Rudy Giuliani, personal counsel to President Donald Trump, declared yesterday that he has received advice by experts to sue members of Congress over impeachment efforts. If true, their expertise must be in areas other than constitutional law or impeachment. Such a lawsuit would be frivolous and it is unsettling that Giuliani would put any credence into such fringe advice.
Calling the impeachment effort as “worse than McCarthy,” Giuliani revealed that he had sought legal advice on the issue: “I had a couple of talks with civil rights lawyers and a constitutional lawyer today and here’s what they’re recommending: that we should bring a lawsuit on behalf of the president and several of the people in the administration, maybe even myself as a lawyer, against the members of Congress individually for violating constitutional rights, violating civil rights.”
In a long parade of uniquely bad ideas, this would be the final climax. First, the allegation of self-dealing in the Ukrainian call would be a valid basis for an article of impeachment. It would still have to be proven and there are defenses for any such trial that I have previously discussed. This would be viewed by a court as a facially legitimate inquiry. Second, courts do not second guess the House on such efforts. While there continues to be a debate over what might be reviewable in an impeachment proceeding, it is exceptionally unlikely that a court would seriously question this effort.
The claim is that the impeachment interferes with a president’s inherent authority over foreign relations under Article II. That is facially frivolous. The White House can object on the basis of executive privilege in any demand for testimony or documents. In Nixon v. United States, 506 U.S. 224 (1993), the majority opinion (written by by William Rehnquist) deferred to the Congress in such conflicts, ruling that Article I, Section 3 of the Constitution gives the Senate the “sole power to try all impeachments.” The same is true of the power to impeach.
In other words, this dog won’t hunt.