Though House Democrats passed two articles of impeachment against President Donald Trump late last month, House Speaker Nancy Pelosi (D-CA) still hasn’t sent them to the Senate for trial, according to Fox News. Now, one legal analyst is saying that Trump may not have to bother with a Senate trial at all.
Writing for Law & Crime, California-based trial attorney Robert Barnes argued Wednesday that Trump could ask the court system — all the way up to the Supreme Court — to dismiss the charges against him before the Senate ever has a chance to try them.
Defining “high crimes”
According to Barnes, the question at issue is “whether the courts can define what constitutes ‘high crimes’ under the [Constitution’s] impeachment clause, or whether that definitional power is exclusively delegated to the House.”
“The relevant issue in Powell was whether courts could review the House of Representatives’ conclusion that [Rep. Adam Clayton Powell, Jr.] was unqualified to sit as a member [of Congress] because he had been accused of misappropriating public funds and abusing the process of the New York courts,” Barnes writes, citing the case. He went on:
The [Supreme] Court concluded that when the [c]onstitutional terms at issue “are defined and fixed in the [C]onstitution,” then they are “unalterable by the legislature.”
But the court went further in their Nixon decision several decades later, with some justices even suggesting that “any aspect of impeachment could be subject to judicial review,” according to Barnes.
In that vein, according to the attorney, “Trump could use the courts to contest whether the House has final, unreviewable authority on what constitutes a ‘high crime’ akin to ‘treason.'”
“The House has charged ‘abuse of power,’ which is not even a crime at all, and ‘obstruction of Congress’ for asserting executive privilege, which is equally undefined as a generic crime,” Barnes writes. “Under the same logic as applied in Powell, Trump could seek judicial review as to whether either can [c]onstitutionally constitute ‘high crimes’ meriting [p]residential impeachment.”
“If no law fits, you must acquit”
For his part, it seems Barnes believes neither of the charges lodged against Trump constitute impeachable offenses.
“Many legal scholars, and Democratic [s]enators, agreed in 1999 when [former President Bill] Clinton was impeached, that few crimes fit the definition of ‘high crimes’ akin to treason,” he wrote Wednesday. “Even Trump critic Laurence Tribe once agreed that high crimes is such a limited term, it might not even apply to murder.”
As the famed Justice Curtis explained in the infamous impeachment of Andrew Johnson: “There must be some law; otherwise there is no crime.” If no law fits, you must acquit.
With the Senate poised to acquit the president on its own, it looks like Trump may not need to ask the Supreme Court to intervene. Still, it’s nice to know that the president has other avenues of getting around Democrats’ impeachment circus available to him. As we get back into the swing of Washington theatrics this New Year, Trump can use all the help he can get.