Laurence H. Tribe, a professor of constitutional law at Harvard, is the co-author of “To End a Presidency: The Power of Impeachment.”
Imagine if in 1972, President Richard M. Nixon, rather than routing his opponent, had barely won the presidential election. In that world, when evidence came to light that Nixon had committed impeachable offenses during his campaign, it would have been plausible to suppose that those offenses were essential to his victory.
And the stakes would then have been even higher than they were when, in 1974, the Supreme Court was deciding whether Nixon had to comply with a grand jury demand that he deliver up subpoenaed tapes and documents that would prove whether those offenses, and abuses of executive power to cover them up, had indeed been committed by the president. As we all know, United States v. Nixon came out 8 to 0, sounding the death knell of Nixon’s presidency, once he produced the incriminating tapes.
A similarly unanimous outcome would be less likely today, however. Observers need look no further than Bush v. Gore to conclude that the court’s heightened polarization and the pro-executive leanings of several of its justices point to a closely divided ruling in an increasingly-less-hypothetical “United States v. Trump.”
So instead imagine a Trump appointee to the court — one named as impeachment clouds were gathering and seemingly selected with a presidential eye focused sharply on his pro-presidential writings — casting the deciding vote in a future case against Trump, involving an issue such as the president’s obligation to comply with a subpoena to testify or the president’s amenability to indictment.
If that doesn’t sit right with you, you’re not alone: It didn’t sit right with the framers, either.
The framers built the Constitution on the premise that men aren’t angels, and they did not trust a president’s nominees to the Supreme Court to be impartial in determining whether he should stay in office. At the Constitutional Convention, Virginia’s George Mason thought judges “surely” ought not preside over the impeachment trials of presidents to whom they owed their jobs; Connecticut’s Roger Sherman agreed. So the framers came up with a solution: They assigned the impeachment power to the House and the power to try impeachments to the Senate.
To the Supreme Court, the framers reserved an almost exclusively ceremonial role in impeachment, assigning the chief justice to preside over the president’s trial in the Senate. Of his limited role in President Bill Clinton’s impeachment trial, then-Chief Justice William Rehnquist later said, “I did nothing in particular, and I did it very well.”
The framers, however, did not anticipate two major changes to the court that have given it a significant role in the impeachment process. The court has gone from what Alexander Hamilton famously called the “least dangerous” branch to being a muscular and often partisan powerhouse with the ability to halt a criminal investigation before the impeachment process has even begun. In addition, our increasingly broad and unwieldy law-enforcement and investigative apparatus has given today’s Supreme Court many more opportunities to supervise criminal investigations and prosecutions.
As a result, with Judge Brett M. Kavanaugh’s confirmation hearings set to begin just as pressure to impeach President Trump palpably mounts, the framers’ attempt to guard against the court’s bias has failed.
It’s true that three of Nixon’s appointees to the court voted against him in the famous Watergate tapes case; the fourth (Rehnquist) recused himself. Still, it’s hardly a stretch to think that, consciously or not, bias might incline a justice to rule in favor of the president who appointed him. Even more than Trump’s other exercises of his power, including his appointment of Justice Neil M. Gorsuch, confirming Kavanaugh at this possible inflection point in the Trump presidency would have special historical significance.
Impeachment proceedings look more likely today than at any previous point in Trump’s presidency. Trump’s former longtime personal attorney pleaded guilty to two major felonies, which he said were committed at the president’s direction to influence the election. The sitting president is thus effectively an unindicted co-conspirator in a secret plot to use hush money to tilt the 2016 election through deliberate commission of crimes. If a Justice Kavanaugh were to cast a deciding vote in a case against Trump, it could determine the fate of his presidency and forever alter the nation’s future. The framers found such a vote worthy of special attention and designed the impeachment process specifically to avoid it.
Trump is under credible threat of impeachment for crimes allegedly committed at his direction in service of his election. A special counsel is probing his campaign’s possible cooperation with a hostile foreign nation. As that storm and others rage, Trump has nominated an Article II maximalist to the Supreme Court — a man who may well have been selected specifically for his antipathy to prosecution or even investigation of any sitting president. There is no need to hurry. The slowly mounting chorus of senators calling for a pause in Kavanaugh’s confirmation would have resonated strongly with the framers. Their views cannot rule us from the grave, but the structure they created has served us well.
The Senate can and should act to protect the framers’ design.