Editor’s Note: Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include “A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787” (Oxford University Press). The views expressed in this commentary are those of the author. View more opinion on CNN.
With five active lawsuits about President Trump’s financial records and tax returns, two involving whether senior advisers are immune from compelled witness testimony and one opposing the release of the unredacted Mueller report and other grand jury material, America’s courts are busy adjudicating disputes that could impact the 2020 presidential election. And another consequential case could be heading to court as well: whether President Trump was impeached by votes in the US House of Representatives on December 18, 2019, for abuse of power and obstruction of Congress, or whether the matter must proceed to the Senate before he has been formally impeached.
House Speaker Nancy Pelosi’s (D-CA) decision to wait to deliver the two Articles of Impeachment to the Senate until that body has laid out the rules for the trial has set the stage for such a potential landmark court action.
The decision to delay was influenced by the most famous constitutional law professor in America, Harvard’s Laurence Tribe, who had penned an op-ed two days before the House adopted the Articles that insisted waiting to transmit them is necessary because Senate Majority Leader Mitch McConnell (R-KY) “has announced his intention to conduct not a real trial but a whitewash, letting the president and his legal team call the shots.” Consequently, Tribe maintained, “under the current circumstances, such a proceeding would fail to render a meaningful verdict of acquittal.”
Professor Tribe’s Harvard Law School colleague Noah Feldman, who had testified before the Judiciary Committee as an expert witness that President Trump should be impeached and removed from office, responded to the decision to delay delivering the Articles of Impeachment with a bombshell op-ed of his own: Transmittal of the Articles to the Senate is part of the act of impeachment, he argued, and until that occurs the president has not been impeached.
As Feldman concisely put it, “Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial” so the Senate can conduct a trial.
The point-counterpoint between Tribe and Feldman about how the impeachment process is supposed to work is far more than an academic debate between two Ivy League professors. It is a debate about how the most powerful person in the world — the president of the United States — is held accountable under the Constitution’s venerated system of checks and balances.
The White House has reportedly considered arguing Feldman’s point in the court of public opinion. President Trump also could argue it in a court of law if he decides to make either or both of the following legal claims: one, the House’s refusal to transmit the Articles to the Senate is depriving the president of his constitutional right to clear his name in the Senate; and, two, the House’s attempt to leverage the Senate to adopt trial procedures that the House finds acceptable (read: trial procedures that increase the probability — low though it may be — that the president will be convicted and removed from office by the Senate) violates the separation of powers because the Constitution vests the Senate with the “sole power to try all impeachments.”
I suspect that many court watchers believe that the Supreme Court would consider any potential lawsuit that flows from Speaker Pelosi’s decision to delay delivery of the Articles of Impeachment to be a non-justiciable political question or, in other words, a case that is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not decide the dispute.
Indeed, the nation’s highest court held in 1993, in Nixon v. United States, that the question of whether the Senate had properly tried an impeachment of federal judge Walter Nixon was a political question that could not be resolved in the courts. Nixon had been convicted in a criminal court of committing perjury before a grand jury but did not resign from office even after his incarceration.
I disagree, however, that a lawsuit by President Trump about the House’s delay in transmitting the Articles of Impeachment to the Senate for trial would constitute a non-justiciable political question.
In their opinions concurring in the judgment in the Nixon case, Justices Byron White, Harry Blackmun, and David Souter wrote separately to voice their concern about foreclosing the impeachment process from judicial review. While the three Justices agreed that the Senate had done all it was constitutionally required to do during Judge Nixon’s impeachment trial — namely, appoint a committee of senators to hear the evidence against Nixon and later report to the Senate as a whole for a vote on his removal from office — they made clear that “arbitrary” impeachment processes would be subject to judicial review.
If “arbitrary” impeachment processes can be reviewed and overturned by the Supreme Court, so too can partisan impeachment processes such as that to which President Trump continues to be subjected. After all, no Republican member of the House voted to impeach the president and, despite their assertions to the contrary, both Speaker Pelosi and Professor Tribe appear to be motivated by a partisan desire to weaken President Trump during the 2020 election cycle.
Get our free weekly newsletter
As Justice Souter remarked in his separate opinion in the Nixon case, if the House or the Senate “were to act in a manner seriously threatening the integrity of its results, … say, … upon a summary determination that an officer of the United States was simply ‘a bad guy,’ … judicial interference might well be appropriate.”
In President Trump’s case it surely is.