On Wednesday morning, Donald Trump tweeted that “if the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.” I noted that was a threat based in ignorance, but Quinta Jurecic of Lawfare says that the idea didn’t originate with Trump.
Prominent Trump defender Alan Dershowitz recently made an argument along the same lines, writing in an essay on “The Case Against Impeaching Trump” that, “Were a president to announce that he refused to accept the actions of the Senate in voting for his removal … and that he would not leave office unless the Supreme Court affirmed his removal, the people might well agree with him.”
It is probably safe to assume that Trump doesn’t understand how impeachment works and has no knowledge of how the founders discussed its inclusion in the Constitution. But Dershowitz should know better.
Scott Bomboy wrote that impeachment was “one of the most hotly debated clauses in the Constitution,” so there is a record of their deliberations. Included was the topic of whether the Supreme Court would be the trial venue for conviction. That idea was rejected in favor of giving the responsibility to the Senate. Alexander Hamilton’s position won the day.
Hamilton argued strongly for the Senate and not the Supreme Court as the place where impeachment charges would be considered at trial related to “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
While Trump’s statement is not constitutional, it does tell us something that is important to keep in mind. As we’ve learned, this president demands complete loyalty from everyone with whom he associates. He has been emboldened in that demand by the loyalty we saw on display from his current attorney general—William Barr. Trump assumes that he can count on the same kind of loyalty from Supreme Court Justices Clarence Thomas and Samuel Alito. Both Neil Gorsuch and Brett Kavanaugh were chosen specifically for the purpose of demonstrating their loyalty. That leads to the question of whether the president can count on Chief Justice John Roberts to be loyal.
The possibility of that question being answered by the Supreme Court after impeachment in the House and conviction in the Senate is not likely for a variety of reasons, not the least of which is the fact that a Republican-controlled Senate is unlikely to convict. Instead, Chief Justice Roberts will have to weigh in on the constitutional crisis that is unfolding right now.
House Democrats currently have several investigations underway, and, as we’ve seen, the White House has unilaterally refused to comply. On Wednesday, the president made his intentions clear by telling reporters that, “we’re fighting all the subpoenas.” That threat is beginning to clarify the situation for some reluctant Democrats.
I spoke today with Rep. Gerry Connolly, a Dem on House Oversight. He said he believes the politics of impeachment have changed since Monday in light of wholesale refusal of Trump admin to comply with subpoenas. “I think we are now in the midst of a Constitutional crisis,”
— Lauren Fox (@FoxReports) April 24, 2019
It is worth noting that one of the articles of impeachment against Richard Nixon was for the exact same thing we are now seeing from Trump.
Article III alleged in part that Nixon: failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas.
This is where Trump is counting on the loyalty of the conservative members of the Supreme Court. He hopes that this battle is fought out in the courts, rather than in Congress.
There are those who are suggesting that these challenges won’t reach the Supreme Court before the clock runs out, which is part of the strategy. But that’s where Trump’s hubris could come into play. He thinks he has a Court that will protect him and has demonstrated on several occasions that his administration is prepared to bypass the lower courts and ask the Supreme Court to weigh in peremptorily. It is very likely that he will do so again.
When writers at Axios contacted Republican white collar defense attorneys and asked them to comment on whether the White House strategy sets a bad precedent for future presidents, they laughed at the idea that Trump would care about precedents. They are right to do so. But the same can’t be said of Chief Justice John Roberts, who Michael O’Donnell describes this way:
He portrays himself as an institutionalist, but we do not yet know to what extent this is true. He must necessarily prove himself on a case-by-case basis, which injects a note of drama into his movements. Roberts is the most interesting judicial conservative in living memory because he is both ideologically outspoken and willing to break with ideology in a moment of great political consequence. His response to the constitutional crisis that awaits will define not just his legacy, but the Supreme Court’s as well.
It has been noted that Roberts’ primary concern is the legacy of the Supreme Court under his tenure as Chief Justice. It seems inevitable that that concern will eventually go head-to-head with this president’s abandonment of precedent and his contempt for the rule of law.
Democrats will rightly be concerned if the fate of the rule of law in this country ultimately rests in the hands of Chief Justice John Roberts. But it is important to remember that the possibility was created when Majority Leader Mitch McConnell denied President Obama a hearing on the nomination of Merrick Garland to the opening on the Supreme Court that Trump eventually filled with Neil Gorsuch. Precedents have been under assault by the Republicans for years now and have reached their zenith in a president who has always placed himself above the rule of law. Because of that, we could find ourselves in the position of having to rely on Roberts as the one person who can stop our descent into tyranny.