Dershowitz is wrong SCOTUS wouldn’t touch that Mythical Impeachment Scenario

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Dershowitz is wrong SCOTUS wouldn't touch that Mythical Impeachment Scenario

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 13 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.

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.