Tuesday night, famed attorney Alan Dershowitz met President Trump at Trump’s annual Christmas Eve dinner in the ballroom at Trump’s Mar-a-Lago estate, fueling more speculation that he may join Trump’s legal team, which is dealing with the impeachment proceedings against the president. As The Daily Mail reported, “Trump got up from his table, where he was seated next to first lady Melania Trump, to walk over and talk to Dershowitz after reports his legal team has discussed bringing Dershowitz on board to help with the president’s impeachment trial in the Senate.
When The Daily Mail queried him about his appearance, Dershowitz responded, “I was a guest of friends of mine. Not part of the Trump Christmas party. The president came over to say hello to me and my wife. We wished each other happy holidays.”
In May, Dershowitz contributed an opinion piece at The Hill, in which he defended Trump’s comments in which he stated that if he were indeed impeached by the House, he might “head to the Supreme Court.” Dershowitz wrote:
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.”
It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors. Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land.
Dershowitz noted, “No one should criticize President Trump for raising the possibility of Supreme Court review, especially following Bush v. Gore, the case that ended the 2000 election. Many of the same academics ridiculed the notion that the justices would enter the political thicket of vote-counting. But they did and, in the process, weakened the “political question” doctrine.”