House Speaker Nancy Pelosi’s (D-CA) decision to wait to deliver the two Articles of Impeachment to the Senate until that body has laid out the rules for the trial has set the stage for such a potential landmark court action.
As Feldman concisely put it, “Impeachment as contemplated by the Constitution does not consist merely of the vote by the House, but of the process of sending the articles to the Senate for trial” so the Senate can conduct a trial.
The point-counterpoint between Tribe and Feldman about how the impeachment process is supposed to work is far more than an academic debate between two Ivy League professors. It is a debate about how the most powerful person in the world — the president of the United States — is held accountable under the Constitution’s venerated system of checks and balances.
I suspect that many court watchers believe that the Supreme Court would consider any potential lawsuit that flows from Speaker Pelosi’s decision to delay delivery of the Articles of Impeachment to be a non-justiciable political question or, in other words, a case that is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not decide the dispute.
I disagree, however, that a lawsuit by President Trump about the House’s delay in transmitting the Articles of Impeachment to the Senate for trial would constitute a non-justiciable political question.
In their opinions concurring in the judgment in the Nixon case, Justices Byron White, Harry Blackmun, and David Souter wrote separately to voice their concern about foreclosing the impeachment process from judicial review. While the three Justices agreed that the Senate had done all it was constitutionally required to do during Judge Nixon’s impeachment trial — namely, appoint a committee of senators to hear the evidence against Nixon and later report to the Senate as a whole for a vote on his removal from office — they made clear that “arbitrary” impeachment processes would be subject to judicial review.
If “arbitrary” impeachment processes can be reviewed and overturned by the Supreme Court, so too can partisan impeachment processes such as that to which President Trump continues to be subjected. After all, no Republican member of the House voted to impeach the president and, despite their assertions to the contrary, both Speaker Pelosi and Professor Tribe appear to be motivated by a partisan desire to weaken President Trump during the 2020 election cycle.
As Justice Souter remarked in his separate opinion in the Nixon case, if the House or the Senate “were to act in a manner seriously threatening the integrity of its results, … say, … upon a summary determination that an officer of the United States was simply ‘a bad guy,’ … judicial interference might well be appropriate.”
In President Trump’s case it surely is.