President Trump has remarked that if the House were to pass articles of impeachment against him that did not properly charge him with a crime (Orange Man Bad isn’t even a misdemeanor), he might go to the Supreme Court seeking to have the impeachment quashed. Various pundits and academics have tut-tut-ed and stated that the President doesn’t understand how impeachment works. Do they?
Alan Dershowitz has a piece over at The Hill suggesting that the President may not be too far off base.
Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.
Recall that when a president has been impeached by the House, the Supreme Court’s chief justice presides at his Senate trial and the senators take a special oath. This special oath requires each senator to swear or affirm that “in all things pertaining to the trial … [to] do impartial justice according to the Constitution and the law” (italics added).
If the House were to impeach for a non-crime, the president’s lawyer could make a motion to the chief justice to dismiss the case, just as a lawyer for an ordinary defendant can make a motion to dismiss an indictment that did not charge a crime. The chief justice would be asked to enforce the senatorial oath by dismissing an impeachment that violated the words of the Constitution. There is no assurance that the chief justice would rule on such a motion, but it is certainly possible.
No one should criticize President Trump for raising the possibility of Supreme Court review, especially following Bush v. Gore, the case that ended the 2000 election. Many of the same academics ridiculed the notion that the justices would enter the political thicket of vote-counting. But they did and, in the process, weakened the “political question” doctrine. The case for applying the explicit constitutional criteria governing impeachment is far more compelling than was the case for stopping the Florida recount.
So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional.
The Wall Street Journal reports that Michael Cohen instructed Stephen Ryan, his previous lawyer, to raise the prospect of a pardon after the FBI raided Cohen’s home last April. That statement by lawyer Lanny Davis, who now represents Cohen, directly contradicts Cohen’s testimony to the House Oversight and Reform Committee on 27 February.
Cohen: “I have never asked for, nor would I accept, a pardon from Mr. Trump.”
Davis: “During that time period, [Cohen] directed his attorney to explore possibilities of a pardon at one point with Trump lawyer Rudy Giuliani as well as other lawyers advising President Trump.”
Cohen has pleaded guilty to lying to Congress, but he has now flipped on his former client Donald Trump, so it makes sense that the Democrats on the House Oversight Committee would give him a forum for further lies.
So the Democrats say that they’ll be using their new control of House committees to do some investigating. We’ll see how that works out. Meanwhile, Conrad Black makes this observation over at the National Post—
Now that the president has fired the attorney general and can confirm a replacement who is not emasculated on Russian matters, the administration can proceed to the indictment of all leading members of the Clinton campaign and the Obama justice department who appear to have incriminated themselves by lying to Congress or the FISA Court, including Hillary Clinton, Loretta Lynch, and agency heads John Brennan, James Clapper, and James Comey. This may happen anyway, but it certainly will if the Waters-Nadler-Schiff faction is unleashed. Trump has been put to extreme inconvenience by these spurious investigations and he can, if he wishes, exact a terrible vengeance. His moderation should not be presumed.
While considering my first cup of coffee this morning, I was scrolling through teh Twitterz and found this—
—which seems to be a neat summation of the real constitutional “crisis” being played out in this week’s SCOTUS nomination hearings: Congress has been failing to do its job writing legislation for more than a century.
One obvious problem is the deferral of too much of the regulatory process to executive branch agencies such as the FCC or the EPA. Another is the lack of Congressional pushback when the courts have engaged in legislation from the bench.
If Senator Hirono is so concerned about the Supreme Court overturning Roe v. Wade, she should introduce legislation to remove the Court’s authority to consider abortion cases. Congress has that power under Art. III, Sec. 2 of the Constitution. Of course, the fallout from the debate over such a bill might have disastrous consequences for elected officials who could lose their jobs at the next election, so it’s understandable that she might prefer to leave such questions the responsibility of government employees with better job security. Even if they might vote the wrong way. Some things aren’t worth risking your job.