The Hill: Top Dem: Supreme Court has ‘no role’ in impeachment

The leading legal voice among House Democrats on Wednesday disputed President Trump‘s vow to take any impeachment effort to the Supreme Court.

Rep. Jamie Raskin (D-Md.), a former constitutional law professor, said the high court has “no role” in impeachment proceedings, which the Constitution explicitly empowers Congress to undertake.

“The Supreme Court has no role in impeachment, and cannot be appealed to in an impeachment,” Raskin said during a press call organized by the Jewish Democratic Council of America.

“In fact, the Framers specifically rejected putting the courts in charge of impeachment,” he added. “They wanted to leave it to the wisdom of Congress and to let bicameralism work its magic.”

Raskin, a member of both the Judiciary Committee and Speaker Nancy Pelosi‘s (D-Calif.) leadership team, noted one exception to that separation-of-powers dynamic: If the House passes an impeachment resolution and sends it to the Senate, the chief justice of the Supreme Court presides over the trial phase in the upper chamber. That was most recently the case with former Chief Justice William Rehnquist, who oversaw the Senate deliberations surrounding the 1998 impeachment of President Clinton.

But Rehnquist, Raskin said, “was proud of the fact … that he said he basically had no substantive role” in the process.

“He just literally stood in the front of the room, presided over the trial, called on the different lawyers, called on senators who wanted to speak and so on. But that’s it,” Raskin said. “There’s no provision in the Constitution for any kind of appellate tribunal to be formed in the Supreme Court. So if there are lawyers left in the White House, someone should explain that to the president.”

Pelosi has long sought to defuse any talk within her caucus of impeaching Trump, arguing that Democrats would first need to gather more evidence of potential wrongdoing through aggressive investigations — and bring the public on board with the idea. That challenge has been made more difficult by last week’s release of special counsel Robert Mueller‘s report into 2016 election meddling and allegations of misconduct by Trump and his campaign team.

Raskin said Mueller’s report outlined offenses “far more impeachable than anything that Bill Clinton did,” putting Congress “in impeachment territory.” But he also said Democrats are applying a higher bar than Republicans did in 1998, when they impeached Clinton for obstructing justice by lying under oath about an affair with a White House intern.

“It went to questions of private conduct and not public conduct,” he said of the Clinton episode. “On the GOP standard we would have impeached Trump a long time ago for his hush money payoffs to his various mistresses in a way that violated campaign finance law.”

Applying another historic reference, Raskin noted that it took months of investigations and public hearings into the Watergate scandal to bring the public — and in turn, Republicans — behind the idea of ousting President Nixon. It’s that model that Pelosi and Democratic leaders are now adopting — while leaving impeachment on the table.

“There’s lots of reasons to think about doing it, and lots of reasons not to think about doing it, and it’s way too early to make that call even though the media just wants a thumbs-up or a thumbs-down,” Raskin said.

“The public is just waking up to the enormity of the presidential misconduct that’s contained in the report,” he added. “That’s what the hearings are about.”

Raskin laid out a list of areas where he says the administration is acting unlawfully, including its refusal to turn over Trump’s tax records and, more recently, the president’s vow to fight “all the subpoenas” being issued by Democrats in the course of their various investigations.

“No Democratic president, and no other Republican president, has ever dared to say that Congress cannot obtain information from the administration,” Raskin said. “People have different privileges that they can attempt to assert, and that’s going to be settled as a matter of law or negotiation and compromise. But everybody owes Congress sworn testimony.”

He added, “It is possible that we would have to hold people in criminal or civil contempt.”

Raskin reserved his sharpest critiques for William Barr, Trump’s appointed attorney general, who previewed the release of the Mueller report with echoes of the president’s own vigorous claims that the 22-month investigation had uncovered no evidence of “collusion” or obstruction of justice.

Mueller made clear he did not investigate “collusion,” which is not a legal term, and he declined to exonerate Trump on the question of obstruction.

Raskin did not endorse the calls for Barr to resign, as some liberal groups are advocating, including the Jewish Democratic Council of America. But he said the attorney general has already lost all credibility in the eyes of Democrats.

“In some sense, Attorney General Barr has already resigned as the chief law enforcement officer of the United States,” Raskin said.

“He has no credibility left, quite simply, because he has been acting as a paid federal criminal defender of the president of the United States,” he added, “and that is a disgrace to the legal profession.”