The Supreme Court Can Stop a Trump Impeachment

By | 2019-05-01T15:48:20-07:00 May 1st, 2019|
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Fueled by the recent release of the Mueller report, the Left, including many Democrats in the U.S. House of Representatives, has ramped up its longstanding call for the impeachment of President Donald Trump. The president—arguably the best counter-puncher in American political history—has responded by tweeting, “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.”

Not surprisingly, in response the Left has issued a blizzard of replies to the president’s tweet. Harvard Law School professor Laurence Tribe, for example, retorted in the most frequently repeated of the replies that it was “idiocy” for the president to think the Supreme Court would have jurisdiction over an impeachment proceeding.

I disagree. Although it is true that the nation’s highest court held in 1993 that the question of whether the Senate had properly tried an impeachment of federal judge Walter Nixon was a political question that could not be resolved in the courts, Justices Byron White, Harry Blackmun, and David Souter wrote separately to voice their concern about foreclosing the impeachment process from judicial review. While the three Justices agreed that the Senate had done all it was constitutionally required to do during Judge Nixon’s impeachment trial—namely, appoint a committee of senators to hear the evidence against Nixon and later report to the Senate as a whole for a vote on his removal from office—they insisted that the court must retain the power to review cases in which the Senate removed an impeached officer summarily without a hearing, or through some arbitrary process such as a coin toss, or because the Senate thought the impeached officer was “a bad guy.”

Moreover, the House is not the Senate and despite Gerald Ford’s embarrassing boast in 1970 as a member of the House that an “impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” the Supreme Court unquestionably could enjoin any impeachment proceeding that is nothing more than a thinly veiled coup d’etat.

An attempt to impeach President Trump at this point would be precisely that. After all, the Left has been trying to overturn the 2016 presidential election from the moment Trump won it, and they haven’t stopped trying in the two-plus years since the election. Tribe himself, in a May 13, 2017 op-ed in the Washington Post, wrote that President Trump “must be impeached” for “obstruction of justice” after firing FBI Director James Comey: a conclusion recently rejected by the Mueller report itself.

Revealingly, Tribe tried to explain why, in his not-so-impartial opinion, what President Clinton had done when he was president was not an impeachable offense. “In Clinton’s case,” Tribe wrote, “the ostensible obstruction consisted solely in lying under oath about a sordid sexual affair that may have sullied the Oval Office but involved no abuse of presidential power as such.”

I strongly suspect that the Supreme Court would not be indifferent to the fact that the Left’s attempts to undo President Trump’s 2016 election victory have taken on the appearance of throwing-anything-and-everything-against-the-wall-to-see-what-sticks. Recall, for example, that the Left has argued that the president should be impeached and removed from office for violating the Constitution’s Emoluments Clause, an obscure provision addressing corruption and curry-favoring at the hands of foreign governments. That attempt has gone nowhere.

The Left also has insisted that President Trump should be impeached and removed from office for, in the words of former Clinton labor secretary Robert Reich, “unfaithfully executing his duties as president” in faulting President Obama on several occasions; for his alleged violation of the First Amendment guarantee of freedom of religion with his travel ban; and for his alleged violation of the First Amendment protection for a free press in criticizing the media for criticizing him. Reich has gone so far as to accuse President Trump of treason against the United States. None of those scurrilous accusations have stuck either.

I also suspect that the Supreme Court would not be indifferent to the related attempts by the Left to insist that President Trump is not “mentally fit” to serve and should be stripped of power under the 25th Amendment, especially when that frivolous charge was based on the “diagnoses” of so-called mental health professionals who have never met, let alone, treated the president.

In short, I am confident that the Supreme Court would see any formal move by the House to impeach President Trump for what it is: a blatant attempt to overthrow the legitimately elected President of the United States. I am likewise confident that the Justices would comply with their oath of office to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” and put a stop to it.

Photo credit: Chip Somodevilla/Getty Images

About the Author:

Scott Douglas Gerber
Scott Douglas Gerber is a visiting professor at Brown University’s Political Theory Project and a law professor at Ohio Northern University. His nine books include A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press).