A question for the legal experts?

[kentuck]

I believe Trump's only defense is that the trial is "unconstitutional" and his goal is to get the Supreme Court to rule on the question. I believe that is the direction he is going?

My question is: Can the Congress ask the Court to rule on the "constitutionality" before Trump asks them?

Because if Trump appeals to the Supreme Court to rule on the question, then the matter of payback arises, with his appointment of three of the Court Justices. Can they rule fairly and constitutionally?

Do you believe the Court will rule on this issue?

[servermsh]

1. I don't think Trump is asking the Supreme Court to rule. Only for Republicans to vote not guilty

IMHO, Trump is using that desperate argument so Republican Senators can pretend to care while voting to not convict.

I can't imagine the Supreme Court ruling on this matter, or even if it did, ruling anything other than it is up to the Senate.

EDIT: Oh, and I'm not a legal expert.

[Qutzupalotl]

2. non-expert here

but the article about Trump firing his lawyers said he did so because they wanted to argue about the constitutionality of impeaching a former president; he wanted them to instead argue that the election was stolen and that Trump won. It's unclear he can continue to fight the election results, but he seems uninterested in any strategy that does not result in him being president again. I guess he's assuming the Senate will acquit, which may be a safe bet.

[PJMcK]

3. I'm not a lawyer

But I believe I've read legal opinions that the Supreme Court doesn't rule on hypotheticals, only on actual cases that require resolutions or clarifications. SCOTUS doesn't give opinions.

[former9thward]

4. The SC will not honor a request from either Congress or Trump.

It is not a judicial case.

[SoonerPride]

5. This is the correct answer. 👆🏻

Impeachment is a political issue and the SC will not rule one way or another on it.

Impeached and convicted doesn’t get to appeal to SC.

Impeached and acquired also doesn’t get to appeal to SC.

[kentuck]

11. Thanks!

makes sense.

[StarfishSaver]

14. True. This can't be appealed

But see my post below - I do think a disqualification can be challenged and ruled on by the Court at a later time.

[Mr.Bill]

13. True. No one is being deprived of their life, liberty or property.

It's really more like being kicked out of a club.

[soothsayer]

6. Well there's this story from last year that might (or not) shed some light

https://www.washingtonpost.com/outlook/the-supreme-court-can-review-an-unfair-impeachment-trial/2020/01/10/00dae97c-32fa-11ea-91fd-82d4e04a3fac_story.html

Snip

The only Supreme Court decision addressing the Senate impeachment trial clause is Nixon v. United States (1993) — which has nothing to do with Richard Nixon. When Walter L. Nixon, a federal judge in Mississippi, was impeached in 1989 and removed from office, he sued the United States, the secretary of state and the Administrative Office of the U.S. Courts, arguing that the Senate had not conducted a proper “trial” as required by the Constitution.

The court, with Chief Justice William Rehnquist writing for the majority, ruled against him. It concluded that how the Senate conducted impeachment trials was essentially a political question, because the Constitution gives that body the “sole power” to try impeached officials. That meant the dispute was, in the legal jargon, “nonjusticiable.” But other justices — namely Byron White, Harry Blackmun and David Souter — argued that, while Nixon deserved to lose, it was possible that one day the Senate would conduct such an unfair impeachment trial that the courts would be obliged to hear a case if an aggrieved party sought a judicial remedy. That’s precisely the situation we may face today.

In the events that led to his impeachment, Nixon was convicted of crimes (two counts of making false statements to a grand jury, related to an attempt to interfere in the investigation of a friend’s son) and sentenced to prison. But he refused to resign and continued to collect his judicial salary behind bars. The House therefore impeached Nixon and sent articles to the Senate to conduct a trial.
Under rules established by the Senate to handle impeachments, Nixon’s case was referred to a committee of senators to “receive evidence and take testimony.” After four days of hearings and 10 witnesses, the committee presented the full Senate with a transcript of its proceedings and a report. The House managers and Nixon submitted briefs to the full Senate; after oral arguments from the Senate floor, a personal appeal from Nixon and questions from several senators, the full Senate voted to remove him from office. He appealed, claiming that the Senate had not really “tried” him: Delegating so much work to a small committee was a shirking of its duty, he argued, and not what the founders had intended.

[former9thward]

9. A good financial move on his part.

He was convicted in 1986 and refused to resign. So he kept his judicial salary for 7 years until the SC handed down their decision in 1993.

[TwilightZone]

7. The Supreme Court has no jurisdiction in impeachment.

Congress has sole authority regarding impeachment. An impeachment cannot be appealed to the SC.

https://www.lawfareblog.com/supreme-court-has-no-role-impeachment

[Baked Potato]

8. Not a legal expert, but to offer opinion,

if impeachment was solely for removal from office, their position would be a little shaky. But, to expose his actions and bar him from office, that should happen. I want him prohibited from holding office so he can’t collect cash for his campaign and possibly run again.

Impeachment seems to be the only way citizens can make sure a lawbreaker can’t get back in office to stave off indictments, trials and punishment.

[paleotn]

10. Even if by some strange circumstance, SCOTUS does get involved...

I'm not convinced the 3 feel they owe Donnie anything. That's the thing about lifetime appointments.

[StarfishSaver]

12. The Court won't take such a case

I do, however, believe the Court could eventually rule on this issue - but only in connection with another case or controversy and only if Trump were convicted and disqualified and the validity of the disqualification were later challenged after an attempt was made to enforce it.

For example, suppose Trump were to be convicted and disqualified from holding future federal office and then try to run for president again. He would have to meet numerous state-specific filing requirements to demonstrate he meets the constitutional requirements to run for president. In such case, numerous states would likely refuse to put him on the ballot because he'd been disqualified in the impeachment process. Trump could sue, and as part of that suit allege that the disqualification was invalid because the Senate did not have the Constitutional jurisdiction to disqualify him.

The argument would be a simple one - Congress' impeachment of power extends only to one class of person: sitting presidents. Anyone outside of that class of people is outside of that scope of power and Congress has no right to impeach, convict and disqualify them. Doing so has no more legal weight then trying to impeach a governor or a mayor or a Member of Congress or the First Lady. I don't agree with that argument, btw. I think the Constitution clearly gives the Senate power to try and convict a former president, particularly one who was impeached while still in office. But I also believe that if the impeached person is outside of the Senate's jurisdiction, the impeachment and disqualification can be ruled unconstitutional and invalid.

In such case, I believe the Supreme Court could rule on the constitutionality of the process that disqualified him.

The question would be narrowly limited to whether the Senate had jurisdiction to try, convict and disqualify a former president. That would not be any interference in the impeachment process because this would be a narrow constitutional question that the Court could pass on - whether the Constitution's grant of impeachment jurisdiction included jurisdiction over a former president. This wouldn't be a question of whether the Senate action was appropriate. It would be a question of whether they had the power to do it at all. If former presidents don't fall within the Senate's jurisdiction, the court could rule the Senate had no right to impose a penalty.

That's just one example of an instance in which the court could rule on this. But it would have to be further down the line and only after the Senate's action had some some real and direct impact. I don't see how it could be done prior to that.

[kentuck]

16. Interesting.

I could see Trump doing something like that.

He loves the courts.

[StarfishSaver]

17. Yes, he would. And yes, he does.

[Mr.Bill]

15. Well, Trump being Trump,

He will probably appeal to them anyway if convicted then accuse them of treason if they won't hear the case. Then the riot can come to their building.

Remember the Capitol riot happened because Pence refused to do something unconstitutional.

[lettucebe]

18. No, they cannot ask the Supreme Court for anything

The Supreme Court gets cases sent by lower courts, or in some situations directly, but you don't get to just send them a question in advance. They will rule against him. There is simply no question that he can and will stand trial in the Senate for his impeachment charge -- doesn't matter that he's now out of office. Remedy is disallowing him to ever run for office again, which in this case makes sense. He's a boil on the butt of democracy and needs to be lanced.

Someone already pointed out, if this were not the case there's nothing to stop any and all presidents from committing all the crimes they please right before leaving office.

[keithbvadu2]

19. 'I put several of you SC justices in office. You owe me.'