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Impeachment and Judicial Review

Recently the President suggested that the courts would intervene in his favor if Congress impeached him. Lawyers, scholars, and commentators mocked him for this because the Constitution explicitly places the power to impeach with Congress. But some of the President’s supporters, namely Rudy Giuliani and Alan Dershowitz, argue that judicial review – the power of courts to rule acts of Congress unconstitutional – is proper when it comes to impeachment. This alarmed people who are concerned that a Trump stacked judiciary will interfere with Congress impeaching Trump.

This concern is overblown. For the Supreme Court to declare a Trump impeachment unconstitutional, it would have to overturn a unanimous Supreme Court decision from 1993, Nixon v. United States, holding that impeachment is a non-justiciable, political question. (Note that the Nixon in this case name is not President Nixon, but a federal judge with the same name.) In plain English, that means that the courts don’t have jurisdiction to consider the merits of whether Congress impeaching someone is unconstitutional. The conservative Chief Justice William Rehnquist wrote the majority opinion in Nixon, and the conservative Justice Clarence Thomas – who is still on the Court – as well as the conservative judicial hero Justice Antonin Scalia voted in favor of it. Moreover, then Solicitor General Kenneth Starr, Justice Kavanaugh’s mentor, argued the case for the government. To say nothing of the fact that Justice Rehnquist had written a book on impeachment by the time he wrote the Nixon decision. In short, the decision has impeccable conservative credentials.

Despite the darkness of the times, I’m not cynical enough to believe the Court is going to overturn Nixon. What does concern me is the cynical suggestion by Trump, Giuliani, and Dershowitz that judicial review is even a possibility when it comes to impeachment. In doing so they sow doubt about our bedrock constitutional principles. They promote this view in the service of faction and self-interest rather than in the best interests of our Republic. They’re desperate to protect the person of the presidency – Trump – rather than the office of the presidency itself. And this has the hallmarks of fascism because it’s an appeal to an arbitrary application of the law and the cult of personality.

It’s one thing to disagree about the interpretation of the law, say, for example, what constitutes unauthorized access to a computer under the Computer Fraud and Abuse Act. Ultimately, juries and judges decide those disagreements because that’s part of the constitutional system we’ve implicitly agreed to. In exchange for the social order that the government provides – whatever you think of the merits of that order – we’ve given judges and juries the final right to interpret the law. The Constitution embodies that societal pact.

But it’s something different and dangerous to argue that the explicitly agreed to background features of our constitutional system don’t apply to you because you don’t like the outcome. It’s the difference between arguing an interpretation of the law within an agreed upon framework and attacking the framework. Between arguing an interpretation of a statute, or a constitutional provision, and arguing the Constitution doesn’t apply to you. When you flaunt the constitutional framework because it’s against your self-interest you’re doing something dangerous to our Republic. And you risk the violence of faction that James Madison warned about in the Federalist No. 10.

Unfortunately, this is already happening with this administration. The Department of Justice is ignoring court orders it doesn’t like. The President is using emergency powers to fund projects without congressional approval despite the fact the Constitution gives the power of the purse to the House of Representatives. A power put there as a check on a tyrannical executive. You don’t have to come to any decisions about the merits of these actions – whether the court order was correct, or whether a border wall is good or bad – to conclude that the administration’s response to them violates the Constitution.

Some Constitutional provisions just aren’t up for reasonable debate. A 34-year-old cannot be elected President. The three branches of government are the legislative, executive, and judicial. The President serves a four-year term (Trump has arbitrarily suggested that this black and white rule may not apply to him). And so on. The point is that the constitutional buck stops with the basic constitutional framework that the People have agreed to. And if, as is happening, one faction cynically questions the foundations of our constitutional republic, it can lead to civil war. That’s why when Dershowitz implausibly and cynically argues that impeachment is subject to judicial review – something no court has ever held – he’s playing with fire.

Most people don’t spend their time studying the Constitution because they have busy lives. So they often understandably trust to lawyers and judges to tell them what the Constitution means. And when it comes to the Constitution and impeachment, Dershowitz is abusing that trust in the name of faction. To see why, let’s look at the Constitution’s impeachment clauses, and then turn to the Supreme Court’s definitive decision in Nixon v. United States, 506 U.S. 224 (1993).

Article I, § 2, clause 5 of the Constitution grants the House of Representatives “the sole Power of Impeachment.” That means that the House has the sole power to decide if impeachment proceedings are warranted. Think of it like a prosecutor deciding to indict someone. If the House decides impeachment is warranted, the question moves to the Senate for trial. Article I, § 3, clause 6 of the Constitution states:

The Senate shall have the sole Power to try all lmpeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

It’s the latter clause that is at issue in Nixon. Nixon‘s facts are simple. Nixon was a federal judge who went to jail because he lied to a grand jury that was investigating whether he had accepted a bribe. Nixon refused to resign. He kept collecting his judicial paycheck while in jail because federal judges have lifetime appointments and can only be removed by impeachment. So Congress impeached and convicted him, thereby stripping him of his judgeship. He then filed a lawsuit claiming his impeachment violated the Constitution. He lost every step of the way up to the Supreme Court, and at the Supreme Court. Every court held that they couldn’t decide the case because impeachment was a political question exclusively for Congress to decide. It wasn’t a close question.

Nixon argued that because the Senate had a committee review the evidence and take testimony before referring the matter to the full Senate for trial, it violated Article I, § 3, clause 6’s mandate that the Senate “try” all impeachments. In essence, he argued that because his case was heard in committee before it was heard by the full Senate it denied him the right to have the full Senate review the evidence against him. This is despite the fact the committe submitted its transcripts and evidence to the full Senate. It’s a stupid argument and it’s not important that you understand it. What’s important is what the Supreme Court held and why.

First, the Court held that the Constitution places no limits on how the Senate chooses to try an impeachment beyond what’s explicitly in the text of the Constitution: 1. That there is a trial in the Senate; 2. That the Senators are under oath or affirmation; and, 3. That it requires a 2/3 vote to convict. Otherwise, the Senate is free to handle an impeachment as it sees fit.

Second, the Court held that the word “sole” in the phrase “the Senate shall have the sole power to try impeachments” means what it says. The judiciary doesn’t have the power of judicial review over an impeachment because then the Senate’s impeachment power wouldn’t be sole anymore, it would be shared. Article III of the Constitution, which governs the judiciary, doesn’t discuss impeachment.

Third, the Court notes that while you can find a discussion of judicial review in the notes of the Constitutional Convention, there is no such discussion of judicial review when it comes to impeachment. And even if there was, it doesn’t get you to judicial review of impeachment because it’s the Constitution that governs us, not the discussions about what or what not to put in it.

Fourth, Alexander Hamilton in the Federalist Paper No. 65 (and 66) concurs with the Nixon analysis by saying the Supreme Court doesn’t have a role to play in impeachment. To the argument that there’s no judicial check and balance on an unconstitutional impeachment by the Senate Hamilton retorts that the requirement of a 2/3 vote prevents abuse. (When was the last time the Senate agreed on anything by a 2/3 vote?) Hamilton also points out that it doesn’t make sense to allow judicial review of impeachment because, in the case of an impeached judge, the judiciary would be engaged in a conflict of interest by ruling on the impeachment of one of its own.

You should read the decision for the fine details. The crucial point is that the Supreme Court has definitively said that courts don’t have jurisdiction to review congressional impeachments because impeachment is solely the province of Congress. And that our legal traditions back this up. But Dershowitz cynically muddies the waters on this point.

He does this by quoting non-precedential statements in the concurring opinions in Nixon that Justice White and Justice Souter wrote. He doesn’t bother to discuss Justice Rehnquist’s majority opinion, or the fact that he’s citing a footnote to Justice White’s concurrence, or that Justices White and Souter are discussing extreme hypotheticals which have never happened in U.S. history. White and Souter are talking about whether the Supreme Court has the power of judicial review over impeachment if the Senate improbably convicts without a trial. Not, as Dershowitz disingenuously implies in his article, whether the Supreme Court can review the sufficiency of the evidence from a Senate impeachment trial and reverse on this basis, or the like. No Supreme Court justice has ever argued that.

Dershowitz’s arguments are disingenuous and dangerous because they will stoke the fires of faction should Trump be impeached. Because they deny finality to any Senate impeachment conviction. For this reason alone the Framers were wise to place the power of impeachment solely with Congress – it helps prevent endless clashes between factions. As the majority opinion in Nixon puts it:

This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated.

Nixon, 506 U.S. 224, 236 (1993)

Concerns about the lack of finality aside, Justice White and Souter just get it wrong by indulging in the speculative logic of improbable hypotheticals while ignoring the political theory foundational to our Constitution. Here’s Justice White’s (from a footnote) quote from Dershowitz’s OpEd:

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.

Id. at 247 n. 3.

Here’s Justice Souter’s quote from his concurrence, in full because Dershoswitz selectively edited it:

If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply “ ‘a bad guy'” [quoting Justice White’s concurrence], judicial interference might be warranted.

Id. at 254.

Dershowitz leaves out the phrase “say, upon a coin toss, or upon a summary determination that an officer of the United States was simply a bad guy.” But that phrase is important because it highlights the fact that what Justice Souter and Justice White are talking about are extreme counterfactual situations – ones where the Senate convicts without trial, or with less than a 2/3 vote, or without the House having voted to impeach first. Extreme counterfactual situations that have never happened. But even if they did occur, it doesn’t follow that judicial review is proper. To do so is to arrogate powers for the Court that aren’t explicit in the Constitution. And this is ironic given Justice White’s professed belief that you shouldn’t read powers into the Constitution that aren’t there and are unsupported by our history:

I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.

Roe v. Wade, 410 U.S. 110, 221 (J. White, dissenting).

Aside from reading into the Constitution judicial powers that aren’t there and are unsupported by history, Justice White and Souter’s positions fail as a matter of logic.

Their hypothetical argument is that the Supreme Court can exercise judicial review in situations like when the Senate convicts the President without a trial. This argument is the same kind of argument you hear from the annoying student in your college class that won’t shut up about counter-factual scenarios that he thinks proves everyone wrong and him smart. But as a matter of syllogistic logic, Justice White and Souter’s arguments don’t hold up.

The classic example of a syllogistic logic argument takes the form:

  1. All women are mortal.
  2. Sappho is a woman.
  3. Therefore, Sappho is mortal.

Now try making a syllogistic argument from Justice White’s and Souter’s hypotheticals:

  1. The Senate must have a trial before an impeachment conviction.
  2. The Senate convicted without having a trial.
  3. Therefore, judicial review of an impeachment conviction is proper.

Proposition 3 doesn’t follow from the first two. As a matter of fact, it begs the question. It assumes what it’s trying to prove. And that holds true whether you insert “2/3 vote” for “trial,” or whatever, in the first two propositions. There’s no syllogistic logical argument you can make for Justice White and Souter’s, and by extension, Dershowitz’s position, that necessitates judicial review of congressional impeachment.

Dershowitz intuits the problem and tries to avoid it by claiming that judicial review of cases of impeachment is just like judicial review of a statute’s constitutionality. He appeals to the fact that judicial review is a power not explicitly granted in the Constitution but one that Justice John Marshall famously claimed for the Court in Marbury v. Madison:

And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.

Aland Dershowitz, “The Supreme Court could overrule an unconstitutional impeachment” The Hill, May 31, 2019

But the judicial review in Marbury involves the question of whether a statute passed by Congress was unconstitutional, not whether the exercise of a specific power explicitly designated by the Constitution solely to Congress is unconstitutional. Marbury simply held that a statutory grant of original jurisdiction to the Supreme Court under the Judiciary Act of 1789 was unconstitutional because the text of the Constitution didn’t give Congress that power. Marbury is about Congress claiming a power it doesn’t have under the Constitution, whereas judicial review of a congressional impeachment would involve review of a power Congress explicitly has under the Constitution. Arguing that the Supreme Court has the power of judicial review to declare congressional statutes unconstitutional because they violate the text of the Constitution is different than saying the Court has the power to judicially review explicit, “sole” grants of power to Congress. But counterarguments can be made on this point, and a discussion of the theory of judicial review can fill up a book. There’s a more fundamental reason that judicial review of impeachment is improper.

The foundational political theory of the Constitution is that We the People are sovereign. And the sovereignty of the People is embodied in our legislature. The Framers are just following political and legal theorists like John Locke and William Blackstone on this point. This is why Congress comes first in the Constitution, the Executive second, and the Judiciary third. The order is not arbitrary, it’s an expression of the sovereignty of the People over the Executive and Judiciary.

Congress, as the sovereign representative of the People, ultimately decides whether to expel someone from the People’s government. And its power to do so is plenary. Because no other branch embodies the sovereignty of the People. The Executive is just the magistrate the People have designated to execute their will. The Executive serves at the People’s pleasure, not the other way around. Likewise, the People have designated the judiciary the task of interpreting our laws. But they serve at the pleasure of the People as well. And impeachment is the mechanism by which the People remove the executive or judge who displeases the People. Thus, it is a plenary power of the legislative branch unreviewable by the other branches whose authority is entirely dependent upon the People.

If we cannot agree on this point then the fissure of faction is upon us and violence lurks on the horizon. This has happened repeatedly throughout history. The fall of the Roman Republic, the English and American Civil wars, and the collapse of the Weimar Republic are just four examples. Under our Constitution, and the tradition it is based on, the state exists by the consent of the People with the understanding that it will act for the public good and prevent the violence of faction. But when self-interested parties promote cynical skepticism as to the core principles our society bases that consent on, they risk dissolving our pact and releasing mere anarchy upon our world.

Elissa Stanton helped edit this. All errors are mine, and you can direct corrections or vitriol to H/t to @Bobkitten for pointing out Nixon v. U.S. to me and correcting my initial confusion of it with the Supreme Court case of the same name involving President Nixon, and discussing the issues with me.

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