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Saturday, February 15, 2020

The Trump Impeachment and Bad News for Federal Judges

The “Rules of Proceedings” Clause grants the Senate the power to frame the rules of its proceedings. And the impeachment trial clause specifies that the Senate has the "sole power to try all impeachments." "Sole" textually commits the impeachment trial power to the Senate, and "try" is a word that the Supreme Court claims, ironically enough, lacks any judicially discoverable and manageable standards. In Walter Nixon, Chief Justice Rehnquist enlisted fainthearted originalist votes to conclude there was a lack of discoverable standards to allow judicial review of Nixon's impeachment. Justices Scalia and Thomas joined the majority in consulting a 1971 Webster's dictionary to claim, due to a "variety of definitions" in conflict with ratification era dictionaries, ambiguity in the meaning of the word "try." Thus, the case was a political question unsuitable for judicial review. Of course, in the Seventh Amendment context, the Court regularly decides what a jury trial entails by looking to English common law at the time of ratification.

Walter Nixon's holding roped off the Senate's impeachment trial process from any judicial review. Effectively, it announced, to quote Justice Souter, "an unreviewable discretion in the Senate to ignore completely the constitutional direction to 'try' impeachment cases." Now, post Walter Nixon, we have just witnessed the Senate "trying" a case without any witnesses. That absence of witnesses (prosecution or otherwise) did not prejudice defendant Trump. Had he actually been injured rather than helped by the Senate majority, Trump might have attempted judicial review only to be confronted with Walter Nixon.

But Walter Nixon together with the new "Trump v. House Managers" no-witness precedent are swords that can cut offensively as well as defensively. One potential proposition from Trump that could serve as precedent is that the Senate need not allow any witnesses at any impeachment trial. What if a future accused wants defense witnesses yet the Senate majority finds no constitutional duty to hear from them in order to "try" an accused and instead it elects to convict on the basis of a "coin toss" or its view the accused is a really "bad guy," to invoke Souter's hypotheticals? And what if the impeachment target is not a President with comparatively greater legal resources and political allies, but a judge?

Consider that judicial impeachments are lower visibility events than presidential impeachments with less fanfare; politically, federal judges have a different relationship with senators than a President, as head of a party, enjoys; the resolution of judicial impeachments is relatively fast, entailing less opportunity cost for Congress, especially with subdelegation of evidence gathering functions under Senate Impeachment Rule XI; and judges are impeachable for whatever constitutes not "good behavior," which might be conceived as a more specific and higher Article III standard for appropriate judicial behavior—not simply a shorthand cross-reference to the very bad behavior embodied in Article II grounds as "treason, bribery and other high crimes and misdemeanors."

But isn't the 2/3 supermajority vote to convict a safeguard against a no-defense-witness impeachment trial? Institutionally, individual judicial targets have significantly fewer legal resources at the ready for their defense than incumbent Presidents. It's no wonder that threats of impeachment against federal judges frequently precipitate resignations in impeachment's shadow; impeachment's in terrorem effect reaches many more federal judges than those formally impeached and convicted.

Of course, we could try and "read" the Trump nonjudicial precedent more limitedly, i.e. the Senate can deny the House prosecution, but not a defendant, all witnesses. It's unclear, though, why that would be the case where the Senate holds the judicially unreviewable "sole power to try all impeachments." Told by the Court that the Senate can do what it wants when trying impeachments, we should be unsurprised when it does just that.

Posted by T. Samahon on February 15, 2020 at 01:22 PM in Constitutional thoughts, Law and Politics | Permalink


"To be clear, impeachments are *now* court proceedings and not political processes?"

Impeachments are political.

The concern is when the Senate tries those impeachments, a form of trial, that certain basic things should be involved including documents/witnesses, particularly if the defense deems it necessary.

One need not be a "leftie" to think this.

Posted by: Joe | Feb 17, 2020 1:16:46 PM

To be clear, impeachments are *now* court proceedings and not political processes?

It's so difficult to keep up with the lefties flip flopping on this.

Posted by: thegreatdisappointment | Feb 17, 2020 6:53:45 AM

Just clarification,speaking of chief justice presiding, only, I quote:

" When the President of the United States is tried, the Chief Justice shall preside "

Yet, when as stated by me, dealing with deeply rooted principles (violated) or, when one of the absolute stipulations for impeachment violated, the Supreme court, should intervene.If oath for example, not taken, Supreme court, must then intervene.

Posted by: El roam | Feb 15, 2020 4:58:19 PM

Interesting, but, it can't be that much arbitrary of course. First, the chief justice, can and should intervene ( as the one, presiding and running the show).

Second, in the case of Nixon ( the judge) the issue was rather, the full House vote, and there, the Supreme court, ruled, that it can't intervene.

Third, in the case of Trump, the issue was rather, witness and records, beyond and outside, the records of the Congress. But, the Senate rules, deal with witnesses, and allow it of course (rule 110 in relevant part:" but nothing herein shall prevent the Senate from sending for any witness and hearing his testimony in open Senate, or by order of the Senate having the entire trial in open Senate).

Finally, worth to note, that in Markman v. Westview brought here, it was stated by the court, that common law, can be derived also from such method as distinction between procedure v. substance, here I quote:

" The "substance of the common-law right" is, however, a pretty blunt instrument for drawing distinctions. We have tried to sharpen it, to be sure, by reference to the distinction between substance and procedure."

But, in that case, I quote:

" the sounder course, when available, is to classify a mongrel practice (like construing a term of art following receipt of evidence) by using the historical method, much as we do in characterizing the suits and actions within which they arise. Where there is no exact antecedent, the best hope lies in comparing the modern practice to earlier ones whose allocation to court or jury we do know, cf. Baltimore & CarolinaLine, supra,at 659, 660; Dimick v. Schiedt, 293 U. S. 474, 477, 482 (1935), seeking the best analogy we can draw between an old and the new, see Tull v. United States, supra,at 420-421 (we must search the English common law for "appropriate analogies" rather than a "precisely analogous common-law cause of action")."

P.S: if one of the absolute stipulations provided by the constitution, is violated ( like taking oath, or chief justice presiding and so forth...) then, the Supreme court can intervene. The same for deeply rooted principles, like clearly violating, one of the principles of due process.Suppose that the defendant is not allowed to be represented in the Senate, surly the Supreme court, had to intervene of course.


Posted by: El roam | Feb 15, 2020 4:37:33 PM

The Walter Nixon precedent to me warranted more attention during the impeachment trial. The defense (and some Republican senators) made an argument that the call for documents and witnesses would subject them to extended uncertainty as the matter was decided in the courts.

But, why? Doesn't that precedent close that off? Of course, realistically, a single case from the 1990s need not settle everything. The law deals with ongoing cases and controversies with new events leading to clarifications. And, the Trump team could still appeal to the courts, even if their arguments were weak. Still.

The last impeachment trial was for Judge Thomas Porteous. Some familiar names popped up -- Schiff was a manager. Jonathan Turley was there for the defense. The Judicial Conference of the United States referred the case to the House; it was not a case of someone already convicted in a criminal trial. So, it would be the sort of case where witnesses might be more of an issue for the defense.

As noted, the "no witness" (or ANY documents, which is even broader) impeachment very well might burn a judge, especially since there it would be easier to obtain bipartisan support for actual removal.

Posted by: Joe | Feb 15, 2020 3:01:27 PM

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