Trump Claims He’d Take Impeachment To The Supreme Court, But He Can’t

President Trump claims that he'd challenge any effort to impeach him in court, but the law makes clear that he can't.

In another one of his now-famous early morning tweet storms. President Trump responded to renewed talk about impeachment in the wake of the release of the Mueller report by threatening to challenge the legal basis for any impeachment effort should one be made:

President Donald Trump on Wednesday said he would turn to the Supreme Court if the House of Representatives moves to impeach him, though it is unclear what role the nation’s highest court could play if the president were to seek its help in such a situation.

Trump claimed in a tweet posted Wednesday morning that special counsel Robert Mueller’s report was written by a team biased against him with “unlimited money” for an investigation into Russian interference in the 2016 election. Still, he said, the report “didn’t lay a glove on me.”

Although Trump claimed he would seek the Supreme Court’s help if the House were to impeach him, the Supreme Court ruled unanimously in 1993 that authority for impeachment trials resides in Congress and “nowhere else.”

A number of congressional Democrats have called for the initiation of impeachment proceedings against the president after a redacted version of Mueller’s report was released to the public Thursday. The special counsel’s probe found proof of Russian meddling in the 2016 election but did not establish evidence of a conspiracy between the Trump campaign and the Kremlin.

Mueller also did not take a stance on whether the president obstructed justice, but detailed 10 episodes in which Trump tried to interfere with the Russia investigation. He wrote that Congress has the authority to conduct its own probes into the president’s actions, a passage fueling much of lawmakers’ conversation about impeachment.

Democratic leaders in the House rejected calls to immediately launch impeachment proceedings, instead pledging to continue the ongoing oversight investigations and refusing to take the possibility of impeachment off the table. Some Democrats have expressed worry that impeachment would only fuel the president’s 2020 reelection campaign, arguing that removing him from office by defeating him at the ballot box next year would be more effective.

On Wednesday, Trump homed in on the constitutional phrase “high crimes and misdemeanors,” the standard for impeachment.

“Not only are there no ‘High Crimes and Misdemeanors,’ there are no Crimes by me at all,” the president said on Twitter. “All of the Crimes were committed by Crooked Hillary, the Dems, the DNC and Dirty Cops – and we caught them in the act! We waited for Mueller and WON, so now the Dems look to Congress as last hope!”

Here are the President’s tweets on the matter:

As most Americans know, the impeachment process, which is set forth in Article II, Section 4 of the Constitution, gives the House of Representatives the sole power to impeach the President, Vice-President, Cabinet members and other Executive Branch officials, and Federal Judges. A majority of the House must vote to impeach said official and if they do so then the case must be tried in the Senate in a proceeding where House members act as the prosecution. the Senate as the jurors. and the Chief Justice of the United States presides. Conviction in the Senate results in removal from office and such conviction requires a guilty verdict from two-thirds of the Senate membership. Over the course of the history of the United States, there have been nineteen impeachment trials in the Senate, including two of sitting Presidents. Of those, the only successful efforts have been against Federal District Court Judges otherwise convicted of crimes in Federal Court. The most recent impeachment trial in the Senate was of Federal Judge Thomas Porteus who had been convicted of crimes related to his failure to disclose certain financial relationships as required by law. (Source)

The Constitution states that impeachment and removal shall be based on the commission of “Treason, Bribery, or other high Crimes and Misdemeanors.” Not surprisingly, the open-ended nature of this provision has raised questions about what the proper basis for impeachment actually might be and whether there are any boundaries to the Congressional impeachment power outside of a trial in the Senate. Specifically, the debate over how to define “high crimes and misdemeanors” is nearly as old as the Republic itself and, at least so far, has defied a precise answer. In 1970, Gerald Ford, who at the time was the House Minority Leader famously said that “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” This is a position that essentially leaves the entire matter to Congress with no opportunity for the Courts to review the matter at all.

In 1993, the Supreme Court issued a ruling that appeared to accept Ford’s definition and declare that the Federal Courts have no role at all in the impeachment process beyond the fact that the Chief Justice is designated to preside over any Senate trial. In United States v. Nixon, a case brought by Federal District Court Judge Walter Nixon, who had been convicted of perjury and other counts in Federal Court and who is not related to the late President, a unanimous Supreme Court led by Chief Justice William Rehnquist essentially held that impeachment was a political process over which the courts had no jurisdiction. Nixon’s case was atypical in that the Senate had decided to designate a committee to hear the evidence in the case and then report back to the full body regarding its recommendations for the disposition of the case. Based on that report, the Senate voted to convict Nixon and remove him from office. Despite this departure from historical norms, the Court ruled that there was no basis for a court review of the impeachment process due to the nature of the Constitution’s language that gives the House sole power to impeach and the Senate sole power to try impeachment proceedings. The Court also noted that judicial involvement in the impeachment process likely violated principles of Separation of Powers given that the Judiciary was itself subject to impeachment. In any case, the court’s ruling in Nixon seems to make clear that there is no power for the judiciary to review any step in the impeachment process.

Writing at the Take Care blog, law Professors Joshua Metz and Laurence Tribe agree that Trump would have no legal standing to challenge impeachment. As Metz and Tribe note, during the debate over the Constitution, there were many drafters who believed that the appropriate venue for trying impeachment cases would be the Supreme Court itself. However, that option was ultimately abandoned due to several factors. Not the least of these is the fact that the membership of the Supreme Court is nominated by the President and that the idea of Justices appointed to the Supreme Court by a President over whose impeachment they might preside raises obvious conflict of interest issues. Additionally, a President convicted and removed by the Judiciary could potentially be criminally indicted after leaving office, meaning that the Justices that convicted a President could preside over his criminal case. The Founders also noted that the Supreme Court would be smaller than the Senate and. potentially, easier for a corrupt official to bribe or buy off. Finally, at the time of the 1787 Convention, the role of the Supreme Court as a truly co-equal branch of government was not clearly defined and the Founders were unsure if it would develop the legitimacy later conferred on it by cases such as Marbury v. Madison. Because of all this, the decision was made to give Congress sole jurisdiction over impeachment and trial of impeached officials and the Nixon case makes it clear that this jurisdiction is essentially absolute.

FILED UNDER: Congress, Donald Trump, Impeachment, Law and the Courts, Politicians, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Daryl and his brother Darryl says:

    Um…who, exactly, is going to stop him?
    We now have a president who has been freed of all constraints and can do damn well what he pleases.
    The Senate is his.
    He can sue the House, and take it to the SCOTUS…which he also owns.
    We now have a de-facto king, and his name is Dennison.

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  2. Kathy says:

    Now I think Dennison should be impeached, if only to see him trash the Supreme Court and the Associate Justices he appointed. Next, I bet, he’d try to get the whole court fired, or impeached.

    I seriously doubt even the author of that immortal quotation, “I like beer,” would stoop as low as El Cheeto demands.

  3. CSK says:

    The usual Trump cheerleading sites are–as of now–silent about this, as they tend to be when Trump says something even they know is egregiously stupid.

  4. @Daryl and his brother Darryl:

    The fact that there are not the votes in the Senate to convict is precisely why the House should not impeach at this time.

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  5. Daryl and his brother Darryl says:

    @Kathy:
    Justice Boof is bought and paid for. If you are counting on him to help save the Republic…I regret to inform you…

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  6. OzarkHillbilly says:

    Specifically, the debate over how to define “high crimes and misdemeanors” is nearly as old as the Republic itself and, at least so far, has defied a precise answer.

    This question was answered once and for always in ’98. “High crimes and misdemeanors” are whatever the majority party in Congress says they are.

  7. Daryl and his brother Darryl says:

    @Doug Mataconis:
    Well…that’s up for discussion. No President that has been impeached has been removed from office, so I’m not all that positive the Senate being willing to convict is an issue.
    Should the House decide to impeach…which becomes more likely with every person who refuses to testify…Dennison will direct his personal attorney, Baghdad Barr, to sue the House. It’ll find it’s way to SCOTUS…which will side with the POTUS, a la Bush v. Gore…

    Our consideration is limited to the present circumstances

    Everyone keeps claiming that our institutions are holding. They aren’t. The Republic is near it’s end. And it’s too late to do anything.

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  8. wr says:

    I suspect that Trump would get at least three votes on the court — although they’d undoubtedly add that, like Bush v. Gore, this would not stand as precedent, and that it would work for no one but Trump.

  9. OzarkHillbilly says:

    The Founders also noted that the Supreme Court would be smaller than the Senate and. potentially, easier for a corrupt official to bribe or buy off.

    Too bad they did not foresee the rise of political parties and how easy it would be to buy them, especially after the “Money talks and bullshit walks” Roberts Court came up with it’s Citizens United ruling.

  10. Daryl and his brother Darryl says:

    @Doug Mataconis:
    There is a school of thought that the Constitution is more important than political considerations.
    Antiquated…in this Day of Dennison.

  11. Kathy says:

    @Daryl and his brother Darryl:

    If you are counting on him to help save the Republic…

    I wouldn’t count on him for anything, including staying bought.

  12. OzarkHillbilly says:

    @Daryl and his brother Darryl: It is the constitution that makes impeachment inherently political.

  13. al Ameda says:

    What’s interesting to me is that Republicans paid absolutely no political price for impeaching Bill Clinton. They then probably knew that the senate would not convict, but they were not deterred in their efforts to attack bring Clinton down. It’s true that Clinton’s approval ratings spiked immediately thereafter, but in terms of political power, Republicans remained ascendant.

    Evidently Democrats are not supposed to take a Republican approach to this and impeach Trump because they can. There is irrational fear that Trump’s core support and approval will somehow increase if Democrats do what’s clear – hold hearings, further investigate and follow-up on the Mueller Report-documented instances of obstruction and toss this to the Senate.

    Could Democrats lose to Trump? -Of course.
    But I happen believe that Democrats will diminish their much needed turnout if they let this opportunity to stand for principle go by the wayside while Trump skates.

  14. Daryl and his brother Darryl says:

    @OzarkHillbilly:

    It is the constitution that makes impeachment inherently political.

    The Constitution doesn’t set out the two party system.
    Deciding to impeach, in this case, will necessarily be a decision of principle over politics.
    Deciding not to impeach, in this case, will be a decision of politics over principle.

  15. Joe says:

    I think its quaint that we still write articles on the premise that the things Trump tweets should reflect some basic understanding on his part of civics or the Constitution.

  16. OzarkHillbilly says:

    @Daryl and his brother Darryl:

    The Constitution doesn’t set out the two party system.

    The Constitution, as it is written, makes the 2 party system inevitable.

    Deciding to impeach, in this case, will necessarily be a decision of principle over politics.

    But politics will carry the day.

    Deciding not to impeach, in this case, will be a decision of politics over principle.

    Or maybe it is a decision not to put resources and energy into a battle that can NOT be won, and to put the same resources and energy into a battle that very well might succeed?

    IF the purpose is to remove trump from the White House, which has the better chance of success: Impeachment in the DEM House, and then trial in the McConnell led GOP majority Senate? Or the 2020 ballot box?

    I say, investigate, investigate, and investigate, and if evidence emerges that puts enough pressure on the GOP to change the senatorial math in a significant enough direction, fine. Failing that, make the argument in the 2020 election, make the GOP own the obstruction of the trump WH, the corruption of the trump WH, the incompetence of the trump WH, the racism of the trump WH, etc etc ad nauseum.

  17. Gustopher says:

    @al Ameda:

    Evidently Democrats are not supposed to take a Republican approach to this and impeach Trump because they can

    Democrats should impeach not because they can, but because the President has committed obstruction on a national security matter, and continues to provide cover for an enemy that attacked our country’s elections.

    His illegal actions have harmed our country and continue to harm our country.

    We can toss in emoluments while we are at it, and his recent decision to not cooperate with any congressional oversight if he goes through with it.

    The Republicans should also vote to impeach and convict. They won’t, but their failures should not be our failures.

    In contrast, Clinton’s illegal actions did not harm the country, and were minor enough that they did not merit overturning an election.

    I don’t support impeachment lightly, or for short-term political reasons.

  18. Daryl and his brother Darryl says:

    @OzarkHillbilly:

    I say, investigate, investigate, and investigate,

    Yup…and in the meantime Dennison is taking a victory lap, while continuing to obstruct and abuse his power.
    Democrats were given a gift by Mueller…a clear road-map to impeachment…and they are once again blowing it.
    Enough of this mamby-pamby nonsense.
    It’s time to put on the big-boy pants and do something, before the Republic is no more.

  19. Kit says:

    As most Americans know, the impeachment process, which is set forth in Article II, Section 4 of the Constitution, gives the House of Representatives the sole power to impeach the President…

    Maybe South Americans know that, but I’d be willing to bet that the majority of my fellow country men would falter at giving even the barest outline of what impeachment means or entails.

  20. Kylopod says:

    @al Ameda:

    What’s interesting to me is that Republicans paid absolutely no political price for impeaching Bill Clinton.

    I disagree–slightly. The GOP lost seats in the 1998 midterms–which is highly unusual for the out-party to the White House. Indeed, the only other times that has happened in the past century are 1934 (due to the Great Depression) and 2002 (due to 9/11). In other words, the out-party to the White House always gains seats in a midterm unless there is some big event working against it. In 1998, the impeachment was that event.

    Yes, the GOP “paid no price” in the sense that there wasn’t a fundamental shift in power, but that doesn’t mean it had no discernible negative impact on the GOP. You can be hurt by something and still win. A broken leg is still an injury even if you manage to drag yourself across the finish line–especially if you were given a 10-yard head start. Because the impeachment happened around the time of a midterm election in which a Dem was president, the GOP had a massive advantage by default, which greatly limited the damage they sustained. What if it had happened just before a presidential election? Then I think the negative impact on the GOP would have been far more clear-cut.

    I think the GOP went in thinking they were going to damage Clinton politically, whether they succeeded in removing him from office or not. Judged by that standard, their effort can only reasonably be considered a failure. The fact that they avoided complete electoral oblivion is not proof that they benefited from the situation.

    I’m aware of the argument that it helped them in 2000 because Bush ran on “restoring honor and dignity” to the White House, but that’s looking at things very myopically. At the height of Lewinsky-gate, Clinton’s approval ratings didn’t just spike a little, they reached (according to Gallup) the highest point of his entire presidency–73%. And they stayed high for the rest of his presidency (in fact Clinton holds the record for the highest final Gallup rating of any president). I don’t know about you, but I think that’s a pretty strong sign that the scandal did not make Clinton politically toxic, to put it mildly. Of course a case can be made that it hurt Gore indirectly by provoking him into distancing himself from the popular incumbent. But that just further goes to show that it was a mistake to conclude that Clinton was damaged by the scandal.

    For the record, I don’t think the current situation is analogous to 1998 in either the politics or the substance. But if you’re going to glean a “rule” from Lewinsky-gate that you can apply elsewhere, it’s foolish to look simply at who had the power in the end. That’s a poor way of measuring political effects, because it doesn’t take into account how other factors (such as the type of election coming up, and how much time there is before it) come into play.

  21. rachel says:

    @Doug Mataconis: Agreed. At this time the House must investigate, hold hearings, and continue Mr. Mueller’s work.

    Then, when the facts supporting impeachment are put plainly before the public (and I think it will be “when” not “if”), they should vote to impeach this lawless thug.

  22. rachel says:

    @rachel: Dang, the edit function isn’t working.

    I meant to add that House findings are going to change how the Senate considers impeachment.

  23. Barry says:

    @Doug Mataconis: “The fact that there are not the votes in the Senate to convict is precisely why the House should not impeach at this time.”

    Doug, at this point it’s clear that Trump and his crew will not respond to subpoenas. At this point, it’s impeachment hearings or surrender.