On Wednesday, law professors Joshua Matz and Laurence Tribe explained, in an excerpt from their upcoming book, why President Donald Trump’s new threat to lean on the Supreme Court to block potential impeachment proceedings is completely meritless — and why the system was set up explicitly so that a president cannot do that.
“Convinced that the House would uncontrollably boil over with irrational fury, the Framers generally agreed that it couldn’t have the final say on ending presidencies,” wrote Matz and Tribe, and so they needed to create a trial system to rule on the impeachment. They did consider using the federal judiciary, Matz and Tribe noted, and several other countries do use their judicial branch to try impeachments, including Burkina Faso, Cape Verde, Djibouti, France, Mali, South Korea, and Venezuela — as well as three U.S. states for impeachment proceedings against their governors.
But ultimately, they said, “a majority of the Framers … voted against relying on the judiciary” and instead chose to hold impeachment trials in the Senate. And, they note, there are four main reasons they did this.
First, the federal courts could be filled by the president’s own appointees, whereas a Senate trial would have no such conflict of interest. Second, if a president was convicted and removed, then indicted criminally for the impeachable conduct, the same court might try the president twice. Third, because the Supreme Court is smaller than the Senate, it would potentially be easier to corrupt or buy off a majority of justices than senators. And fourth, the founders were still shaky on the idea of the Supreme Court as a co-equal branch of government and feared it might not develop the legitimacy to manage such a proceeding.
“With the Supreme Court disqualified, this left only one viable option in the federal government: the Senate,” concluded Matz and Tribe. And unfortunately for Trump, he cannot undo this clearly codified legislative check over the presidency.