Faced with increasing calls for his impeachment, President Donald Trump seems to be floating the novel legal theory that Democrats simply aren’t allowed to impeach him.
The president spoke about the possibility of impeachment with reporters outside of the White House on Thursday, offering the newest iteration of his questionable legal defense that you cannot impeach a president who is doing a great job.
“I don’t see how. They can because they’re possibly allowed — although I can’t imagine the courts allowing it,” Trump said when he asked if he believed Democrats would move to impeach him. “I’ve never gone into it — I never thought that would even be possible, to be using that word.”
Watch the video below, via ABC News:
"I don't see how. They can because they're possibly allowed … I can't imagine the courts allowing it," Trump says when asked if he will be impeached.
— ABC News Politics (@ABCPolitics) May 30, 2019
“I don’t think so,” Trump concluded on the possibility of impeachment. “Because there was no crime. You know, it’s high crimes and — not ‘with’ or ‘or’ — it’s high crimes and misdemeanors.
“There was no high crime, and there was no misdemeanor,” he added. “So how do you impeach based on that?”
From his comments, Trump’s concession that he has “never gone into” the specifics of impeachment appears to ring true. Setting aside Trump’s suggestion that a president must commit both high crimes and misdemeanors to be impeached, the idea that the courts could step in to save him from a Congress set on impeachment — a fringe theory made by some of the president’s most vocal defenders — is shaky at best.
There’s already precedent for the Supreme Court rejecting a challenge to impeachment as a nonjusticiable political question or an issue outside of the court’s judicial authority. In Nixon v. United States (No, not that Nixon), the court ruled unanimously to affirm a lower court ruling against former District Court Judge Walter Nixon’s challenge to his own impeachment.
In the majority opinion, Chief Justice William Rehnquist delves into the history of the Constitutional Convention to outline how the decision to remove the Supreme Court from the impeachment process was an intentional choice of the framers.
In his opinion, Rehnquist agreed with the lower court that “opening the door of judicial review to the procedures used by the Senate in trying impeachments would ‘expose the political life of the country to months, or perhaps years, of chaos.'”
The notion of judicial review in an impeachment case was succinctly rejected in the late constitutional scholar Charles Black’s famous book, “Impeachment: A Handbook.”
Approaching the hypothetical question of a president impeached by the House, convicted by the Senate, and reinstated to serve out his term by the Supreme Court, Black writes: “I don’t think I possess the resources of rhetoric adequate to characterizing the absurdity of that position.”