Constitutional scholar Alan Dershowitz has noted in an opinion piece at The Hill that a recent announcement by the Supreme Court knocks the legs out from under one of the House Democrats’ two articles of impeachment. The high court said it plans to review the lower court rulings regarding the validity of congressional and prosecution subpoenas directed toward Donald Trump.
The president’s refusal to comply with these congressional subpoenas is the linchpin in the House’s obstruction of Congress article. In charging him “in the absence of a final court order,” writes Dershowitz, “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.”
But even if the House chooses to go forward with only its second article — abuse of power — they still face significant problems in the event the Senate tries the president. Consider the foundation of this second article, according to the House leadership: Donald Trump, they maintain, abused his power by asking a foreign leader to investigate potential wrongdoing by one of the Democratic contenders for his job, Joe Biden.
If that is an impeachable offense, then how can five Democratic presidential candidates who also happen to be U.S. senators — Elizabeth Warren, Bernie Sanders, Cory Booker, Amy Klobuchar, and Michael Bennet — sit in judgment of Trump, who is himself a candidate? Isn’t that repeating five times over the “crime” supposedly committed by Trump?
The only fair way of handling this potential breach is for the five senators to recuse themselves. Such is the price a party pays when it elects to impeach a president who is in the process of running for his second term.