As I discussed yesterday in the Washington Post, the White House defense in the Senate impeachment trial is built again the dubious constitutional argument that a president cannot be impeached without an alleged criminal case. That argument will be presented by Harvard Law Professor Alan Dershowitz but it is based, in my view, on a flawed reading of both impeachment and specifically the trial if Andrew Johnson. It was a mistake that will make it more difficult for Republican senators to sign on to a defense tied so closely to an untenable constitutional argument. Today, more Republican senators, including Sen. Lindsay Graham, came forward to say that they categorically reject the interpretation. Even more concerning was the response of President Donald Trump when asked if abuse of power can be an impeachable offense. He responded that “it depends.” That is actually the correct answer but it is not the position being taken by the White House on the Senate floor.
While the New York Times described the answer as “equivocal,” it is an accurate reduction of the law. It does depend on the underlying allegation of abuse of power. I have expressed my reservations about the allegations in this case and whether it warrants the removal of a president. However, the most important aspect of the President’s comment is that such an abuse can be impeachable. It really does depend.
That is precisely the nuance that is missing in the White House.
During Trump’s impeachment hearing, I argued against four articles of impeachment being touted by the the leadership of the House of Representatives, including bribery. The problem is that the allegations against Trump fall well outside of definitions and case law of these crimes. While such definitions are not controlling, Congress has always looked to criminal cases on the meaning of such offenses. The reason is simple. The criminal code offers an objective and neutral source for defining acts free from political manipulation.
Not only do such cases put a president on notice of the range of impermissible conduct, but it shows the public that the president is being held to a clearly defined and understood standard. Ultimately, I was relieved when the House Committee rejected those four articles and went forward with the two that I testified would be legitimate, if proven.
However, this absolutist argument presents the inverse problem of adopting too narrow of an impeachment standard. That is a view clearly shared by a majority if not a super-majority of senators. The question is why build a defense around a flawed theory that it is so widely rejected, including by the Senate itself.
Ideally, abuse of power articles go forward with actual alleged criminal conduct but it is not required. To put it simply, abuse of power can be an impeachable offense but “it depends.”
Dershowitz gone senile?
I don’t think that Professor Dershowitz was arguing that “a president cannot be impeached without an alleged criminal case,” as stated in this article. Rather, Professor Dershowitz has already said that “the framers intended for impeachable conduct only to be criminal-like conduct or conduct that is prohibited by the criminal law.” That is a more nuanced argument and suggests that when all is said and done, impeachable conduct requires a wrong to have been committed that is injurious to the public. None of the allegations presented by the House describe any wrong “injurious to the public.”
Of course, such a common sense analysis is lost on such legal commentators as Professor Laurence Tribe, who recently Tweeted mindlessly that “what’s charged in Article I is as “criminal-like” as anything imaginable. Bribery, extortion, illegal impoundment, campaign finance violations, election cheating, going after political opponents. Mob-like too!”
JF:
You think Tribe drinks or is it just the brain defect manifesting itself?
yesterday on NPR tribe said “all the president’s lawyes are white men”
a caller defied him to explain how that was relevant and he basically apologized, said it was an ‘Off the cuff” remark and was not relevant
He’s a jerk!
It’s difficult to say why Professor Tribe says the outlandish things he does. However, to his credit, he has not yet accused the President and his administration of conspiring to sap and impurify his “precious bodily fluids,” at least not publicly.
“Scaramucci: Here’s why Trump won’t get re-elected ”
https://www.aol.com/article/news/2020/01/23/scaramucci-heres-why-trump-wont-get-re-elected/23907512/
Excerpt:
In comparison, he described Trump as “unstable and so erratic.”
“He’s abnormal — he acts abnormal, he says abnormal things, he tweets abnormal things,” Scaramucci said. “He bullies private citizens. He has a bellicosity of rhetoric that’s shocking for an American president and so, what’s happened is the bell curve of normalcy has shifted and the delegates here have accepted some hypernormalisation.”
“It’s like if you have a crazy uncle,” he added. “He’s acting crazy. You’re at the dinner table and you’re trying to ignore some of the things he’s saying and hope that the spasm of crazy goes away. But it’s not going away and that’s the big issue.”
Trump’s current approval rating sits at 42%. It could be higher, Scaramucci said, but the problem is that there is so much disdain for him among Americans.
“Trump is a demagogue,” he said. “And demagoguery, if you really study it, it has a life expectancy of about four to five years. So we’re in the four-and-a-half year period of this demagoguery and when Joe McCarthy’s demagoguery ended, there were many great political leaders who said, ‘My god, why didn’t I speak up? Why didn’t I recognize the idiocy of this? Why didn’t I recognize what this person was doing to the great institutions of our country?’”
First and foremost – the biggest error regarding impeachment is being on the wrong side of Hume’s Guillotine.
The constitution leaves the house free to decide what the meaning of the constitution’s text on impeachable offenses is. To the extent that the house is constrained in the definituion of an impeachable offense it is by the Senate and the voters.
The constitution similarly leaves the Senate completely free to decide what constitutes an impeachable offense – answerable only to voters.
There is no review, no check nothing to tie what IS impeachable with what OUGHT to be impeachable aside from that voters.
What Turley and myriads of competing voices argue is What OUGHT to be impeachable.
What IS impeachable is whatever the house or senate decide and voters live with.
Arguably that OUGHT NOT be how things are but it IS.
I absolutely agree that every impeachable offense need not require a crime.
But while the absence of a crime SHOULD not be a bar, it SHOULD cause us to step back to look carefully to be really sure this is necescary.
Contra democrats – Trump is NOT some immediate threat.
There was no illegal Trump machinations in the 2016 election, There was no consequential outside interference and near the core of this impeachment is the only remaining vector of outside interference that has not been thoughly plumbed – that of democrats and the Ukraine. That will likely prove to be as ineffectual as that of the Russians, and democratic involvement in Ukraines efforts may prove small.
But we have thoroughly probed the claim of Trump/Russia collusion – we have done so far beyond what the rule of law would ever have permitted, and we have plumbed claims that NEVER made any logical sense. Yet somehow merely asking that claims that are NOT based on gossip and rumors from political sources is impeachable ?
Democrats are constitutionally free to argue that anything is impeachable.
They are not entitled to anyone’s agreement.