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Alan Dershowwitz argues that a conviction of any President by the US Senate would be unconstitutional under certain circumstances. Please see his book and his television interviews for those certain circumstances that he argues would create a unconstitutional conviction.

However the circumstances that he puts forward are not what prompts me to ask the question above.

Generally US citizens expect the judiciary to be the arbiter of constitutionality, with the US Supreme Court to be the final arbiter of in the event of an appeal. So, are US Senate impeachment convictions reviewable by the judiciary and or the Supreme Court

In the event that the answer to the title question is "yes", have any impeachment convictions been reviewed by the Supreme Court?

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    "drunkeness, bias, and abusive behavior are not high crimes" what definition of "high crime" are you using? It's quite clear to me that such behavior was understood at the time of the constitution either to be a "high crime" or a "high misdemeanor," and certainly to fall within "high crimes and misdemeanors." – phoog Jan 19 at 17:16
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    @phoog, Dershowitz on TV today, asserted a distinction between (what he called) "low crimes". However he provided no amplification on what the actual distinction was, only that 'you can't impeach (or convict) for low crimes'. – BobE Jan 19 at 17:36
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    I am quite unconvinced by what I've heard of his arguments on this question, but without knowing what he means by "low crimes," it's impossible to respond to this particular assertion. But I am convinced from what I've seen of the records of the constitutional convention and of the history of impeachment in England and the UK that "high crimes and misdemeanors" includes abuse of office for personal political gains. – phoog Jan 19 at 17:45
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    “High crimes” doesn’t mean what you think it means. See law.stackexchange.com/q/30736/344 – Dale M Jan 19 at 19:52
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    @MatthewElvey. Dershowitz's statements on CNN on 1/19/20 caused me to wonder if impeachment convictions are reviewable by the Supreme Court. That is the question I asked, no premise, therefore no false premise. To the best of my recollection he did not say anything (today) about the Supreme Court, – BobE Jan 19 at 23:22
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The only relevant case heard by SCOTUS is Nixon v. US, 506 U.S. 224, where a federal judge was tried and convicted for actual crimes, but would not resign his position so continued to draw his salary. The key legal question was whether the matter is "justiciable" (meaning, not a political matter but a legal matter). Nixon's argument was that Senate Rule XI violates the Impeachment Trial Clause, and the court held that the question (more specifically what it means to "try") is nonjusticiable. White & Blackmun, and Souter, wrote concurring opinions (which might be called on in a subsequent impeachment case) that reminds the reader (and future court) what was not part of the holding of the court, and what might therefore allow future impeachment review. White writes

The Court is of the view that the Constitution forbids us even to consider his contention. I find no such prohibition and would therefore reach the merits of the claim. I concur in the judgment because the Senate fulfilled its constitutional obligation to "try" petitioner.

He observes that

the Senate has very wide discretion in specifying impeachment trial procedures and because it is extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges.

But,

I would prefer not to announce an unreviewable discretion in the Senate to ignore completely the constitutional direction to "try" impeachment cases. When asked at oral argument whether that direction would be satisfied if, after a House vote to impeach, the Senate, without any procedure whatsoever, unanimously found the accused guilty of being "a bad guy," counsel for the United States answered that the Government's theory "leads me to answer that question yes." Tr. of Oral Arg. 51. Especially in light of this advice from the Solicitor General, I would not issue an invitation to the Senate to find an excuse, in the name of other pressing business, to be dismissive of its critical role in the impeachment process.

Souter in his opinion states that

One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply" 'a bad guy,'", judicial interference might well be appropriate. In such circumstances, the Senate's action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.

In other words, review of an impeachment is largely but not entirely off the table, at least until SCOTUS declares that impeachments are completely unreviewable, no matter what, period (unlikely to ever happen).

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  • Is it in fact the only opinion? I know it is the latest. I didn't know that no other cases involving impeachment ever reached SCOTUS. It would probably help to mention that it's a 1993 opinion. There has now been 2 Presidential impeachment attempts since that opinion was rendered. So its date maybe somewhat telling. – grovkin Jan 20 at 4:04
  • With regard to your first block quote (beginning with 'the Court is of the view...), what specific contention is Nixon making that the court is forbidden to consider. Presuming that Nixon was contending that the Court (or any court for that matter) had jurisdiction over impeachment convictions AND the Court had determined that they were forbidden to consider, why would they have accepted the case in the first place? – BobE Jan 20 at 4:12
  • @BobE That there's a case to hear at all. The ruling placed significant emphasis on the fact that the impeachment clause(s) are the only one(s) that use the word "sole" in the entire constitution. In particular, this would mean the courts have no constitutional authority over the matter at all. The concurrences were unhappy with this sort of blank check to Congress. It has been the general thrust of SCOTUS jurisprudence since Marbury v. Madison that the judiciary is the branch that bears the duty and power of determining what the laws and constitution say and require. – zibadawa timmy Jan 20 at 16:37
  • And Judge Nixon, or anyone else, can always appeal a holding of "we have no authority on this case" from a lower court, so as long as he was determined and had the resources for his legal counsel he could force it up the chain to SCOTUS. Which is exactly what happened. The supreme court then decided there was an important constitutional matter that needed resolution and agreed to hear the case (it only takes 4 of 9 justices for that). Ultimately they upheld the lower court's decisions (unanimously, though the concurrences disagreed on exactly why the impeachment should be upheld as valid). – zibadawa timmy Jan 20 at 16:42
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That the supreme court can declare laws unconstitutional follows from its position as the court of last appeal, the highest authority within the judiciary. The court has ruled that the constitution's grant to the houses of congress of the "sole" power to impeach and to try impeachments means that the houses' acts in those functions are not reviewable by the courts.

The answer to the question, therefore, is no. US Senate impeachment convictions are not reviewable by the Supreme Court.

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    Your first statement is incorrect. Any judge in any court can declare any relevant law brought up in a case as unconstitutional, and it is binding within that court and those inferior to it. And SCOTUS isn't even the court of last appeal. Congress can alter its appellate jurisdiction pretty arbitrarily, and there are in fact types of cases (often military related ones) for which SCOTUS does not have appellate jurisdiction, and some other court is the effective "court of last appeal". – zibadawa timmy Jan 19 at 19:27
  • @zibadawatimmy that the supreme court can declare laws unconstitutional does not imply that other courts cannot do so. But the power of federal courts to declare laws unconstitutional is not to be found anywhere other than in decisions of the supreme court. Perhaps I should have said "that the supreme court's finding a law to be unconstitutional is binding on lower courts follows from its position as...." Another element of course is that the courts are the usual venue in which statutes are enforced. Regardless, the supreme court cannot review the constitutionality of articles of impeachment. – phoog Jan 20 at 0:19
  • @zibadawatimmy nowhere does phoog claim that other courts cannot declare laws unconstitutional. They can, but such a decision can, and often is, then appealed and eventually makes its way to the USSC where there is no appeal. – jwenting Jan 20 at 12:00
  • Answer would be enhanced by citations to the pertinent language of the U.S. Constitution and the cases referenced. The conclusions is, in my opinion, correct, although there is very little case law on point. – ohwilleke Jan 20 at 18:20

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