The decision to impeach is not subject to review by the courts

The decision to impeach is not subject to review by the courts
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If nothing else, the impeachment of President TrumpDonald John TrumpCNN's Don Lemon explains handling of segment after Trump criticism NPR reporter after Pompeo clash: Journalists don't interview government officials to score 'political points' Lawyer says Parnas can't attend Senate trial due to ankle bracelet MORE has become a full employment plan for constitutional law professors. They are opining on the legality and validity of the House Judiciary Committee efforts and serving as expert guides to both members of Congress and lawyers for the White House. As with most cases turning on expert testimony, there are opinions on both sides of the many issues raised by impeachment.

One of the questions is whether Trump has, in fact, been impeached. The House voted to impeach him last month, but members departed without sending the two articles to the Senate. Speaker Nancy Pelosi has said the House will wait for assurance from Majority Leader Mitch McConnell that the Senate trial on the two articles will be appropriately broad and fair.

On this issue, law professor Scott Gerber of Ohio Northern University, has suggested in an opinion column that the president ought to ask a federal court to decide whether he has been wronged by the refusal of the House to transmit the articles of impeachment. One obstacle to this, however, is what is known as the political question doctrine. Under this doctrine, the courts have long declined to address particular constitutional questions because they are either committed by text to the judgment of another branch of government or because there is no discernible standard that permits them to resolve such questions objectively and consistently.


Gerber nonetheless seeks support for his position in the Supreme Court decision in Walter Nixon versus United States. In this 1993 decision, the justices unanimously concluded that they should not second guess the conviction by the Senate of a federal judge on articles of impeachment for giving false statements. Judge Nixon had made the case that, because the constitutional text authorizes the Senate to try all impeachments, his conviction could result only from a trial resembling a judicial proceeding. Rejecting this argument, the Supreme Court maintained that the Senate holds the sole authority under the Constitution to define the term try.

Notably, a few of the justices wrote in concurring opinions that suggested impeachment determinations might not be entirely immune from judicial review. David Souter noted that an entirely arbitrary process by the Senate would raise constitutional concerns and be subject to judicial review if, for instance, the Senate decided whether to convict based on a coin toss.

Picking up on this point, Gerber contends in his column that, if arbitrary impeachment processes are subject to judicial review, then so too are “partisan impeachment processes such as that to which President Trump continues to be subjected.” His impeachment is arbitrary, according to the argument by Gerber, because “no Republican member of the House voted to impeach,” and Pelosi “appears to be motivated by a partisan desire to weaken President Trump during the 2020 election cycle.”

There are two problems, however, with this argument. First, the decision in Nixon concerned the Senate authority to try an impeached official, not the House authority to investigate and impeach. Indeed, it makes a great deal of sense that the nature and substance of impeachment inquiries and investigations are left exclusively to the House, the most democratically representative department of the federal government. The Supreme Court is likely to respect the value of this embedded political check of power.

Second, the kind of arbitrary process Souter had in mind is one that is without reason. A coin toss in no way speaks to the merits of the House investigation or its accusations in the case of a particular impeachment, and a Senate conviction on a coin toss would offend the most basic sense of justice. But the impeachment of Trump was not the result of a coin toss. It followed months of investigation and hearings by the House Intelligence Committee and House Judiciary Committee. Republican lawmakers might not have agreed that the evidence produced was sufficient to warrant an impeachment. However, that disagreement does not make it arbitrary.

Even assuming, as Gerber does, that “arbitrariness” provides a sufficient standard for evaluating an impeachment, it is not likely any court would strike down the articles of impeachment passed last month. The House could easily show that it had reason to impeach Trump by pointing to the evidence and statements that are already in the record. No judge is likely to conclude that, in the face of the publicly available facts, a majority of the House acted unreasonably in determining that the president should be impeached, even if their Republican colleagues disagree with them.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”