In a piece at the hill Alan Dershowitz suggesting that if after being impeached President Trump refuses to leave office and appeals to SCOTUS they might rule in favor of the president.
Our nonlawyer president may be closer to the truth than his lawyer critics. In fact, the Lawfare blog noted that “Trump’s suggestion of resorting to the Supreme Court to appeal an impeachment did not come out of nowhere. … Alan Dershowitz recently made an argument along the same lines, writing in an essay on ‘The Case Against Impeaching Trump’ that ‘[w]ere a president to announce that he refused to accept the actions of the Senate in voting for his removal … and that he would not leave office unless the Supreme Court affirmed his removal, the people might well agree with him.’”
However, my argument did not come from nowhere, either.
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.”
It’s not often that I side with currently insane Larry Tribe vs professor D but in this case he’s wrong.
Don’t get me wrong, I think any impeachment of Trump, pushed by Democrats terrified of their base would be as justified as Bill Veeck cancelling the final game of the 1948 season at home to clinch the pennant for the Indians (he was so tempted actually called in the commissioner’s office to stop himself).
But even if the Democrats chose to impeach trump because they don’t like his hair and somehow the senate decided to go along with this nonsense, the SCOTUS is unlike to overrule them no matter what the President did.
!st of all the impeachment is a congressional prerogative specifically enumerated by the Constitution.
2nd of all while the grounds for impeachment is specified as for “high crimes” and/or “misdemeanors” nowhere in the constitution are these terms defined. Does anyone think a court system that has proved willing to redefine marriage, not to mention “man” and “woman” after tens of thousands of years is going to be all that worried about how the congress chooses to define “high crimes” and “misdemeanors”?
Finally there is a built in remedy to check an impeachment crazy congress, elections. The people would every two years be able to remove any house member and a 1/3 of the senate involved in such a move, furthermore impeachment doesn’t preclude a president removed in such a fashion from running again.
Of course all of this is a bigger fantasy than Game of Thrones. President Trump reads the electorate well so if he thought for one moment that he would lose a conviction in the Senate he would make a deal rather than create a crisis, and even that is moot because even less likely than POTUS defying a senate conviction would be the Senate, particularly this Senate, removing him from office post impeachment, and for such a scenario to be even possible the house would have to impeach which is not only unlikely but electoral poison for all but the most safe democrat seats, which is why regardless of what you see on cable or on late night TV the Democrat party leadership will privately resist any attempt to bring this to a vote.
Frankly if I was the GOP I’d force a vote on impeachment today, cripes if I had my way they would have done it two years ago. I frankly wouldn’t be surprised if Trump forces a vote either just before or just after the deadline for primary challenges for sitting Democrat members of congress.
Why, well that’s a post for much later.