How The Supreme Court Could Be Pulled Into The Trump Impeachment

Supreme CourtBelow is my column in the Washington Post on the real possibility that the Supreme Court could be pulled into the Senate impeachment trial if witnesses are allowed. If you hated Bush v. Gore, this could be one sequel that you will not want to see.  Certainly few on the Court are eager to play a role in the possible removal of an American president.

Here is the column:

After its 2000 decision in Bush v. Gore, Justice David Souter reportedly “wept” when the role of the Supreme Court was raised in determining the outcome of the presidential election. The court continues to grapple with the legacy – and controversy – of that decision. With the still developing Senate trial in President Trump’s impeachment, the court could soon be pulled into the flip side of Bush v. Gore, not who could be declared but who should be removed as president.

Despite what Trump counsel Rudolph W. Giuliani has declared in calling for the court to nullify the impeachment, the Constitution does not state any function of the court in impeachments other than the limited role of the chief justice as the presiding judge. That suits most justices just fine. Most justices would prefer to drink molten lead than get pulled into another presidential legitimacy case.

Yet, the Trump impeachment trial may force that cup to the lips of the justices. With a trial starting in the Senate on Thursday, the looming question over the Senate will be whether to allow witnesses. While I strongly disagreed with the House in rushing this impeachment forward rather than waiting a couple of months to complete its record, I still support a trial with witnesses in the Senate. If witnesses are called, however, the court could be forced to finally face a question more than 50 years in the making.

In 1974, the Supreme Court ruled in United States v. Nixon and ordered the release of the Watergate tapes to special prosecutor Leon Jaworski – and ultimately to Congress. Nixon resigned roughly two weeks later. That case has spawned a variety of interpretations of its rejection of executive privilege, including one interpretation I call the “Nixon fallacy.” The fallacy goes something like this: Impeachment so exceeds in importance executive-privilege claims that the Supreme Court has already declared that criminal or impeachment investigations take precedence over privilege so any withholding of testimony or documents is per se obstruction.

In reality, the Supreme Court never said anything like that. Yes, the court rejected what it described as the claim of an “absolute, unqualified Presidential privilege of immunity” to withhold relevant evidence in a criminal investigation. But it did not say that a president could not invoke privilege over the testimony in an impeachment proceeding or that such privilege assertions could not ever prevail. Indeed, it did not even categorically reject such claims in a criminal investigation but simply said that “without more” of a justification from Nixon, the tapes would have to be turned over to the Watergate special prosecutor.

A national security adviser speaking to a president about the delivery of military aid to a foreign country is the very definition of a core protected area of executive privilege. That does not mean the White House would win in a fight over John Bolton’s testimony. However, it does mean Trump has a viable and recognized basis for withholding information in this area – creating an issue capable of judicial review and resolution.

So, here is one scenario. The Senate crosses the Rubicon and both sides call witnesses from Bolton to Hunter Biden to give depositions. While Biden would not be able to refuse to testify absent a Fifth Amendment plea (which could be overcome by a grant of immunity), the White House would try to halt Bolton’s participation under a claim of privilege. The White House would presumably push the case into the federal district court, which would have to review each area of questioning to determine if executive privileges or congressional prerogatives should prevail. Appeals would follow. And all that assumes the Senate is willing to wait for those courts to rule.

The problem is time. It took only three months to litigate the Nixon tapes controversy from the district court to a final decision of the Supreme Court. By refusing to delay the impeachment vote, the House effectively gave up control of its own case. The Senate may have little time or patience to allow the House to correct that blunder.

In my view, Bolton should testify. Indeed, he should have been subpoenaed in the House. There are valid privilege claims to be raised, but he can clearly answer questions narrowly tailored to the issue of a quid pro quo.

The only body less eager to grapple with those claims than the Senate is the Supreme Court. The aversion is only enhanced by the possibility of recusal of Chief Justice John G. Roberts Jr. in any appeal, leaving the court with a risk of a tie vote on a critical impeachment question. Over a decade after she ruled in Bush v. Gore, Sandra Day O’Connor was still expressing regrets and wondered aloud, “Maybe the court should have said, ‘We’re not going to take it, goodbye.'”

But that may be difficult when the Senate is waiting roughly 1,500 feet away for an answer on what Bolton might say. Three branches of government would literally be locked in a constitutional hold with the curious figure of Bolton sitting in the center. Before he speaks, the court may have no alternative but to be heard.

Jonathan Turley is the chair of public interest law at George Washington University and served as the last lead counsel in an impeachment trial before the Senate in defense of Judge Thomas Porteous. He is also a CBS and BBC legal analyst.

54 thoughts on “How The Supreme Court Could Be Pulled Into The Trump Impeachment”

  1. It has been stated by others that Media Matters trolls Turley’s forum and litters the blog with the same TDS talking points on a daily basis.

    ……

    Media Matters Whines About Trump’s Impeachment Team Appearing on Fox News Too Often

    Just when you think the progressive left can’t get any more ridiculous, they manage to surpass your expectations. Media Matters for America, a supposed media watchdog, published an article on Friday lamenting the fact that Fox News has featured members of President Donald Trump’s impeachment defense team too often for the leftist organization’s liking.

    The article, titled, “Trump’s new impeachment defense team has been on Fox News over 350 times in the past year,” lists the number of times each member of the impeachment defense team has appeared on the news network:

    “On January 17, CNN’s Kaitlan Collins and Pamela Brown reported that attorneys Ken Starr, Alan Dershowitz, and Robert Ray are all expected to join President Donald Trump’s legal team for his impeachment trial in the United States Senate. The Washington Post’s Josh Dawsey reported that former Florida Attorney General Pam Bondi will also be joining the team. Combined, Starr, Dershowitz, Bondi, and Ray have made at least 365 weekday Fox News appearances since January 2019.”
    The author goes on to break down their 365 number by listing the number of times each individual member of the team has made appearances on Fox News. You would think these folks would get bored, but it appears Trump hatred is a powerful motivator.

    But why is this an issue given the fact that every other major television news outlet has been trumpeting the virtues of the Democrats’ attempt to remove the president from office since House Speaker Nancy Pelosi announced that they would be initiating the impeachment process? According to Newsbusters, establishment media outlets have prioritized the impeachment proceedings over other important new in the first 100 days since the Democrats began their efforts to remove Trump:

    “In the first 100 days since House Democrats began their impeachment push on September 24, ABC, CBS and NBC have aggressively aided the effort. A Media Research Center analysis finds the Big Three evening newscasts have battered the President with 93% negative coverage and promoted impeachment at the expense of nearly all other Trump news.”
    Newsbusters noted that ABC, CBS, and NBC have “generated a combined 849 minutes of evening news coverage” about impeachment. By way of comparison, the site points out that after Special Counsel Robert Mueller was appointed to pursue the fallacious Russia collusion hoax, “it took those same newscasts more than twice as long (until December 29 of that year, or 226 days) to register the same amount of airtime for the Russia investigation.”

    It appears the progressive media machine might have more faith in impeachment than they did the Russiagate sham. And yet, Media Matters doesn’t seem to have an issue with this. The group seems to believe that Fox News allowing the president’s impeachment team to appear on its networks constitutes some type of journalistic malfeasance, but they see nothing wrong with progressive news outlets spending 849 minutes in 100 days celebrating the effort to remove him.

    Given the fact that 93% of the left’s news coverage was spent bashing the president, Media Matters’ protestations are easily exposed as disingenuous. They are not concerned with fairness, they only want the American public to consume the news they deem to be acceptable. But at this point, can any of us be surprised?

    redstate.com

  2. The charge of the Supreme Court is merely to assure that actions comport with law. The The Senate has “sole Power” to try all Impeachments. No entity other than the Senate has any authority related to an impeachment trial. That must be the finding of the Supreme Court or the Supreme Court must be impeached and convicted for abuse of power, usurpation, subversion, nullification et al.

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton
    _________________

    Article 1, Section 3

    The Senate shall have the sole Power to try all Impeachments. 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.

    1. You need to go back to grade school, because you missed a couple of lessons in reading comprehension. Cutting and pasting, especially out of context, has no meaning.

      If you want to know why the Senate was chosen as the court of removal, then read the whole of Federalist #65 by Hamilton, he makes the case beyond any need for interpretation.

      Before the Senate can act as the court of removal it must be properly assembled by State, and each has to have equal Suffrage to reach a 2/3 majority consensus on the fining of impeachment to remove the accused!

      1. “ Cutting and pasting, especially out of context, has no meaning.”

        That! is! rather! rich! considering! you! do! this! without! fail!

        And for the love of Warriner’s Grammar stop using !!!!

        😜

        1. FPR does not want the verbatim section or the “manifest tenor” to be known publicly, as does not the Supreme Court. It is orders of magnitude more difficult to “legislate from the bench,” illicitly modify the Constitution and impose one’s will if the language of the law is made public. FPR believes he has a better chance of success perpetrating his fraud and prevarication if verbatim passages of the fundamental law are not “cut and pasted, especially out of context.” If one must simply read and adhere to the literal text of the Constitution, one actually has very little to do and is required to demonstrate very little capacity.

          Americans don’t need eccentrics or Supreme Court Justices rewriting the rules. Simply reading them will do nicely.

          Anyone can play Monopoly. Just flip the box top and read the rules. It’s easy.

      2. “Sole” means the only one. The presiding Chief Justice is made subordinate by the phrase “sole power.” The Senate will set the rules and those rules will be whatever Mitch wants and can obtain the votes for. The adjunct Chief Justice will preside over the impeachment trial following the rules and procedures established by the Senate, which enjoys “sole power.” The Constitution implements rational governance. It does not provide for hysteria, incoherence, chaos and anarchy. The Senate has “sole power” and every other entity is subordinate with no power to challenge the Senate which has “sole power.”

  3. The Supreme Court does not have to be pulled in! This is already Chief Justice Roberts’ Court, and as the person of authority he has the full power and authority to conduct the trial by his standards as a court of law, and there’s nothing anyone can do to stop him, that’s what it means to preside.

    You geniuses think presiding is only a ceremonial designation, like you have done to the President of the Senate. Maybe you should look the words President and preside up in the dictionary, they mean the Person of authority. If you think that is wrong, then the next time you are in court just try to tell the judge to sit quietly and let you control the proceeding, and you will find yourself in jail faster then you blink your eyes.

    Words have meaning, maybe we should start remembering that!

    1. “It’s Mitchell That Matters!”

      If we want “highly intelligent,” we’ll take a run down to the Theoretical Physics Dept. The American Founders expunged the dictatorship of the British monarchy and distributed its power to the representatives of the People. The power of the British King went to various elected officials in America. Mitch McConnell is the “King” with reference to the impeachment trial. The Senate, therefore its leader, Mitchell McConnell, after concurrence among 100 Senators, has the “sole Power to try all impeachments.” No other entity in the United States government has even a scintilla of power to effect an impeachment trial, understanding that the Chief Justice shall preside. Sen. Chris Coons aside, whatever, I say again, whatever Mitchell wants, Mitchell gets.
      ______________________________________________________________________________

      Article 1, Section 3

      The Senate shall have the sole Power to try all Impeachments. 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.

  4. Jonathan: Trump has selected his crack team of lawyers to, recruited from Fox news, to represent him in the Senate impeachment trial: Alan Dershowitz, Ken Starr, Pam Bondi, et, al, You must be disappointed since you put a lot of effort into defending Trump in the House impeachment inquiry. But it wasn’t in the cards. For Trump it’s all about “optics” so he wanted loyal acolytes to handle the trial. Some on Trump’s team have their own scandals to worry about. Alan Dershowitz is accused of having sex with an underage girl supplied by the serial pedophile Jeffrey Epstein. And then there is Pam Bondi who has declared the impeachment a “charade” and “sham”. She has a lot of selfies taken with Lev Parnas.Those were in better times when Parnas was part of Trump’s conspiracy to dig up dirt on the Bidens. Now that Parnas is spilling his guts to the House and over the media Trump claims he doesn’t know Parnas, a former Ukrainian mobster. Hard to make this false assertion when there are videos and photos of the two together. A photo is worth a thousand words! But Trump thinks his cult like followers will swallow any lie. Returning to Pam Bondi she has her own baggage going into the trial. She is accused of backing out of an effort to prosecute Trump University for fraud when she was serving as Florida’s AG back in 2013. Afterward, Bondi received a $25,000 donation to her re-election campaign from Donald Trump. Donald doesn’t throw around that kind of money so he must have been pleased with Bondi’s efforts on his behalf. I agree with you that witnesses must be called to testify–especially all the administration officials who participated in Trump’s scheme to dig up dirt on the Bidens. Hunter Biden was not part of that conspiracy so his testimony would be irrelevant. But you and I know that Trump won’t willingly allow anyone to testify. His lawyers will go to court and tie up the process for months. Neither Mitch McConnell nor any Republican Senator relishes the prospect of long messy trial. They want a quick trial in which Trump is “exonerated” and can use this as a badge of honor going into this year’s re-election campaign. So who, if anyone will testify. Your guess is as good as mine. Say tuned!

    1. Dennis McIntyre — Too bad you can’t follow your own train of thought without a few partisan digs and leftist talking point that have been debunked. Biden’s dirty, we have the video proof. Ukraine is dirty, we have court filing after court filing. Zelensky ran on an anti-corruption platform, but maybe you just forgotten. Sad.

  5. Well, I think this is the 1st time Mr “subpoena the witnesses” has written in favor of the Senate hearing them, though He is whispering that opinion. To read his writing, it is proper for the Houses to operate based on the party interests of their majority and not by their constitutional duty to consider the facts in a serious allegation – JT admits it is that at least. No point getting into his allegations of House impropriety with a guy who acknowledges none by the stonewalling WH and who seems to think time is mentioned in the constitution on impeachment. How about dropping the drivel on precedent on an event which has happened twice previously and consider the precedent set by allowing a president to use the power of his office illegally to extort a foreign government into helping his campaign for reelection. One mightiest that the WH in its response today on the House charges, does not dispute the facts, but says it was legal. Well see what JT and the GOP thinks when President AOC seeks Iranian help in her 2032 race against Eric.

    1. The words of a die hard not well entrenched RINO who does not wish to be sent to his true home in th er right wing of the very far left.

      This is what tripped him up.

      ‘To read his writing, it is proper for the Houses to operate based on the party interests of their majority and not by their constitutional duty to consider the facts in a serious allegation’

      Good Catch!

  6. They have other options than pushing it into litigation.

    On the issue of witnesses they could court subpoena Pelosi as they number one complainant along with Schiff and his comrades regardless of their position as managers which is after all only a senate system rule. That could easily lead to,among other things to calling witnesses like Abedin and Clinton using the connecting conflict fruit of the unpoisoned tree rule and from their to charges filed against Pelosi and company as well.

    The second route is to ask the chief manager to explain how the charges can be proven in light of the oath of office rules ‘ability’ clause and then rule on that leaving the path open if it isn’t taken outright by the attorneys for the whole thing to be thrown out.

    I like a combination of both with the impeachment conviction phase put on hold while the charges by THE Supreme Supreme Court Justices charges are weaving their way through the system of courts back to,…The entire SCOTUS’s

    No congressional immunity Benita P. when the Chief Justice calls not for your impeachment but for your probable conviction.

    1. It wouldn’t be an impeachment as that would be Unconstitutional since Representatives can’t be impeached. But they can be charged by an equal authority. The only escape is SF continues to vote Pelosi into office and her party never becomes the minority as the majority them can vote to ACP her out of Congress and it would take a new vote to bring her back. By then arrest and trial would fill in the blanks.

      What charge? Knowingly seating an unqualified Representative – those who refused to take the required Oath of Office. Or those who openly stated they didn’t follow the Constitution.

      that would produce a great side benefit going back to the start point of trying to control a federal judge The federal judge of highest and last resort.

      Ain’t nice to play the fool with forces you can’t control.Mother Nature and Chief Justices are two of them.

  7. Sounds like this one could take awhile. Agreed on the cluster f#*k potential. And what bothers me with the House inquiry more than not waiting for the courts to weigh in on Bolton testimony, etc is their not using what they already had with the Mueller report in terms of followup on obstruction possibilities cited. Or the unindicted co-conspirator reality of the Stormy Daniels campaign finance violation. Volume 1 of the Mueller report basically detailed the workings of a president completely co-opted by the Russians…, the House could ve even taken it into treason territory. But I get the House’s dilemma — completely new territory in the level of resistance from an administration. Not saying obstruction isn’t standard fare in all administrations, it’s just that Trump has taken it to a new level.

  8. As the Presiding Judge, wouldn’t it be within the power of John Roberts to instantly rule on any legal question that comes up during the trial (without it establishing precedence)? Wouldn’t Roberts much prefer to dispatch an impasse this way than to allow the matter to spill out into litigation? As Chief Justice, I believe Roberts could even forbid the Federal Courts from accepting any petition arising from the parties to the Impeachment. That said, JT would have a better notion of whether Roberts holds the same power over the Senate Trial as any presiding judge in a common criminal or civil matter.

    1. Probably not the latter as it takes the whole cour of nine participating unlike the circuit court rogue judges who for whatever perverted reason can issue a ruling solo to the entire nation

  9. Sorry, I still don’t understand why hearing from Bolton is important. What’s the worst thing he could say? “Yes! We discussed a QpP. We ta;led about it for a two months.”

    So What? They didn’t do it and the aid was released before the deadline. Where’s the crime?

  10. The Supreme Court has no basis to tell the Senate what evidence it can and can not hear in an impeachment trial. If Trump wants to block people from testifying, then the proper remedy is that Senate can take that into consideration when voting to convict or not. The solution to this impasse is already built into the process and the Supreme Court should leave it alone.

    Trump can risk obstructing Congress while being tried for obstruction of Congress and see what happens. This is the one scenario where Trump could actually get convicted.

  11. It is not the “role” or the “right” of the Court to override a Senate conviction of any impeachment article i.e. charge. Nuff said.

    1. Maddog – the court could not override a decision by the Senate on impeachment, but it could rule it unConstitutional on its face.

  12. Guiliani made a good case for the SC overturning impeachment. Justice Marshall decided that the SC had the right to rule on federal legislation, that is not in the Constitution. Abortion is not in the Constitution.

    1. The last SCOTUS precedent on impeachment law was Nixon v. US, 1973, when the Court that the courts could not dictate the terms of impeachment to the Senate, as Senate procedures were not “justiciable”.

      1. Pardon, that was Nixon vs. US 1993, when convicted Federal judge Walter Nixon sued the Senate, stating that their referring his articles of impeachment (he’d beed convicted of a felony, was serving time in prison, while still collecting pay as a Federal judge – so the House impeached him) to a subcommittee, which returned a recommendation he be found guilty – on which the Senate voted “yes”) was illegal, and that Judge Nixon was entitled to a Senate trial. The Supreme Court found they had no Constitutional authority to compel the Senate to try an impeachment – that the question was not “justiciable”.

      2. The CJ would rule on all evidentiary issues including the President’s claim of executive privilege subject to a Senate override based on a simple majority.This is the extent of judicial oversight of the process of impeachment.It would make little sense to open it up to the full panoply of judicial review.In my view, the Founders could not have been clearer.

    2. What a shock. I’m sure Trump never even thought of that when he appointed Justice “I love beer!” What a travesty. The debasement of everyone of our institutions will be complete.

      1. Too bad nothing to back that up except personal opinion no matter how hard the spin effort. that followed. To quote Tom Clancy Spin is just another word for deceit. Debasing the institutions of the keft is far from complete but very much needed.

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