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Response to Gothmog (Original post)

Wed Jun 12, 2019, 02:14 PM

21. Dershowitz's argument is pure bullshit

And the deceptive smoke and mirrors "justification" he used proves he knows that.

The Professor Dershowitz of days gone by would have flunked a law student who used such raggedy reasoning on one of his law school exams. I miss that guy.

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.
https://www.democraticunderground.com/?com=view_post&forum=1002&pid=12163296

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Arrow 54 replies Author Time Post
Gothmog Jun 12 OP
DUgosh Jun 12 #1
CrispyQ Jun 12 #9
uponit7771 Jun 12 #18
DownriverDem Jun 12 #37
malaise Jun 12 #45
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Stargazer09 Jun 12 #51
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hlthe2b Jun 12 #3
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Leghorn21 Jun 12 #10
Ligyron Jun 12 #11
The Velveteen Ocelot Jun 12 #12
StarfishSaver Jun 12 #26
The Velveteen Ocelot Jun 12 #42
malaise Jun 12 #46
Gothmog Jun 12 #49
The Velveteen Ocelot Jun 12 #54
sop Jun 12 #13
think4yourself Jun 12 #14
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peggysue2 Jun 12 #16
COLGATE4 Jun 12 #17
The Velveteen Ocelot Jun 12 #32
NewJeffCT Jun 12 #19
Gothmog Jun 12 #24
struggle4progress Jun 12 #20
LineReply Dershowitz's argument is pure bullshit
StarfishSaver Jun 12 #21
Gothmog Jun 12 #23
StarfishSaver Jun 12 #25
Beausoleil Jun 12 #31
StarfishSaver Jun 12 #33
PRETZEL Jun 12 #35
StarfishSaver Jun 12 #40
The Velveteen Ocelot Jun 12 #34
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Honeycombe8 Jun 12 #36
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