President Trump’s tweet a few weeks ago—indicating that he “would first head to the U.S. Supreme Court” if the “partisan Dems ever tried to Impeach,” because “[n]ot only are there no ‘High Crimes and Misdemeanors,’ there are no Crimes by [him] at all”—has generated substantial criticism to the effect that the president does not understand how the Constitution and the Supreme Court operate. For example, eminent Harvard Law constitutional authority Laurence Tribe reportedly called the president’s suggestion “idiocy,” and a news headline in the LA Times screamed: “Trump said he’d go the Supreme Court over impeachment—but that’s not how it works.” Critics assert, in particular, that the president seems oblivious to a 1993 Supreme Court ruling, Nixon v. United States, in which the Court, in a majority opinion written by then-Chief Justice William Rehnquist, said that a claim by federal Judge Walter Nixon that the impeachment proceedings against him in the Senate violated Article I of the Constitution was not “justiciable” because the dispute over the meaning of Article I’s impeachment provisions was the kind of “political question” that the federal judiciary is not allowed to decide.
It turns out that the critics of President Trump’s tweets are right—he could not run to the Supreme Court to have the justices block an impeachment against him—but that the matter (including the Nixon v. United States case) is a bit more complicated than might appear at first blush.
Let’s start with a simple part: to the extent that the president was asserting that he could seek review of any impeachment proceedings directly in the Supreme Court before any lower court had looked at the matter, his assertion would run smack dab into the most venerable of Supreme Court rulings, the 1803 case of Marbury v. Madison. Marbury is best known for its invocation and defense of the institution of judicial review—the notion that courts are bound to follow the Constitution even if that means refusing to apply or enforce enactments by Congress and the President. But Marbury also established that the Supreme Court’s so-called “original jurisdiction”—that is, its power to hear a dispute in the first instance before any lower court has been presented the case—is very narrowly limited to matters in which foreign dignitaries or US states are parties. Indeed, it was Congress’s attempt, in the Judiciary Act of 1789, to expand the original jurisdiction of the Supreme Court beyond these kinds of matters that led the Court to use judicial review to, in effect, invalidate Congress’s statute.
Now let’s turn to the more general question of whether any federal court—including the Supreme Court exercising appellate, rather than original, jurisdiction—can ever rule on the propriety of ongoing or concluded impeachment proceedings. In the 1993 Nixon case, Judge Nixon was a US District Judge in Mississippi who had been criminally convicted of making false statements before a federal grand jury and sentenced to prison. Because, even after his conviction and criminal sentence, he continued to hold office as a federal judge, the House of Representatives adopted articles of impeachment against him and presented them to the Senate. In turn, the Senate, pursuant to its own impeachment rules (specifically, Senate Impeachment Rule XI), appointed a Senate committee to receive testimony and other evidence and to report to the whole Senate. After the committee had done its work and presented the full Senate with a report and transcript, the entire Senate cast their ballots, with more than two-thirds (the constitutional requirement for conviction) voting to convict Judge Nixon and remove him from judicial office. Thereafter, Nixon filed suit in federal district court, arguing that Senate Rule XI violated the Constitution inasmuch as Article I of the Constitution gives to the entire Senate, and not just a committee, the authority to “try” all impeachment cases. In other words, argued Nixon, because the entire Senate had not participated in the evidentiary hearings, the Senate had not conducted the trial that the impeachment provisions of the Constitution contemplate. After he lost in the lower courts, he sought review in the Supreme Court.
In rejecting Nixon’s challenge, the Court did say this: “Before we reach the merits of [Nixon’s] claim [that the Senate’s actions violate the Impeachment Trial Clause of Article I], we must decide whether it is ‘justiciable,’ that is, whether it is a claim that may be resolved by the [federal] courts. We conclude that it is not.” The Court then went on to discuss the parameters of the so-called political question doctrine—judicial rules that seek to identify disputes that do not belong in the federal courts—and the nature and history of the impeachment provisions of Article I. In this connection, the Court observed that the “parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment power.”
The Court also remarked that “judicial review would be inconsistent with [the Framers’] insistence that our system be one of checks and balances. . . . Judicial involvement in impeachment proceedings, even if only for the purposes of judicial review, . . .would eviscerate the ‘important political check’ placed on the Judiciary by the Framers. . . . Nixon’s argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.”
In addition, the Court was “persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability. . . . The lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and thus his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial [the Senate might hold] if its first judgment of conviction were invalidated.”
All of these passages from the Court’s discussion of founding history and political theory are tough hurdles for someone like President Trump to clear to obtain judicial relief.. It does bear noting, however, that the Court’s concern about undermining “checks and balances” might be more pronounced when a court is being asked to overturn an impeachment conviction of a judge as compared to an executive branch official; in the former setting, a court would be interfering with Congress’s check on the judiciary itself, whereas in the latter, a court might be seen as arbitrating a dispute between Congress and the Executive in which the judiciary has no selfish stake. Moreover, the concerns about fashioning proper relief mentioned in Nixon might play out differently—even though they would still be important—if a president tried to invoke judicial review during the pendency, rather than after the conclusion, of impeachment proceedings in the House and Senate. On the one hand, the president might run into ripeness concerns (if a court thought the president might win in the House or Senate and thus doesn’t need judicial relief), but, on the other hand, blocking an impeachment arguably raises different finality considerations than undoing one.
Notwithstanding these possible distinctions, the sweeping language in Nixon, characterizing impeachment disputes as “[non]justiciable” in the federal courts, has led many casual observers to conclude that the case stands for the idea that judicial review of impeachment is simply never available.
But—and here’s the complication—the Nixon Court didn’t completely live up to its own rhetoric about staying out of the merits of impeachment proceedings. While the Court said it had no power to look at the legality of Senate Rule XI, the Court then went on to say that Rule XI is completely consistent with what the word “try” in Article I of the Constitution means: “The word ‘try,’ both in 1787 and later, has considerably broader meanings than those to which [Mr. Nixon] would limit it. . . [W]e cannot say that the Framers used the word ‘try’ as an implied limitation on the method by which the Senate might proceed in trying impeachments.” That language is not the Court staying out; it is the Court stepping in and deciding that the Senate has not violated the (Court’s understanding of the) text of the Constitution. Saying the Senate has not violated the Constitution is not the same thing as saying the Court has no power to decide whether the Senate has violated the Constitution. The first is a ruling on the merits; only the latter is a true, pure invocation of political question doctrine.
The point was illustrated by a hypothetical posed by Justice Souter in an opinion concurring in the judgment in Nixon. He mused: “If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply a ‘bad guy,’ . . . judicial interference might well be appropriate.”
Justice Souter’s approach (and that of other justices who concurred in the judgment) is not one in which the Court steadfastly stays out; it is one in which the Court leans in, but presumably gives a great deal of latitude to the Senate (and presumably the House too) on what it is constitutionally permissible. Under this view, perhaps we should not think of political question doctrine in the impeachment setting as a yes-no determination of whether federal courts can review, but instead think of it more in terms of how much deference the Court will afford the political branches even if the Court does not stay out of the matter entirely. And even though Chief Justice Rehnquist’s majority opinion does not explicitly embrace Justice Souter’s approach—and instead purports to adopt a bright-line rule of no judicial review—the fact that the majority does opine on the meaning of the word “try,” and how the Senate’s definition of that word is a permissible one, suggests more agreement with Justice Souter than the majority is willing to acknowledge.
Now the key question: Does this nuance matter in the context of President Trump’s protests? Probably not. Whatever one thinks of the Mueller Report and the evidence it canvasses, any House and Senate impeachment proceedings against President Trump would not be akin to going after someone because he is, generically, a “bad guy,” or akin to flipping a coin to decide whether a president gets to stay in office. As broad as the word “try” is, the term “high crimes and misdemeanors” is, as a textual and historical matter, much broader still. For this reason, it is extremely unlikely that the Supreme Court would ever conclude—whether during or after any impeachment proceedings against President Trump—that Congress’s application of the “high crimes and misdemeanors” standard was out of bounds. And that essential determination by members of Congress of the key term “high crimes and misdemeanors” appears to be what President Trump is worried about. His tweet is, of course, cryptic, but he seems to suggest that no fair-minded observer could believe there is evidence of his having committed “high crimes and misdemeanors” once that term is properly understood, and that any impeachment efforts would thus necessarily reflect impermissible political motives. As just discussed, the Court is unlikely to find that “high crimes and misdemeanors” imposes significant judicial limits on Congress. And the Court is always loath to find impermissible congressional (or presidential) intent (as we saw in last year’s so-called travel ban case.)