supreme Court?


    That seems odd. It's pretty much the only way to prosecute a sitting President - collect evidence of a high crime and/or misdemeanor and then try him in the House with the Senate acting as Judge. I'm not sure SCOTUS even has the authority to overrule the House on this.
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    Quote Originally Posted by scott View Post


    That seems odd. It's pretty much the only way to prosecute a sitting President - collect evidence of a high crime and/or misdemeanor and then try him in the House with the Senate acting as Judge. I'm not sure SCOTUS even has the authority to overrule the House on this.
    It raises a very interesting question: When the Congress functions as a tribunal (rather than a legislative body), is it an "inferior court" as contemplated by Article III? If so, the Supreme Court has jurisdiction of appeals from it. If not, then it is some sort of independent super-court, which would appear to violate Article III.

    If Dershowitz thinks it can be appealed, there's probably a good reason for thinking that. Personally, I doubt we'll find out, because the House may impeach, but a conviction seems highly unlikely.
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    From the constitution:

    The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.

    ...

    The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

    Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
    I'm not seeing much wiggle room there.

    It's not out of the question to ponder that the House could pass articles of impeachment for insufficient causes. But when the Constitution says, "The Senate shall have the sole power to try all impeachments" that seems to me like it's up to the Senate to decide whether those causes are sufficient, not the Supreme Court. I could maybe see SCOTUS getting involved if there were some technical violation, like if the House didn't have a quorum when they voted on it or something but even that seems highly unlikely.

    To put it another way, if the House passed articles of impeachment and the Senate hasn't ruled on it yet, SCOTUS wouldn't step in at that point because the ball is in the Senate's court. And if the Senate ruled in favor of impeachment, do you think SCOTUS would then pit their authority against both the House and the Senate?
    Last edited by Norm dePlume; Saturday, June 1st, 2019 at 1:54 PM.

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    Quote Originally Posted by Norm dePlume View Post
    From the constitution:



    I'm not seeing much wiggle room there.
    Each lower court (below the Supreme Court) has the sole power to try certain types of cases. You can't go directly to the Supreme Court except in very limited situations where it has original jurisdiction. You can't decide to try your traffic case in federal court, or your bankruptcy case in county court.

    The actual issue I see is, if the Chief Justice presides over the original proceedings, would s/he have to be recused on appeal? Or would that make the Senate proceeding an extension of the Supreme Court, foreclosing appeal?

    As I said, Dershowitz is very well-versed on this sort of thing, which is way outside my legal experience. I tend to think he probably has it right, although I'd love to see his rationale.
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    If an impeachment could be appealed to the SCOTUS (and I am not convinced it can), I would hope that every Justice appointed by that president would recuse themself from the appeal.
    Last edited by Norm dePlume; Saturday, June 1st, 2019 at 2:26 PM.

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    All/themselves; every/himself.

    Probably the most ethical course of action, although the outcome of doing so or not could be surprising. In theory, the Justices' first loyalty is to the law, not the person who nominated them. And who's to say they might not be equally beholden, if at all, to the Senate that confirmed them (and convicted the appellant)?
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    Recusal has to do with avoiding the appearance of corruption as well as the actual fact of it. The president picked his appointments from a lengthy list. The Senate only gave an up or down vote. It would look very very bad indeed if a president appointed, say, three Justices to the SCOTUS and then that SCOTUS overturned an impeachment with those Justices joining.

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    Quote Originally Posted by Celeste Chalfonte View Post
    All/themselves; every/himself.
    Fair enough. I was avoiding a gender specific pronoun, but you're right. I edited to "themself" (which will probably not make you any happier).

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    Quote Originally Posted by Norm dePlume View Post
    Fair enough. I was avoiding a gender specific pronoun, but you're right. I edited to "themself" (which will probably not make you any happier).
    None of the female Justices was appointed by the current President, so it's kind of a non-issue in this context.
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