(Editor’s note: The House has voted for the impeachment of President Trump, but this article explains that their legal position on obstruction of Congress is under review by the Supreme Court.)

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.

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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.

The cases that are being reviewed are not identical to the challenged subpoenas that form the basis for the second article of impeachment. One involves authority of the New York district attorney to subpoena the financial records of a sitting president, as part of any potential criminal investigation. The others involve authority of legislative committees to subpoena records as part of any ongoing congressional investigations.

But they are close enough. Even if the high court were eventually to rule against the claims by President Trump, the fact that the justices decided to hear them, in effect, supports his constitutional contention that he had the right to challenge congressional subpoenas in court, or to demand that those issuing the subpoenas seek to enforce them through court.

It would be a smart way out for those Democrats. More important, it would be the right thing for them to do. It would be smart and right because, as matters now stand, the entire process smacks of partisanship, with little concern for the precedential impact which these articles could have on future impeachments. If a few more Democrats voted in a way that would demonstrate greater nuanced recognition that, at the least, the second article of impeachment represents an overreach based on current law, it would lend an aura of some nonpartisan legitimacy to the proceedings.

The first article goes too far in authorizing impeachment based on the vague criterion of abuse of power. But it is the second article that truly endangers our system of checks and balances and the important role of the courts as the umpires between the legislative and executive branches under the Constitution. It would serve the national interest for thoughtful and independent minded Democrats to join Republicans in voting against the second article of impeachment, even if they wrongly vote for the first.

(Excerpt from The Hill. Article by Alan Dershowitz.)