President Donald Trump can and will successfully apply to the Supreme Court the moment the US House of Representatives passes any Impeachment resolution, if that occurs. Legal luminaries such as Professor Alan Dershowitz wrote an article positively treating President Trump’s Supreme Court Impeachment claims. Other constitutional scholars and articles have hysterically panned President Trump’s likely Supreme Court Gambit.
Both sides have referenced the 1993 impeachment case of “Nixon v. US” as their legal authority. No, not that “Nixon” as in President Richard M. Nixon of Watergate fame, but one Walter L. Nixon, Jr. a disgraced Federal judge who was actually convicted by a jury “beyond a reasonable doubt” of two separate counts of making false statements before a federal Grand Jury, and actually sentenced to prison.
Walter Nixon refused to “resign” his federal judgeship, and was collecting a federal judicial salary in prison. So, the government had to “impeach” him to stop his federal paycheck. The Judge Nixon Supreme Court majority’s legal reasoning is actually the very legal basis for President Trump’s applying to the Supreme Court, and defeating his Impeachment: not on the House “procedures” of Impeachment, but on the substance of the constitutional term of art “high crimes and misdemeanors.”
The Nixon v. US case involved claims by the then-Judge Nixon that the Senate’s impeachment “procedures” were somehow infirm, and therefore, the Senate’s finding him guilty of impeachment was infirm. The specific details of Judge Nixon’s claims about the Senate’s procedures aren’t really important for purposes of this article. What is important is that Judge Nixon only claimed the Senate’s impeachment procedures were infirm, not that the substance of the charges against him were somehow not “high crimes and misdemeanors.” Since, Judge Nixon was actually found guilty by a federal jury that he was “beyond a reasonable doubt” guilty of making false statements to a Federal Grand Jury, Judge Nixon’s actually adjudicated felony crimes clearly hurdled the definitional constitutional requirement of “high crimes.”
In President Trump’s case, President Trump will not seek the Supreme Court’s adjudication of a veto over the House’s impeachment procedures. Rather, President Trump will attack the likely legally lightweight factually alleged claims as not raising to the substantive level of “high crimes and misdemeanors.”
And it is on the turn of the very question of Impeachment “procedure” as opposed to Impeachment “substance” that the Supreme Court, based on Nixon v US, will find the definitional substance of “high crimes and misdemeanors” “justiciable” and rule for President Trump, and void a House impeachment.
To understand the coming Trump v. House-based legal arguments better, one has to look a little deeper at the actual US Constitution itself. The key aspect of the US Constitution itself that will be determinative for a Trump v. House Supreme Court determination is not the Impeachment procedures that are empowered to the Congress in Article 1, or the “Legislative Article” of the Constitution.
But rather President Trump will challenge the House under the constitutional Impeachment definitional substance of “high crimes and misdemeanors” found in Article 2, or the “Executive Article” of the US Constitution. As we will see, this Legislative Article 1 versus Executive Article 2 distinction will be determinative in the Supreme Court’s ultimate finding for President Trump.
In Nixon v. US, Chief Justice Rehnquist writing for the majority stated the legal standard for the Nixon v US decision as:
“A controversy is nonjusticiable—i. e., involves a political question—where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it . . . .” Baker v. Carr, 369 U. S. 186, 217 (1962).” Nixon v. US, 506 U.S. 224, at 228 (1993)
This sounds complicated, but it isn’t. It means to be a too too hot potato “political question” for the Supreme Court to rule on, the issue has to be either
1) One where the US Constitution specifically relegates the issue at issue as one solely of one of the three branches of government, or,
2) One where the claimed constitutional issue is susceptible to meaningful legal interpretation. President Trump will satisfy both of these Nixon “political question” prongs, and will defeat the House on its impeachment definition of “high crimes and misdemeanors.”
On the first Nixon “solely one branch” constitutional prong, unlike Nixon v US, where Judge Nixon solely raised a question on just the text of an Article 1 “Legislative” Article procedural constitutional infirmity, President Trump will be raising an Article 2, “Executive” Article substance constitutional infirmity of the House definition of the Article 2 “high crimes and misdemeanors.”
By the very definition of President Trump’s claim, the Supreme Court will have to look outside of the text and constitutional authority of the Legislative Article 1, and into the heart of the powers and obligations of the Executive Article 2.
Therefore, by definition, President Trump’s case “textually demonstrates” it is not solely a Legislatively based Article 1 issue, but really an Article 2 Executive question. Therefore, President Trump will not satisfy the first Nixon prong for being characterized as a “political question.”
On the second Nixon “judicially discoverable” constitutional prong, President Trump will receive help from a very unlikely source: the Democrat majority House Judiciary Committee of 1974. The Democratic House Judiciary Impeachment Report of 1974, issued in the wake of the Nixon Watergate scandal, was issued under the Democrat Chairman Peter Rodino, Jr. and entered into the record by the Democrat Zoe Lofgren of California. The report stated that:
“High Crimes and Misdemeanors” has traditionally been considered a ‘term of art,’ like such other constitutional phrases as ‘levying war’ and ‘due process.’
“The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them,” Chief Justice Marshall wrote of another such phrase:
“It is a technical term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our constitution in the sense which had been affixed to it by those from whom we borrowed it.57”
Therefore, the Democrat House Judiciary is on record as stating that “high crimes and misdemeanors” is a “term of art”, and hence, is completely susceptible to “judicially discoverable and manageable standards for resolving” its meaning. And secondly, the Supreme Court has already ruled on similar questions because, “The Supreme Court has held that such phrases must be construed, not according to modern usage, but according to what the framers meant when they adopted them.” Hence, the House Committee has stated that the the Supreme Court “must” construe legal “terms of art” found in the US Constitution. Thirdly, they specifically cite Chief Justice Marshall for finding that a constitutional “term of art” “judicially discoverable” and capable of “manageable standards.”
In conclusion, President Trump has only begun to fight, and fight he will. Be prepared for many other legal claims that will throw the House Democrats into hysteria and will surely win President Trump a second term.
Author: Mark Langfan is Chairman of Americans for a Safe Israel (AFSI). He specializes in security issues, and has created an original, educational 3D Topographic Map System of Israel to facilitate clear understanding of the dangers facing Israel and its water supply. It has been studied by U.S. lawmakers and can be seen at www.MarkLangfan.com.
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