Supreme Court ruling pulls rug out from under article of impeachment

BY ALAN DERSHOWITZ, OPINION CONTRIBUTOR —  12/16/19 12:00 PM EST

THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL 

The decision by the Supreme Court to review the lower court rulings involving congressional and prosecution subpoenas directed toward President Trump undercuts the second article of impeachment that passed the House Judiciary Committee along party lines last week.

That second article of impeachment charges President Trump with obstruction of Congress for refusing to comply with the congressional subpoenas in the absence of a final court order. In so charging him, the House Judiciary Committee has arrogated to itself the power to decide the validity of subpoenas, and the power to determine whether claims of executive privilege must be recognized, both authorities that properly belong with the judicial branch of our government, not the legislative branch. The House of Representatives will do likewise, when it votes to approve the articles, as the chamber is expected to do so Wednesday.

President Trump has asserted that the executive branch, of which he is the head, need not comply with congressional subpoenas requiring the production of privileged executive material, unless there is a final court order compelling such production. He has argued, appropriately, that the judicial branch is the ultimate arbiter of conflicts between the legislative and executive branches. Therefore, the Supreme Court decision to review these three cases, in which lower courts ruled against President Trump, provides support for his constitutional arguments in the investigation.

continue