The Final Responsibility of Congress
We are used to confiding (or to imagining we confide) all constitutional questions to the courts. I shall later maintain that “judicial review” has no part to play in impeachment proceedings. For now, it should be briefly pointed out that, if I am right, then Congress, in acting on the matters just discussed and on those to be discussed in the next chapter, rests under the very heavy responsibility of determining finally some of the weightiest of constitutional questions, as well as a great many important and difficult questions of procedure. For this purpose, and in this context, we have to divest ourselves of the common misconception that constitutionality is discussable or determinable only in the courts, and that anything is constitutional which a court cannot or will not overturn. We ought to understand, as most senators and congressmen understand, that Congress’s responsibility to preserve the forms and the precepts of the Constitution is greater, rather than less, when the judicial forum is unavailable, as it sometimes must be.
Black, Charles L., Jr. & Bobbitt, Philip, Impeachment: A Handbook, New Edition (pp. 22-23). Yale University Press. Kindle Edition.
The Place of Lawyers
Impeachment is a matter of law, foursquare and all the way, and lawyers must run the process, as surely as doctors must run the operating room. The Congress can get plenty of lawyers, and the money to pay them with. The position of the president is more problematic. Some may think that it is wrong for public funds to go to the financing of the defense of an impeached president, or of one threatened with impeachment. Yet, if we turn the question around and look at it from another side, do we want the outcome of this most important of proceedings ever to be affected by the president’s lack of adequate legal help? We must understand, also, that the participating lawyers are advocates, whose job is to take a side and present it with skill and vigor. Our entire legal system bets a great deal on the proposition that this “adversary” system is the least imperfect way to develop all the truth; the corollary is that we must look on partisanship not as an evil but as a part of the system’s working. No one, including the president, can be treated lawfully if he is not adequately represented by counsel committed to him. Intemperate public attacks on lawyers, for the positions they take as advocates, are really attacks on our adversary system of justice. Such attacks are particularly surprising when mounted by other lawyers while legal proceedings are pending.
Id., p. 23.
