What are the chances that a former Harvard lawprof, criminal defense lawyer, raging liberal, whose time had come and gone, would be relevant again? Not bad, as long as you’re willing to sling the crazy on behalf of the the president who makes Nixon look trustworthy and George W. look smart.
On the one hand, Alan Dershowitz challenges many of the wacky excesses of the “resistance,” which has shown no reluctance to resort to TrumpLaw, irresponsible reversals of law and logic specifically directed at a president for whom law and logic would mean nothing if he were aware of them and capable of grasping them. But on the other hand, persisting in the defense of the absurd has put Dersh in the position of having to push the envelope ever farther. When it comes to impeachment, Dersh pushed it over the edge.
President Trump has suggested periodically that the Supreme Court would intervene to block a hypothetical impeachment and trial since (he argues) he has not committed a high crime or misdemeanor. Of course, Trump does not just make this stuff up. He has actual lawyers advising him who tell him these things—among them, Rudy Giuliani, who recently tweeted that the “Supreme Court could overrule an unconstitutional impeachment.” Giuliani, in turn, was amplifying an argument that Alan Dershowitz has been making for a while, most recently at The Hill. But Dershowitz is wrong.
As Keith Whittington notes, there are two prongs to Dersh’s argument, the first being what he calls Dersh’s “idiosyncratic” view of “high crimes and misdemeanors.” Dersh takes the position that crimes means crimes, as in whatever conduct is criminalized by Congress in the same technical sense as a criminal indictment of a groundling.
Legal scholar Alan Dershowitz writes in a new book that the Supreme Court could intervene if President Trump is impeached, overturning a congressional vote to remove him from office for “collusion” with Russia during the 2016 election.
Even if public evidence of collusion were to emerge, the Harvard Law School professor emeritus writes in “The Case Against Impeaching Trump” that it would not be a crime, contending Trump could collude to let Russia retake Alaska without grounds for removal from office.
But the more significant question is raised by the question, who decides? Dersh would put the question to the Supreme Court, based upon its primacy in constitutional interpretation. After all, if the decision of what constituted a high crime and misdemeanor was left to Congress, it would answer itself by definition, as the House would indict or not, and the Senate would convict or not. If either ends with “not,” problem solved. If both houses lower the boom, then the president gets his answer.
What’s the Supreme Court got to say about it?
The traditional answer to that question has been that Congress gets to decide. The House gets to choose who it wants to impeach, and in an impeachment trial the Senate gets to make the final judgment on whether the House’s action was justified. When the Supreme Court was asked to weigh in on the question of whether the Senate had properly conducted an impeachment trial in the case of Judge Walter Nixon, it firmly rebuffed that effort.
Chief Justice William Rehnquist observed, “The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers.” The entirety of the impeachment power, the Supreme Court ruled, was a political question firmly entrusted into the hands of the House and the Senate in exercising their “sole” power in that process and the courts had nothing to do with it.
Of course, the House and the Senate could settle on a flawed interpretation of the constitutional impeachment power. It is just that Congress is unreviewable in this context, just as the Supreme Court is effectively unreviewable in the context of many other constitutional controversies.
The ultimate point is whether Congress can “settle on a flawed interpretation.” As Justice Jackson said, the Supreme Court “is not final because it’s infallible, but we are infallible only because we are final.” The same would apply to Congress in the exercise of the impeachment power if there was no mechanism for review, so if they reject Dersh’s cramped and technical interpretation of crimes and view impeachment as a purely political process, there can be no “flawed interpretation” as the outcome in the Senate would be the interpretation by virtue of finality, if nothing else.
This is where Dersh pushes the envelope just a little too far.
In his latest foray, Dershowitz proposes the worst possible option. If the Senate holds a trial and convicts, Dershowitz suggests, the president should simply refuse to leave office and insist that the Supreme Court adjudicate his claim that his conviction violated the Constitution. Dershowitz stakes out the strongest possible claim for judicial supremacy. The Supreme Court and the Supreme Court alone should resolve all disagreements about constitutional meaning, and the president should simply defy Congress until the court intercedes.
The image of Trump, following removal from office by the Senate, being forcibly evicted from the West Wing might be a sight to behold, but be highly unlikely to produce the outcome Dersh envisions. Would a nation calmly let Trump remain isolated in the White House, a nation without a recognized president, a football without the current codes, until the Supreme Court rules or, as is almost certainly the case, refusing to take the papers, refuses to rule?
Whittington uses the phrase “crisis of fidelity” rather than constitutional crisis, which well captures the point: if the Senate convicts the president for a “crime” the nation refuses to accept as a justified basis for impeachment, then the failure of fidelity falls on Congress. But if Trump is convicted by the Senate, even though he and Dersh dispute whether it’s sufficiently criminal-ish to suffice as a “high crime and misdemeanor,” then the crisis of fidelity falls on Trump.
Either way, it’s purely political, which is what impeachment was always meant to be. The only question then is whether the guys with guns protect the president from eviction or do the evicting.* That’s the scenario that should never happen, and Dersh is absolutely wrong to promote a course of conduct that would lead to such a scenario.
*Ken “Popehat” White has kindly provided a visual to assist in what this might look like.