Dershowitz: "The Supreme Court just pulled the rug out of part two of the impeachment referral"

Dershowitz: “The Supreme Court just pulled the rug out of part two of the impeachment referral”


Famed attorney and Fox News contributor announced on Hannity Friday night that he believes the Supreme Court just put the nail in the coffin for “Count Two” of the impeachment inquiry on Friday.

If so, this would be a hilarious development.

The Democrats could only come up with two (bogus) counts in the first place, and now they might have already lost one?

Watch what he said here:

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Our friends over at The Blaze explained more:

Alan Dershowitz believes one of the "most important" developments in the impeachment proceedings against President Donald Trump happened Friday.

Speaking with Fox News host Sean Hannity on Friday, the Harvard law professor explained the Supreme Court — by agreeing to hear a trio of cases involving subpoenas for the president's financial records — just "pulled the rug out of part two of impeachment."

"Look, the most important development happened today," Dershowitz said. "The Supreme Court of the United States absolutely pulled the rug out of part two of the impeachment referral by granting certiorari, by granting review in a case where Trump challenged a congressional subpoena. And the Supreme Court said we're going to hear this case."

"Think of what that message is: It's Trump was right," he continued. "You don't have to comply with a subpoena of Congress unless a court tells you you have to comply."

"Now, we don't know how the court is going to come out. But they made it clear that's a viable issue," Dershowitz went on to say. "So, that charge, that ground of impeachment, should be immediately removed by the House and not sent to the Senate. There's nothing to it anymore after the Supreme Court today said you're entitled to a review on an issue when the president challenges the subpoena power of Congress."

"It's all done. It's over," Dershowitz said.

The Supreme Court will hear arguments for the cases in March, and will likely issue their opinion in June 2020. 

The case has significant implications for presidential immunity — in this case, whether a sitting president can resist subpoenas for their financial records — and as Dershowitz explained, the current impeachment proceedings.

Indeed, impeachment article two, which centers on Trump's alleged obstruction of Congress, charges that Trump has "directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives."

If the Supreme Court finds that Trump has sufficient authority to resist certain congressional subpoenas, the implications related to impeachment are obviously significant.

This isn't the first time Dershowitz has discussed the Supreme Court in connection with impeachment.

He was on this topic back in May.

Check out what he wrote back then on The Hill:

President Trump has said that if the House were to impeach him despite his not having committed “high crimes and misdemeanors,” he might seek review of such an unconstitutional action in the Supreme Court. On April 24, he tweeted that if “the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court. Not only are there no 'High Crimes and Misdemeanors,' there are no Crimes by me at all.”

Yesterday, when asked by a reporter if he thinks Congress will impeach him, the president responded, “I don’t see how. They can because they’re possibly allowed, although I can’t imagine the courts allowing it.”

Commentators have accused Trump of not understanding the way impeachment works and have stated quite categorically that the courts have no constitutional role to play in what is solely a congressional and political process. Time magazine declared in a headline “That’s Not How It Works,” and Vox called the president’s argument “profoundly confused.”

Scholars also echoed the derision. The influential legal blog Lawfare wrote confidently that “The Supreme Court Has No Role in Impeachment,” and my friend and colleague Larry Tribe, an eminent constitutional law scholar, called Trump’s argument simply “idiocy,” explaining that “the court is very good at slapping down attempts to drag things out by bringing it into a dispute where it has no jurisdiction.”

Not so fast. Our nonlawyer president may be closer to the truth than his lawyer critics. In fact, the Lawfare blog noted that “Trump’s suggestion of resorting to the Supreme Court to appeal an impeachment did not come out of nowhere. ... Alan Dershowitz recently made an argument along the same lines, writing in an essay on ‘The Case Against Impeaching Trump’ that ‘[w]ere a president to announce that he refused to accept the actions of the Senate in voting for his removal … and that he would not leave office unless the Supreme Court affirmed his removal, the people might well agree with him.’”  

However, my argument did not come from nowhere, either.  

Two former, well-respected justices of the Supreme Court first suggested that the judiciary may indeed have a role in reining in Congress were it to exceed its constitutional authority. Justice Byron White, a John F. Kennedy appointee, put it this way: “Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibility because the Senate has precipitated a crisis.”

Justice David Souter, a George H. W. Bush appointee, echoed his predecessor: “If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.”

It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.  

Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.  

Recall that when a president has been impeached by the House, the Supreme Court’s chief justice presides at his Senate trial and the senators take a special oath. This special oath requires each senator to swear or affirm that “in all things pertaining to the trial … [to] do impartial justice according to the Constitution and the law” (italics added).

If the House were to impeach for a noncrime, the president’s lawyer could make a motion to the chief justice to dismiss the case, just as a lawyer for an ordinary defendant can make a motion to dismiss an indictment that did not charge a crime. The chief justice would be asked to enforce the senatorial oath by dismissing an impeachment that violated the words of the Constitution. There is no assurance that the chief justice would rule on such a motion, but it is certainly possible.  

No one should criticize President Trump for raising the possibility of Supreme Court review, especially following Bush v. Gore, the case that ended the 2000 election. Many of the same academics ridiculed the notion that the justices would enter the political thicket of vote-counting. But they did and, in the process, weakened the “political question” doctrine. The case for applying the explicit constitutional criteria governing impeachment is far more compelling than was the case for stopping the Florida recount.


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