The result is … something.
The column is an impeachment defense of Trump cloaked in a plea for the Supreme Court to actually declare his impeachment unconstitutional. Let’s walk through it:
While the Constitution does give the House broad discretion in impeachments, there are limits. The most explicit of these is that impeachment can only be for, “Treason, Bribery, or other high Crimes and Misdemeanors.” (Art. II, Sec. 4, U.S. Constitution) However, the articles for impeachment voted on by this entirely partisan Democratic Congress, which are currently being unconstitutionally withheld from the Senate, charge no such offenses. In fact, abuse of power and obstruction of Congress are not crimes of any kind, high or low.
Here is the first time Giuliani will suggest that the Constitution requires statutory crimes to impeach a president, but it won’t be the last.
However you feel about Democrats not directly accusing Trump of a crime in the articles of impeachment — and I’ve suggested it might not be optimal from a strategic standpoint — there is basically no dispute among constitutional scholars that the Constitution doesn’t require them to. “High crimes” doesn’t refer to very bad crimes; it means misdeeds related to high office. And “misdemeanors” doesn’t mean a crime that isn’t a felony, as it does in the American criminal code; it refers broadly to offenses. Even Jonathan Turley, the constitutional scholar Republicans called as an expert on impeachment, said a crime was not required to impeach a president.
With that extremely faulty premise out of the way, Giuliani continues to describe House Democrats in very colorful terms:
The chairmen who conducted the hearings were like a rogue judge who announced in advance Trump will be executed, but they will still grant him a trial of some kind. Their proceedings made a mockery of due process, violating almost every right granted to an accused.
This would be true, except for the fact that the person in the metaphor is executed, while Trump is unlikely to face any punishment at all. Impeachment is merely the referral of a president for trial in the Senate, where Trump will in all likelihood be acquitted because it requires 67 votes and there are only 47 Democrats.
And now to the meat of Giuliani’s column:
Indeed, the Constitution is silent on the Supreme Court’s role in an impeachment except to provide that it is presided over by the chief justice. However, the Constitution is also silent on the court’s power to declare federal and state laws and government action unconstitutional. It was determined by former Chief Justice John Marshall that judicial review is implicit as the only logical answer to constitutional standoffs between the legislative and executive branches or between the federal and state governments. The reasoning of Marbury v. Madison certainly supports the court having the power to declare an impeachment as unconstitutional if it is an overreach of the carefully balanced separation of powers.
The logic here, such as it exists, is this: The Constitution does not address whether the Supreme Court can strike down an impeachment, and thus it’s an open constitutional question that the court can decide upon. But it’s not clear in this case what the constitutional dispute would even be, since the Constitution rather clearly doesn’t require actual crimes for impeachment.
The net effect would be that the Supreme Court would be inserting itself into the highest of high-profile disputes between the legislative and executive branches, even though it definitely doesn’t have to and even though Trump is essentially being accused of things people have been impeached for previously.
Perhaps the biggest problem with Giuliani’s idea, though, is that the Supreme Court appears to have already settled this issue. In its 1993 decision in Walter Nixon v. United States, the court unanimously ruled that it couldn’t review how the Senate conducts impeachment trials because the Constitution says, “Senate shall have sole Power to try any impeachments." As the whether that would apply to the House impeaching in the first place? The Constitution also says, “The House of Representatives ... shall have the sole Power of Impeachment.”
Giuliani, though, thinks there is a compelling reason for such an extraordinary intervention:
If this impeachment is not declared illegal it would remove the constitutional limitation of crimes on the power to impeach. It would allow the House to impeach for policy differences or political leverage.
The first sentence here is a bit inscrutable, but it sounds like Giuliani is saying the court must act because otherwise Congress could impeach for things that aren’t crimes. This, again, is already the case.
And now, the conclusion:
Although there would be an immense amount of political benefit for Trump if there were to be a lengthy Senate trial, proving the vast crimes committed by Democrats during this baseless inquiry, it would be far better for the Supreme Court to reestablish the 229-year constitutional balance between our branches of government.Then, once again, we can be a government of laws.
I wonder if Trump knows that his personal lawyer is trying to deprive of him of such a tremendously beneficial process.