In a column for the Washington Post, attorney James Robenalt laid out the legal basis for the Supreme Court to step in and review the impeachment trial of Donald Trump if there is evidence it was not conducted properly.
With Senate Majority Leader Mitch McConnell (R-KY) already admitting that he is working hand-in-hand with the White House to undercut the impeachment trial of the president — as well as signing as a co-sponsor a dismissal bill in the Senate that would allow throw all charges against Trump to be dismissed without a trial — Robenalt explains there is precedent for the Supreme Court to intervene.
“If Senate Majority Leader Mitch McConnell follows through on his desire to hold an abbreviated impeachment trial without witnesses — as many in his party would prefer — he will be testing the limits of the impeachment trial clause of the Constitution,” he wrote before adding, “If such a sham trial comes to pass, is there any remedy? In fact, there is a stronger case than many think that the Supreme Court has the power to review impeachment trials, to ensure that Senate procedures meet a basic level of fairness.”
According to the attorney, “The only Supreme Court decision addressing the Senate impeachment trial clause is Nixon v. United States (1993) — which has nothing to do with Richard Nixon. When Walter L. Nixon, a federal judge in Mississippi, was impeached in 1989 and removed from office, he sued the United States, the secretary of state and the Administrative Office of the U.S. Courts, arguing that the Senate had not conducted a proper ‘trial’ as required by the Constitution.”
“The court, with Chief Justice William Rehnquist writing for the majority, ruled against him,” he elaborated. ” t concluded that how the Senate conducted impeachment trials was essentially a political question, because the Constitution gives that body the “sole power” to try impeached officials. That meant the dispute was, in the legal jargon, ‘nonjusticiable.’ But other justices — namely Byron White, Harry Blackmun and David Souter — argued that, while Nixon deserved to lose, it was possible that one day the Senate would conduct such an unfair impeachment trial that the courts would be obliged to hear a case if an aggrieved party sought a judicial remedy. That’s precisely the situation we may face today.”
“As the court noted in Nixon, the Constitution lays out several indispensable elements of an impeachment trial: The Senate ‘shall be on Oath or Affirmation’; if it’s the president who’s on trial, ‘the Chief Justice shall preside’; and conviction requires a two-thirds majority of the members present. Beyond this, the terms of how the Senate tries an impeachment are left to its discretion,” he continued.
According to the attorney, McConnell’s public pronouncements that he plans to obstruct justice and absolve the president before he has even been handed the articles of impeachment opens the door for judicial review.
“McConnell has said he does not intend to be impartial — and in fact will work, lockstep, with the White House during the trial. That would violate his oath to ‘do impartial justice according to the Constitution and laws.’ If he dispenses with witnesses and speedily steers the outcome to the one desired by the White House, that would reduce the Senate proceeding to the kind of “summary determination” that the three justices warned about.” the attorney explained. “Collectively, such actions could be seen by reasonable judges as ‘seriously threatening the integrity of the results’ — the standard [Justice David} Souter suggested should trigger judicial review.
According to Robenalt, Chief Justice John Roberts has the right and duty to step in if he sees justice not being served.
“Since the Constitution grants the chief justice the privilege of presiding over the trial, he ought to have — and in my view does have, under proper constitutional interpretation — considerable power to steer the Senate toward reasonable standards for weighing evidence and rendering judgments. He cannot and should not be a potted plant.,” he explained. “The current Senate rules, however, reduce the chief justice’s role to one of subservience and ceremony; even his rulings on admissibility of evidence can be overridden by the Senate. That cannot possibly be what the founders intended.”
“If McConnell and his Republican colleagues insist on setting rules that turn the trial into a farce, then the matter would be ripe for judicial review, as outlined by the various justices in Nixon v. United States. The House — through the speaker or the impeachment managers — could take the matter to court,” he concluded.
You can read the whole piece here.