Impeachment stands almost no chance of forcing President Trump from office, since he needs the support of only 34 senators to block removal. Yet rather than rely on this straightforward and unassailable logic, Trump has chosen instead to emphasize the convoluted and improbable case that the courts would step in and save him. “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court,” he tweeted in April. And then last week, asked if Congress might impeach him, Trump replied, “I don’t see how they can. Because they’re possibly allowed, although I can’t imagine the courts allowing it.”
Where is he getting this weird idea from? The apparent answer is Alan Dershowitz, Harvard Law School professor and habitual legal defender of the rich and obviously very guilty. Dershowitz is not completely making up the idea that the Supreme Court could block impeachment. But he is conjuring up a wildly improbable case that Trump has embraced for reasons that are difficult to fathom.
Dershowitz has laid out his reasoning in an op-ed for The Hill — which is the second-best newspaper covering Congress and not the place one would turn for cutting-edge analysis of constitutional law. The Constitution grants Congress power to conduct impeachment hearings, and the Supreme Court affirmed (in a 1993 case) that the Court has no power to override it. Dershowitz hangs his idiosyncratic view on minority opinions filed in that ruling by then-Justices David Souter and Byron White.
Souter and White agreed with the Court’s unanimous finding against a judge who had been impeached and was challenging his impeachment. But they made the case that, in certain extreme instances, the Supreme Court could overrule the Senate’s decision to remove a president. How extreme? Souter was imagining a circumstance where the Senate did not even bother with “a minimal set of procedural standards in conducting impeachment trials.” The two dissenters suggested removing a president merely on the charge of being “a bad guy,” or deciding the case through a coin flip, would not hold up.
In theory, the Supreme Court could change its mind and take up the White-Souter view that it possesses the power to overrule impeachment that failed even to pretend to judge real offenses. Courts do possess a lot of authority to settle differences between branches of government.
But the idea that the Supreme Court would do something like this for Trump is beyond absurd. Congress already has tons and tons of evidence of misconduct, so there’s no reason to think it would go with the coin flip or “he’s just a bad guy” method of impeachment. In a world where 67 senators had voted to remove Trump from office, Trump would have been proved guilty of things that convince Republicans of his unfitness for office. In that world, all five Republican-appointed justices are never going step in to save Trump by overriding a clearly constitutional process.
So Dershowitz’s weirdly fanciful scenario has absolutely no bearing on Trump’s chances to survive impeachment. Nor is it clear why the president has seized on this bizarre eventuality when he has the very solid support of the Senate Republican caucus. It’s as if Trump said he’s not worried about being eaten alive by a shark because if a shark attacked him, he’d just fight it off with his bare hands. He has arrived at the correct conclusion via some extremely bad reasoning.