Alan Dershowitz Is Wrong About Impeachments

By Keith E. Whittington, Lawfare

05 June 19

resident 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.

Dershowitz has idiosyncratic views on impeachment in a number of ways. He also takes a very restrictive view of what the constitutional phrase “high crimes and misdemeanors” means and so regards a great deal of potential presidential misconduct as beyond the reach of the congressional impeachment power. This is the kind of argument that one would expect a defense lawyer for a target of an impeachment inquiry to make, but it is not a mainstream view—for good reason. I’ve written about that issue elsewhere. Let’s set that problem aside.

Separate from the question of what counts as an impeachable offense is who gets to decide what counts as an impeachable offense. 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.

Dershowitz thinks the Court got it wrong in the Nixon case and that Trump is just the president to get the justices to change their minds. If the president thought that the House had overstepped constitutional bounds by attempting to impeach him for something that is not an impeachable offense, he might file an immediate motion in the courts to try to enjoin a Senate trial. If that fails, the president might make a motion to the chief justice, who presides over the Senate trial, seeking to have the case dismissed on the grounds that the charges do not meet the legal definition of an impeachable offense. The chief justice as presiding officer in a presidential impeachment trial would be asked to declare that, given the House’s articles of impeachment, the senators could not properly vote to convict given their oath “to do impartial justice according to the Constitution and the law.” (However the presiding officer rules on such a motion, a majority of the senators could overturn that ruling. If a majority of the senators thought at that stage of the proceedings that no impeachable offenses were being charged on the face of the House’s articles, then acquittal is a foregone conclusion.)

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.

To be clear, Dershowitz is encouraging the president to instigate a constitutional crisis in the hopes that it will force the Supreme Court’s hand in a way that might benefit the president. Why he thinks as either a legal or political matter the justices would want to back a president who defied a conviction by two-thirds of the sitting senators and was refusing to voluntarily leave the White House is not at all clear. Why he thinks that a president who had been encouraged to refuse to accept his conviction and removal by the Senate would suddenly acquiesce to the judgment of a court that affirmed his conviction and removal is perhaps even less clear. Why he thinks that advising a president who likes to reflect on having the support of “the tough people” who could make things “very bad, very bad” if pushed beyond “a certain point” that he could reasonably refuse to leave office after his conviction in a Senate trial is bewildering.

Let’s imagine the extreme case: The House impeaches the president for something that no one reasonably believes is an impeachable offense under the Constitution and the Senate convicts on that charge. Let’s make it simple: President Trump is impeached and convicted for the grave offense of wearing a navy blue suit jacket with black slacks in the White House. Dershowitz would say—reasonably, I believe—that such an impeachment and conviction itself would amount to a constitutional crisis. I would call it a crisis of fidelity, as Congress would be simply ignoring the relevant constitutional rule regarding impeachable offenses.

It is the nature of a constitutional crisis that the country would no longer be playing by the constitutional rules. Whether judicial intervention would be helpful in such a moment is ultimately a prudential matter rather than something dictated by the Constitution itself. It seems unlikely that a Congress able to overcome the supermajority hurdle for conviction would be cowed by an opinion issued by the Supreme Court. Indeed, the justices might soon find themselves as defendants in a Senate impeachment trial. But perhaps the justices would think they could help calm the situation by intervening on behalf of the embattled president against the overreaching Congress. Dershowitz imagines that in such a crisis “only one institution could resolve the issue.” He cites Justice Byron White and Justice David Souter, who both seem to have had a similar view of the Supreme Court as a potential savior of a crumbling republic. As a political scientist, this strikes me as a hopelessly naïve view of the power of the judiciary. If the country reaches that point, there will be a lot of other players to take into account before the justices would even have their say (The vice president? The cabinet? The people in the streets? The generals?).

We should not want to be in that world, but Dershowitz is pushing the president to imagine that this is exactly the situation the country is already in. He posits for the sake of argument the possibility of a “crisis caused by a Congress that impeached a president without evidence of ‘high crimes and misdemeanors’” and proposes that in such circumstances the president could and should “refuse to leave office.” From there, Dershowitz suggests, the president could expound that the House cannot “possibly [be] allowed” to impeach him “because there was no crime.”

One of the problems with the rhetoric of constitutional crisis is that it encourages political actors to imagine that the gloves have come off, that the rules no longer apply. And so they likewise imagine that any action they might take in response would be justified in the exceptional circumstances of the crisis, even if it would be unconscionable in the ordinary circumstances of normal politics taking place within the constitutional rules. It is wise to be extraordinarily cautious before suggesting to a sitting president that he alone is acting within his rights and that everyone else is behaving illegitimately and illegally.

But let us leave the seminar room behind and consider the real world. In the real world, there is no possibility that the president will be impeached, let alone convicted, for his fashion crimes. Instead, the president is at risk of being impeached for offenses that only those holding fairly extreme views about the impeachment power—people like Alan Dershowitz—think are outside the scope of the constitutional impeachment power. At best, the president is at risk of being impeached for offenses about which there can be reasonable disagreement on whether they rise to the level of high crimes and misdemeanors.

The constitutional case for impeachment might not be easy, but it is certainly not crazy. No justice has ever suggested that the Supreme Court should intervene in such ordinary disputes. No justice has ever suggested that it would be a constitutional crisis if the House impeached and the Senate convicted on the basis of charges about which there could be reasonable disagreement. It is not a crisis just because one side did not get its way. The only person initiating a constitutional crisis in the real world would be a president who refused to leave office after his conviction by the Senate. It is simply not credible to attempt to shift the blame for such a crisis to the Congress.

Both White and Souter thought it would be useful for the Supreme Court to hold open the possibility of judicial review of matters relating to impeachment because they did not want to “issue an invitation to the Senate to find an excuse ... to be dismissive of its critical role in the impeachment process.” They imagined that Congress would be more faithful to its own constitutional duties if legislators had some fear that the Supreme Court might some day review their work. There might be circumstances in which that is true, but impeachment is probably not one of them. But in any case, White and Souter only posited the possibility of the court’s involvement in the most extreme of circumstances. As White himself admitted, “as a practical matter, it will likely make little difference whether the Court’s or my view controls the case” because it would be “extremely unlikely” that the Congress would go so far beyond the bounds of the “very wide discretion” it had regarding the impeachment power. Justice John Paul Stevens thought it unhelpful and inappropriate to pontificate on such “improbable hypotheticals.” In the real world of likely impeachments, even White and Souter were urging a standard of extreme judicial deference to congressional judgments about how to use the impeachment power. That is, even if you took White’s and Souter’s view of the judiciary’s role in the impeachment process, you should not think the courts should intervene given any of the impeachment charges that are currently on the table.

Significantly, Chief Justice Rehnquist did not bother to address what should happen if Congress went completely off the constitutional rails, but his point about the fundamental constitutional design was in sharp contrast to White’s and Dershowitz’s vision of a constitutional edifice that rests on the backs of the justices. The founders, Rehnquist thought, had not simply entrusted the Constitution to the courts. Indeed, they had done the opposite. They gave Congress the ultimate check on the courts—the power of impeachment. It was to the popularly elected legislative branch that they gave the ultimate weapon. It was to the popularly accountable Congress that they gave the final responsibility for resolving constitutional controversies and exercising constitutional discretion.

To empower the justices to sit in judgment of whether Congress was using the impeachment power correctly would be to turn the Constitution on its head. It would transform a constitutional system that ultimately rested on the people into a constitutional system in which everyone ultimately answered to the judges. If we were really to worry about checks and balances, then we should pay attention to the checks and balances that the framers built into the impeachment power itself. The impeachment power was distributed across a bicameral elected legislature and pivoted on a hard-to-reach supermajority in the Senate. The protection against the abuse of the impeachment power did not depend on the whims of five Supreme Court justices but on the need for a two-thirds vote in the Senate. If the president loses Lindsey Graham, Pat Roberts and Thom Tillis (the senators who cluster around the 67th spot on a standard ideological scaling of the 116th Senate), then perhaps it is best to say he deserves to lose. If the president were to lose the support of more than a third of his own party caucus in a Senate trial, then it would be implausible to contend that he had simply been railroaded by a Senate intent on subverting the Constitution.

Rehnquist thought the political fallout from the Supreme Court attempting to reinstall a president into the White House after his conviction in the Senate rendered such an idea absurd. The influential Yale law professor Charles Black thought the viability of such a plan was “preposterous.” Even Dershowitz admits that such a scenario would be one of constitutional crisis—but he would be willing to go down that road anyway. It seems quite unlikely that a majority of the justices would want to take that journey with him. It is only courting trouble to suggest to the president that this is an available path.