First, he suggests that Justices Breyer and Souter said that a president can appeal an impeachment to the Supreme Court, quoting them supposedly making this argument as if it this claim has some legal merit.
However, not only do neither of the quotes he relies upon have any binding legal authority, they both concern conviction and removal by the Senate, not impeachment. (Dershowitz, unsurprisingly, muddled his argument and conveniently edited Justice Souter's quote, probably in order to confuse the issue). Moreover, he conveniently edits one of the quotes to better suit his purpose.
"Two former, well-respected justices of the Supreme Court first suggested that the judiciary may indeed have a role in reining in Congress were it to exceed its constitutional authority. Justice Byron White, a John F. Kennedy appointee, put it this way: “Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibility because the Senate has precipitated a crisis.”
Justice David Souter, a George H. W. Bush appointee, echoed his predecessor: “If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.”
Justice White's quote came in a footnote to his concurrence in
U.S. v. Nixon (1974), so it has no legal significance or precedential value. Neither does Justice's Souter's comment, which he made in his concurrence in
Nixon v. U.S. (1993) (a different Nixon, an impeached judge, not Richard). His full quote is:
"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."
Neither of these comments have the force of law and neither of these Justices is currently on the Supreme Court (White is deceased, Souter is retired). But more important, these comments refer not to
impeachment, but to trial and conviction, In this instance, it is very unlikely that the Republican Senate would convict Trump at all, much less do so on a buggaboo.
Trump didn't threaten to appeal conviction and removal. He said he would appeal
impeachment. Nothing in Dershowitz's tortured and misleading argument supports his claim that an impeachment can be appealed - (he also doesn't offer any valid legal basis for claiming a conviction and removal can be appealed, either - footnotes in concurrences aren't law).
In other words, once again, Dershowitz is full of shit.
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