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.