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.
We’re beginning to see commentaries by people who appear to have actually read the Mueller Report, and the bulk of them fall into two categories which I’m labeling I Told You So and Bitter Clinging. Here are examples of each.
The Mueller Report, despite the best efforts of the chief author and his partisan investigative staff, is a bone-crushing defeat for the president’s enemies. There is not a whit of evidence that any American collaborated with any Russian to alter the results of the 2016 presidential election, and there is extensive evidence that the Trump campaign was the subject of enticements to collaborate and rebuffed all of them at all levels.
The Mueller report didn’t deliver the smoking gun of unrealistic liberal fantasies. (“The money is being wired to the Cayman Islands. Love, Vlad.”) But beyond making clear how close Mueller came to recommending the indictment of a sitting president for obstruction of justice, the report is brimming with tantalizing clues about the uncanny synchronization between the Trump campaign and the Russians—and may increasingly diminish the public’s confidence in giving the president another four years.
It’s not surprising that the two camps of interpretation are filled with mostly conservatives among the I Told You Sos and leftists among the Clingers. But I found it interesting that the more experienced leadership on The Left quickly realized that Mueller really had spent two years searching but had found no there there. Steny Hoyer, for example, remarked last week that impeaching the President was “not worthwhile.”
While Shapiro is correct in noting that the report contains things that aren’t helpful for Trump, and smart Democrats could use them as part of their 2020 campaigning, the report simply doesn’t contain a shred of evidence of any high crimes or misdemeanors. I suspect that Pelosi, Hoyer, and others with Bill-Clinton-era political experience will have their hands full trying to manage their colleagues who will want to spin the Mueller Report into articles of impeachment.
It was twenty years ago that Bill Clinton was impeached for lying under oath during a deposition in a civil suit related to a sexual harassment claim. The 1995 Blog takes a look back at that process and comes to the conclusion that it looks better now than it did twenty years ago.
Clinton lied under oath, and sought to impede justice in a sexual harassment lawsuit in which he was the defendant. The lawsuit was brought by Paula Jones, a former employee of the state of Arkansas who said that Clinton, while he was the state’s governor, crudely propositioned her at a hotel room in Little Rock.
During his deposition in the Jones lawsuit, Clinton was asked about Lewinsky. He denied having had sexual relations with her; he denied having been alone with her. Presiding at Clinton’s deposition, taken in January 1998, was a federal judge, Susan Webber Wright.
She was there at Clinton’s request, and she later found that Clinton had given “intentionally false” testimony at the “tainted deposition” and that his “false, misleading and evasive answers … were designed to obstruct the judicial process.”
The judge found Clinton in contempt, and the House of Representatives wound up impeaching him on one count of perjury and one count of obstruction of justice.
One may argue whether or not the Senate did the right thing by failing to convict, but looking back, it seems the House did the right thing by censuring Clinton’s lawless behavior.
The Daily Caller reports that Congresscritter Keith Ellison has noted that a Democrat-controlled House of Representatives could impeach a Republican-appointed Supreme Court justice. He’s correct. A handful of federal judges have been impeached by the House, and some convicted by the Senate.
Indeed, the Democrats could use one of their members as an expert to guide such a process. Before being elected to Congress, Rep. Alcee Hastings was impeached, convicted, and removed from his office as a U. S. District Judge.
There’s a growing group among the Democrats in Congress agitating for the impeachment of President Trump. It may be that they are just throwing some political mud around as a form of self-promotion. OTOH, they may really believe that Trump should go. If the later is the case, they need to get themselves better organized. Not all of them were around for the Clinton impeachment 19 years ago, so they should pick a leader with some actual practical experience with the impeachment process. Alcee Hastings comes to mind.
Rep. Sheila Jackson Lee (D-TX) says that the Democrats never tried to impeach George W. Bush.
Katherine Miller notes over at BuzzFeed that Rep. Lee was a cosponsor of H.Res. 1258 back in 2008. The title of that resolution was Impeaching George W. Bush, President of the United States, of high crimes and misdemeanors.