resident Trump has suggested periodically that the Supreme Court would intervene to block a hypothetical impeachment and trial since (he argues) he has not committed a high crime or misdemeanor. Of course, Trump does not just make this stuff up. He has actual lawyers advising him who tell him these things—among them, Rudy Giuliani, who recently tweeted that the “Supreme Court could overrule an unconstitutional impeachment.” Giuliani, in turn, was amplifying an argument that Alan Dershowitz has been making for a while, most recently at The Hill. But Dershowitz is wrong.
Dershowitz has idiosyncratic views on impeachment in a number of ways. He also takes a very restrictive view of what the constitutional phrase “high crimes and misdemeanors” means and so regards a great deal of potential presidential misconduct as beyond the reach of the congressional impeachment power. This is the kind of argument that one would expect a defense lawyer for a target of an impeachment inquiry to make, but it is not a mainstream view—for good reason. I’ve written about that issue elsewhere. Let’s set that problem aside.
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