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Really now, WAPO editors, the Supreme Court will not be reviewing the Senate Trump trial

Max Stearns

I don't know what motivated WAPO to publish this op-ed, titled The Supreme Court can review an unfair impeachment trial. In it, author James Robenalt argues that if the Senate conducts a bogus impeachment trial, Senate minority leader, Charles E. Schumer, might resort to appealing the ruling all the way to the Supreme Court, and not only that, he might just might succeed in doing so. The reason this thesis is so remarkably novel is that, thus far not a single constitutional law professor has articulated it. And the reason not a single constitutional law professor has thus far articulated it, is that the only thing the thesis has going for it is its novelty. The thesis, espoused by this Cleveland lawyer and non-fiction author, rests on several profound misunderstandings.

The author relies upon the Nixon v. United States case, which involved the Senate impeachment trial of a federal district court judge, Walter Nixon, in 1993 (not to be confused with President Richard Nixon and a case involving him with a similar name). After Walter Nixon refused to relinquish his judgeship despite having been convicted of bribery, even collecting his salary from prison, and following his impeachment in the House, the Senate delegated fact finding to a committee. The Senate then voted as a whole body on the committee's findings and recommendations to convict. Nixon took the matter to federal court, and ultimately the Supreme Court ruled that Senate trial procedures in the impeachment context present a non-justiciable political question. This means that the federal judiciary will not second guess the proceedings because they fall within the exclusive province of the assigned political department, here the United States Senate, to resolve.

The Supreme Court offered several grounds for this ruling. First, impeachment is the sole means by which the Congress can check a wayward federal judge, and it would be problematic to interject the judiciary into that very process. Second, there are no apparent standards by which to assess the quality of a Senate trial beyond the very limited requirements set out in the impeachment clause governing itself, demanding that the members, serving as jurors, be on "Oath or Affirmation," that the Chief Justice preside in the case of a presidential impeachment, and that conviction and removal follow a two-thirds vote. Third, and most critically, the Supreme Court determined that in the event that the Court reversed the Senate trial outcome, there would be no effective means of effectuating a remedy. The Court could not reinstate Judge Nixon, once he had been removed, as doing so would require creating a new federal judgeship.

The op-ed author relies principally upon a famous concurrence in the judgment by Justice Souter. There Justice Souter made two essential points. First, he observed that the notion of a non-justiciable political question might ultimately translate into a finding that, on the merits, whatever the Senate did fell on the permissible side of what the Constitution requires. In other words, rather than reasoning that a conviction based on a committee delegation presents a non-justiciable political question, the Court might have simply asserted that as a matter of substantive constitutional law, it was permissible that the Senate managed the Nixon case as it had. Second, Souter posited a hypothetical circumstance in which, in theory, the Senate might have crossed the line of prohibition, rendering the Senate trial impermissible. Souter imagined that had the Senate convicted Nixon on a coin-toss, that procedure would have been so deficient as to justify involving the judiciary, which could then demand the rigors of a constitutionally defensible Senate trial. Souter's analysis of the political question doctrine falls well within a longstanding scholarly tradition, including the notable Professor Louis Henkin. Personally, I believe this part of Souter's analysis has has much to commend it. As a practical matter, however, Souter's observations about the coin toss and its implications for the Trump trial, are fairly obviously beside the point.

Imagine that the Senate, as virtually all predict, acquits Trump along a party-line vote, with no witnesses, based on the presentation of evidence and findings in the House. Imagine the procedures are as bad as all that, but that they do allow several days of "deliberations" in which Senators on each side give speeches about whether what Trump has done does or does not rise to the level of an impeachable offense, on the merits of withholding particular witnesses or other evidence, and on the permissibility of drawing adverse inferences from such withholdings. Imagine, further, that after the vote to acquit, Senate minority leader Charles Schumer (yes, he's too smart to do this, but imagine) marches to federal court, and even imagine that the case, as happened with Walter Nixon, gets to the Supreme Court. And now imagine that the Supreme Court associate justices, in a rare moment of unity, after praising their Chief for doing his utmost to ensure that a fair and impartial trial was duly conducted, universally observe that these efforts were entirely thwarted, at every turn, by the recalcitrant Republican Senate leadership. (If you are hearing John Lennon in the back of your head, you are not alone; I am as well.)

Even with all of that imagining, what exactly does the op-ed author envision as the remedy for a Senate acquittal of the United States President in an impeachment trial, in contrast with the Senate conviction of Federal District Court Judge Walter Nixon? Is the Supreme Court going to independently assess the missing evidence, or determine the inferences that should have been drawn from the failure to present particular witnesses or to comply with congressional subpoenas in the House? Is the Supreme Court going to so interject itself into the process that it might go so far as to order the President removed? The author is, perhaps deliberately, ambiguous, stating: "Yes, the founders provided that the House would have 'sole power' over impeachments and the Senate 'sole power' over trials of impeachment. But the Constitution also grants 'all legislative powers' to the House and Senate, and still the Supreme Court exercises routine judicial review over laws." Here the author fails to distinguish the judicial role of determining the permissible scope of legislative powers in a particular case or controversy from each chamber's exercise of delegated powers within the proper scope of that authority. And, ironically, the very case upon which the author relies precisely holds that it is fully within the scope of the Senate to determine the procedures by which an impeachment trial is conducted, provided the express constitutional conditions are met. However compelling the Court's ruling was in the context of Walter Nixon, surely it is all the more compelling in the case of an impeachment trial of a sitting, and acquitted, President.

Now perhaps the author, instead, simply envisions a remand for a second, fairer, trial. Of course no trial can force individual senators, as jurors, to change their ultimate votes. So what exactly would this accomplish? And how would forcing another trial further the objectives of the Supreme Court, the Senate, or the American people, especially since the Court is ultimately powerless to change the result? And although, the Senate trial is not a criminal trial, one can only imagine the admittedly false, but nonetheless enticing arguments that would arise, if a second trial were ordered, that the President has been subjected to double jeopardy! And all of this would take place just as we are about to have the 2020 presidential election.

Ordinarily I would not pick apart an op-ed by a non-academic author who happens to be writing in my field of expertise. I don't enjoy doing it. But there is alot of noise out there, and some of it will make people imagine that for every instance of egregious political misconduct there exists some means of redress. There is not. That's in the nature of a democracy, and it is both important and wise to recognize that sometimes the only solution to a political problem is political.

I welcome your comments.

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