Yes, Legality of the Impeachment Articles Can Be Challenged; Even The Supreme Court May Be Forced to Review Them – Expert
WASHINGTON, D.C. (January 13, 2020) – Rudy Giuliani has been ridiculed for his claim that the U.S. Supreme Court could halt the Senate impeachment trial of President Donald Trump, but there are in fact several ways in which a ruling that the articles are unconstitutional could derail the Senate trial, including one where the High Court might have to rule on this argument, says public interest law professor John Banzhaf.
A look at the impeachment articles
Banzhaf played a role in obtaining the removal from office of former president Richard Nixon, and successfully sued former vice president Spiro Agnew after his forced resignation.
Banzhaf argues that, despite precedent which strongly suggests that any such law suit would be rejected as a inappropriate case for the courts to dragged into and therefore nonjusticiable, there are at least two alternative ways Giuliani's arguments of unconstitutionality can be brought, and possibly used to prevent any trial in the Senate, claims Banzhaf.
One way this objective might be accomplished would be if a motion to dismiss the articles of impeachment were properly made, at the beginning of the proceedings, to Chief Justice John Roberts who will be presiding.
This first scenario could derail any proposed trial in the Senate if Roberts agreed that the articles as challenged are unconstitutional because they do not even reference a single crime, the House's procedures allegedly violated Due Process and/or were otherwise unconstitutionally unfair, the evidence is too "wafer thin" (as Professor Jonathan Turley testified) to provide probable cause, etc. - all as some legal scholars have concluded.
As Alexander Hamilton - who had a major role in drafting the Constitution - wrote in Federalist No. 78: "There is no position which depends on CLEARER PRINCIPLES, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, IS VOID. No legislative act, therefore, contrary to the Constitution, can BE VALID." [emphasis added]
So, since a Senate trial arguably cannot proceed based upon a document which is void and not valid, an argument can be made to Roberts that the proceeding must be adjourned as void ab initio ["to be treated as invalid from the outset"] without any trial.
Another possible scenario could occur if the Chief Justice rejected just such a motion, but his ruling was then appealed to the Senate itself, where the senators voted against his ruling and to therefore grant the motion. Either of these two scenarios is at plausible.
How the law works with impeachment articles
Putting aside the legal strengths and weaknesses of such an argument, it might be adopted because it would produce a result which might greatly please both the President and most Republican senators, since Trump could claim complete vindication and then harangue the Democrats for trying to use an unconstitutional tactic to remove him from office; the Democrats would avoid losing a trial in the Senate which could otherwise be seen as vindicating the President; and both would avoid a trial which might prove embarrassing and time consuming.
A prompt dismissal could be especially valuable for senators campaigning for president. It might also provide an easy way to deflect Trump's demand for a lengthy trial with many witnesses.
A final scenario in which the legality of the impeachment process could be decided might occur if the Senate does somehow vote to convict the President and purports to remove him from office.
Though unlikely, some scholars and pundits have suggested that it could happen if just a few Republican senators (including those not running again, those who will not run again for many years, those from states where most voters want Trump out of office, etc.) joined with Democrats and insisted that the crucial votes be taken by secret ballot - a procedure which actually has some precedent.
Impeachment articles: Trump vs Nixon
If Trump then claims that the removal process was illegal because the articles of impeachment were unconstitutional - because, e.g., they did not mention or relate to a "crime" as the Constitutional arguably requires; the House proceedings violated the President's rights to Due Process or fundamental fairness; that the evidence was legally insufficient to support the articles, much less a conviction, etc. - and therefore declares that he will refuse to leave office, it would create a true constitutional crisis.
In such a situation, there have been hints that the Supreme Court might be willing to take the case and order the president removed.
For example, when federal judge Walter Nixon challenged his removal from office by impeachment, the High Court ruled against him on the facts of his specific situation, but three justices wrote that, if there were to be a clearly unfair impeachment trial in the future, the courts might be obligated to rule on a case brought by the aggrieved party.
What the Senate will do
For example, Justice White wrote that while it was "extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges," the scenario was hardly unimaginable - and would provide grounds for judicial review.
"Were the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House it is quite clear that the Senate will have failed to 'try' impeachments," White wrote.
Justice Souter opined that if the Senate voted to remove someone from office based "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.
"In such circumstances, the Senate's action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence," he wrote, rejecting the argument that there could be review at all of the impeachment process.
Since so many aspects of this entire impeachment process, like so much of Trump's presidency, has proven to be so unusual and unprecedented - e.g., the House's refused to promptly deliver the articles of impeachment to the Senate - it might be important to consider any plausible - even thought somewhat unlikely - scenario which might just otherwise surprise us and occur, suggests Banzhaf.