WASHINGTON — “If the partisan Dems ever tried to Impeach,” President Donald Trump wrote on Twitter in the spring, “I would first head to the U.S. Supreme Court.”
Now that impeachment seems virtually certain, it is time to assess Trump’s vow and ask whether the Supreme Court would entertain his challenge.
The Constitution seems to exclude the court from the impeachment process. It grants the House of Representatives “the sole power of impeachment.” The Senate, similarly, has “the sole power to try all impeachments.” Those are the only provisions of the Constitution that use the pointed word “sole.”
The Supreme Court, too, has been pretty categorical.
“The judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments,” Chief Justice William H. Rehnquist wrote for the court in a 1993 opinion that rejected an impeached judge’s objection to the procedures used at his Senate trial.
Rehnquist’s statement had particular force, as he was a student of impeachment. He had just published “Grand Inquests,” a history of the impeachments of President Andrew Johnson and Justice Samuel Chase.
The Constitution does give the chief justice one task.
“When the president of the United States is tried,” it says, “the chief justice shall preside.”
In 1999, Rehnquist presided over the impeachment trial of President Bill Clinton. Chief Justice John Roberts, who succeeded Rehnquist after his death in 2005, will preside over Trump’s Senate trial if the House impeaches him.
But the chief justice’s role is largely ceremonial, as Michael J. Gerhardt, a law professor at the University of North Carolina, wrote in a 1999 review of “Grand Inquests,” which had been reissued after Clinton’s impeachment.
“Chief Justice Rehnquist demonstrated a great sensitivity to adhering to and respecting Senate procedures and precedents,” Gerhardt wrote. “No one understood better than the chief justice that the impeachment trial was the Senate’s to conduct as it saw fit.”
In the 1993 case, Judge Walter L. Nixon Jr., a former chief judge for the Southern District of Mississippi, challenged his removal by the Senate after he was convicted of perjury, sent to prison and impeached by the House.
Nixon said he had not received the trial guaranteed by the Constitution because a committee of senators, rather than the entire Senate, had heard the evidence against him. The full Senate went on to vote to remove him by far more than the constitutionally required two-thirds majority.
The Supreme Court unanimously ruled against Nixon. Rehnquist said the matter was a “political question,” meaning that it was for the Senate to decide how to conduct its impeachment trials.
Rehnquist used his opinion in the case to reflect on presidential impeachments, although he could not have known he would preside over the trial of the second one in the nation’s history. There were particularly good reasons for the Supreme Court to stay out of the impeachment process, Rehnquist wrote, “if the president were impeached.”
“The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated,” he wrote.
When the case was argued in 1992, Justice Anthony Kennedy said the Supreme Court’s legitimacy could suffer, too.
“It means that judges, some of whom have been appointed by the president who’s being impeached, will be involved in the process,” he said, “and the integrity and the independence of the court may come into question, which would cause severe damage to the courts as an institution over time.”
Still, the 1993 decision did appear to leave open a possible role for the court were the Senate to violate what Rehnquist wrote were “the three very specific requirements” in the constitutional text — “that the Senate’s members must be under oath or affirmation, that a two-thirds vote is required to convict and that the chief justice presides when the president is tried.”
When the case was argued, he asked the government’s lawyer, Solicitor General Ken Starr, whether violations of those provisions could be challenged in court. (Starr would go on to investigate Clinton as independent counsel and to prepare the report that led to his impeachment.)
For instance, Rehnquist asked, what would happen if the chief justice died and Congress “created the office of vice chief justice?”
“We’re going to let him preside,” the chief justice said, sketching out the Senate’s reasoning, “because it would just be catastrophic to wait for the appointment of a chief justice while this impeachment is pending.”
“Can the Senate not do that because of the specific language ‘the chief justice shall preside’?” Rehnquist asked. “Would that action by the Senate, followed by the presiding by the vice chief justice, be judicially reviewable?”
“I have to admit,” Starr said, with apparent reluctance, that the answer was yes.
In general, though, Starr said, the Senate may conduct impeachment trials as it sees fit. Justice Byron R. White asked if the Senate could vote to remove an impeached official “without any trial or anything else” on the theory that he was “a bad guy.”
“My theory,” Starr said, “has to lead me to answer that question yes.”
Years later, reflecting on his role in the Clinton impeachment trial, Rehnquist was self-deprecating, borrowing a line from a favorite Gilbert and Sullivan operetta.
“I did nothing in particular,” he said, “and I did it very well.”