When Lawyers Opine.....

I will be watching @AlanDersh on @IngrahamAngle at 10:00 P.M. He speaks the truth!

— Donald J. Trump (@realDonaldTrump) May 31, 2019

The significance of this legal argument is where it is published as much as what it argues.  It reads almost like a law review article that spins a bit of dicta (or less; the arguments Dershowitz relies on about impeachment without a Senate trial have no context, and he doesn't cite the cases he is quoting) into an argument no court would take seriously. Law review articles are rather notorious for that. Dershowitz twists that argument into one that leaps a logic gap to be his argument. But despite his efforts, you can't get there from here.

Point of publication is important because no law review would take this argument seriously enough to publish it, and Dershowitz knows it. It may sound clever to the laity, and certainly superior to a mere law blog post, but to a lawyer it's utter crap.

The citations to dicta tell the tale. Dershowitz references two arguments for judicial intervention in a hypothetical impeachment made without a trial. The courts have intervened in impeachment proceedings against Art. III judges, but the impeachment of a judge is not the impeachment of a POTUS. This is why the cases Dershowitz quotes from are important. Are they about impeachment of non-Presidents? They have to be, if they are impeachment cases at all. No President has been removed from office by impeachment. Would Justice White's argument hold in such a case? That's the question a law review article would have to face. Dershowitz doesn't even mention it.

Art. III judges have a lifetime appointment and arguably a greater property interest in their judgeship, which could give rise to due process claims upon an improper impeachment (such as one without a trial). Presidents have no such sinecure. Judges need to be secure in their position and not removed by political whim in order to function as impartial arbiters. Presidents attain and keep their office purely by political decision. They also stand to lose it prematurely by the political decisions of representatives and Senators. Any argument about the impeachment of a federal judge would not necessarily apply to the impeachment of a President. Again, Dershowitz knows this; he just prefers not to mention it.

White's argument is not based on a hypothetical Senate trial, but on no trial at all.  The Senate sets its own rules, and the courts will not interfere with those rules. This is basic Constitutional law. It is fundamental to the separation of powers. What White argues is the Senate cannot refuse to hold an impeachment trial. That, after all, is what the Constitution requires. Neither White nor the Constitution says anything about how that trial is conducted. That is determined by the rules of the Senate, which gets to set its own rules. So short of the extraordinary hypothetical White's argument postulates, his argument has no application to an impeachment, or a trial for removal from office.

White's argument does equally apply if the House doesn't impeach, but the Senate holds a trial and removes from office any Constitutional officeholder who can only be removed by impeachment. The Constitution requires impeachment by the House, and trial by the Senate.  If the House finds a crime has been committed and the Senate holds a trial, the Courts cannot violate the separation of powers to rule how the House defines "high crimes and misdemeanors," or how the Senate conducts an impeachment trial. And White's argument doesn't contradict that conclusion, even in the version Dershowitz provides. Dershowitz' argument, however, contradicts White's argument, and tries to give Presidents a protection that neither the Constitution nor precedent provides.  And a President not enjoying the same office as a judge, there's a serious question if an impeached and removed President would have standing to appeal the outcome of a Senate trial, especially one overseen by the Chief Justice of the Supreme Court.  Would the Court seriously accept the writ in such a case, when the Chief Justice would have to recuse him- or herself?

This is where Trump winds up by relying on free legal advice. It's worth what he pays for it. And honestly, if I can take it apart this easily, it's a very poor argument indeed. Nobody, after all, is going to confuse me with Lawrence Tribe.