As House Democrats prepare to transmit the articles of impeachment to the Senate, President Donald Trump has a new argument for why impeachment “should not even be allowed to proceed”: that it is unconstitutional.
This makes little sense given the process’s prominent place in the Constitution itself — it’s spelled out in Article II Section 4 — and also given the Supreme Court has already said impeachment is constitutional, and that it has no dominion over the process.
But it is the argument being made by the president’s personal lawyer, Rudy Giuliani. On Twitter Sunday, Trump called a Giuliani plan to have the Supreme Court rule on impeachment’s constitutionality a “Great idea.”
Giuliani says impeachment is a criminal procedure. The framers thought differently.
The lawyer outlined his case on Fox News’ Justice with Judge Jeanine Saturday, building on a Daily Caller column he wrote last Thursday.
Great idea. This phony Impeachment Hoax should not even be allowed to proceed. Did NOTHING wrong. Just a partisan vote. Zero Republicans. Never happened before! https://t.co/47oV6z4RQc— Donald J. Trump (@realDonaldTrump) January 12, 2020
Essentially, Giuliani argues the Supreme Court ought to get involved to provide a check on the legislative branch’s power, and because the articles of impeachment don’t charge Trump with any federal crimes.
“The general theory is of course that impeachment is in the hands of the House, with unlimited power. Wrong,” Giuliani told host Jeanine Pirro. “What are the limits of impeachment. It’s written right in Article II Section 4. It has to be treason, bribery, high crimes, misdemeanor.
“Abuse of power, and the other ridiculous obstruction of Congress — you can’t find it anywhere in 18 USC, you can’t find it under common law, you can’t find it in Lithuanian law,” he continued. “It doesn’t exist as crimes. So they have rendered the Constitution of the United States, and its words, meaningless.”
While Article II Section 4 does list the impeachable offenses as “treason, bribery, or other high crimes and misdemeanors,” it offers no clear-cut definition of the last category — and, crucially for Giuliani’s argument, does not specify that they have to be high crimes or misdemeanors as outlined in federal criminal law. Moreover, federal criminal law didn’t really exist when the Constitution was created.
Historically, the House, which the Constitution gives “the sole power of impeachment,” has interpreted that last category in a number of ways. Bill Clinton, for instance, was impeached for the high crimes and misdemeanors of perjury and obstruction of justice. Richard Nixon resigned before a vote on impeachment could be held, but the House Judiciary Committee overseeing his impeachment process approved articles that included both abuse of power and contempt of Congress. The full House was expected to impeach him.
Most recently, the 116th House impeached Trump for abuse of power and obstructing Congress — and explained why it felt each was an impeachable offense.
Abuse of power, for instance, House Democrats defined as “engaging in forbidden acts, or by engaging in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit).”
Trump did just this, according to the first article of impeachment, which argues Trump “persisted in openly and corruptly urging and soliciting Ukraine to undertake investigations for his personal political benefit.”
As far as obstructing Congress is concerned, House Democrats found Trump “directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its ‘sole Power of Impeachment.’”
As Giuliani noted, these offenses aren’t covered by federal criminal law. But impeachment is not a criminal process, it is a political process, begun and handled by politicians, with the judicial system only assisting with the oversight of Senate trials.
Legal experts — including the experts brought before the House to explain the process — have made it clear the impeachment process is political by design. As Peter Margulies, a law professor at Roger Williams University School of Law, told Vox’s Sean Illing:
In Federalist No. 66, Alexander Hamilton envisioned impeachment as a political process run by Congress. That means Congress can impeach a president even if the executive actions at issue are not literally crimes but are abuses of power, as in the presidential phone call that triggered the Ukraine impeachment inquiry.
The courts have historically steered clear of impeachment
Giuliani claimed that seeing impeachment as a political, not criminal, process — despite it being how the framers saw the issue — is problematic and in need of correction.
“The remedy,” Giuliani told Pirro, “is to go before the Supreme Court of the United States and have it declared unconstitutional.” Such a ruling, the lawyer claimed, would have the added benefit of making the House’s vote to impeach the president “null and void.”
As Vox’s Ella Nilsen has explained, the courts — including the Supreme Court — have already weighed in on the judiciary’s role in impeachments and have decided the courts ought to play no part in the process:
In past cases challenging impeachments (mostly of federal judges), the courts have upheld Congress’s right to impeach and have a trial. The US Supreme Court weighed in on this in 1993, when the House impeached and the Senate convicted Walter Nixon, the chief judge for the US District Court for the Southern District of Mississippi.
Nixon, who was impeached after he refused to leave office even after being convicted on a charge of committing perjury, decided to challenge the decision. The Nixon v. United States case went all the way up to the Supreme Court, which dismissed the suit after finding it was nonjusticiable. Then-Chief Justice William Rehnquist wrote in the majority opinion that the Supreme Court would not review the decision, because the Constitution gave the Senate the “sole” power to convict and remove a federal officer.
Furthermore, Rehnquist wrote that because impeachment is a constitutional means to check the power of members of the judicial branch, it would not be proper for the judicial branch to weigh in.
Obviously, there is a different Supreme Court now, and in recent years it is one that has signaled openness to overturning precedents on issues ranging from unions to taxes. But it isn’t clear that there is any appetite for the top court taking another look at Congress’s power to impeach, or that justices would rule differently than the court did in Rehnquist’s day. For example, Trump-appointed Justice Neil Gorsuch has spoken at length about the need to maintain the separation of powers and to follow what is on the page with respect to the Constitution.
All this makes this latest anti-impeachment push as inane as many of the president’s other defenses. And as unnecessary. Should removal votes fall along party lines in the Senate as expected, the president will not have to worry about the impeachment process proceeding any further: He will always be the third to have been impeached, but he will also become the latest to be acquitted.