The Corner

Law & the Courts

Dershowitz on the Supreme Court and Impeachment

Attorney and law professor Alan Dershowitz at his home in Miami Beach, Fla., January 5, 2015. (Andrew Innerarity/Reuters)

President Trump has said that he would appeal to the Supreme Court if Democrats ever tried to impeach him. Former Harvard Law professor Alan Dershowitz claims that while many people have criticized Trump’s remark as constitutionally ignorant, the president has a point: “[I]t is certainly possible” that the Supreme Court would move to stop an impeachment trial in the Senate.

Dershowitz cites a case arising from the Nixon impeachment — the impeachment, that is, of Judge Walter Nixon. He quotes then-justice David Souter: “If the Senate were to act in a manner seriously threatening the integrity of its results . . .  judicial interference might well be appropriate.” The ellipses are from Dershowitz. Here’s what it conceals: “convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply a bad guy.

Dershowitz’s argument is one of many, on all sides of the impeachment question, that ignores a crucial constitutional fact about impeachment. It can’t succeed without an extremely strong political consensus.

If the Senate is not close to having the two-thirds supermajority to remove the president from office in an impeachment trial, the justices would steer clear of taking up a moot issue. If there are enough votes for removal, or close to enough, it would almost certainly mean that the vast majority of Americans want the president removed, including a significant fraction of his own party. The matter of the impeachment wouldn’t be anything that most people consider frivolous. And so the Supreme Court wouldn’t intervene there either.

The Constitution includes no explicit judicial safeguard against a wrongful impeachment, and doesn’t need any. The procedural protection it explicitly includes — the need for a House majority and Senate supermajority — is more than enough. The Supreme Court is exceedingly unlikely to save Trump from an impeachment, but he is also unlikely to need it to.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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