The Johnson Fallacy: Why Dershowitz Is Wrong About The Prevailing Argument In the Johnson Trial

Below is my column in The Hill newspaper on the Andrew Johnson impeachment trial and its reliance by Harvard Professor Alan Dershowitz to support the argument that impeachable offenses must be based on criminal conduct.

Here is the column:

Oliver Wendell Holmes Jr. once observed that “lawyers spend a great deal of their time shoveling smoke.” If that is the case, the briefs filed by both sides in the impeachment of President Trump may be enough to give the nation emphysema. The briefs are filled with dubious factual, historical, and constitutional claims that seem directed more at the public than at the Senate. For the most part, such claims will dissipate with the fog of advocacy. However, one argument could have a more damaging impact.

The White House briefs appear structured around the claim, to be argued by Harvard law professor emeritus Alan Dershowitz, that the Constitution is literal in when it refers to “high crimes and misdemeanors” as criminal violations. So Dershowitz maintains, without an article of impeachment based on an actual crime, then there is no legitimate impeachment. For my testimony before Congress during the impeachment hearings of both President Clinton and Trump, I took the opposing view that a president can be impeached for a noncriminal act. This view is based on the history of impeachment in both England and the United States, where articles commonly included noncriminal acts. In England, impeachments were based on a wide variety of acts, including “mischiefs done to our Lord,” “pernicious advice to the crown” and “malversations and neglects.”

In the United States, the Framers adopted the English standard of “high crimes and misdemeanors,” but they warranted a higher standard so that a president would not be forced to serve “at the pleasure of the Senate.” Yet the Framers referred to nonpublic offenses, including violation of the public trust, as falling within the scope of the standard in the Constitution. Indeed, the majority of impeachments in the United States have contained noncriminal allegations. What is different in this case is that it is the first time a president has been impeached solely on noncriminal grounds. As I said in my testimony, that makes this a much more difficult impeachment, particularly on the rushed and incomplete record created by the House.

Notably, Dershowitz and I both believe that the case most relevant to the Trump impeachment is the 1868 impeachment of President Johnson, but for very different reasons. I testified that both impeachments were narrow and propelled by deep hatred for each president. Moreover, the Johnson impeachment was largely based on a trap door crime created specifically for him. Congress expected Johnson to fire his war secretary because of political differences, and lawmakers made it not just a crime but a “high misdemeanor” to do so. It was a manufactured crime for their malicious political purpose. The House has shown the same blind rage in the Trump impeachment, and its second article alleging obstruction of Congress by the president is as manufactured as the Johnson impeachment articles.

The House created arguably the shortest period of investigation in history for a presidential impeachment, and then declared that Trump had to turn over evidence and release witnesses in that brief time rather than litigate the underlying issues in the courts. President Nixon and Clinton both were able to litigate such claims all the way to the Supreme Court before facing impeachment in Congress. But Dershowitz is now relying on an argument made by Supreme Court Justice Benjamin Curtis in defense of Johnson.

Dershowitz claimed that Curtis “argued successfully to the Senate that criminal like conduct is required. That argument prevailed.” But I believe Dershowitz is mistaken in his interpretation of the argument, along with the basis for the acquittal of Johnson. First and foremost, Curtis primarily addressed the violation of the Tenure in Office Act, which no one denied as being statutorily defined as a criminal “high misdemeanor.” Indeed, it was clearly defined and Johnson himself knew he was committing it. He had rightfully believed that the criminal provision was unconstitutional.

It was that criminal violation which was the subject of all 11 articles of impeachment against Johnson, and most of the argument of Curtis. He declared, “As to those articles there is some law unquestionably, the very gist of that charge being that he broke a law.” It was only at the end of his argument that Curtis turned to the tenth article, which indeed drew the lowest vote in the House. It was an absurd collection of noncriminal acts, which Curtis referred to as “extraordinary peculiarities” such as bringing Congress “into disgrace, ridicule, hatred, contempt, and reproach,” as well as making “with a loud voice certain intemperate, inflammatory, and scandalous harangues.” Curtis rightfully ridiculed the articles as evidence that the House “erected itself into a school of manners” in the process.

Johnson was saved by seven Senate Republicans who switched sides to reject his illegitimate impeachment. It was not due to the absence of a criminal allegation but due to the manufactured quality of the charges. The underlying conduct did not warrant conviction as a high crime and misdemeanor. While Curtis argued that the language of the Constitution mirrored criminal lexicon, his statement that it “designated impeachable offenses as offenses” was meant to argue that the Senate should consider itself a court rather than some heated political forum on impeachment.

The most powerful argument made by Curtis concerned his attack on the criminal allegation itself as a crime created solely to impeach Johnson. That was the position that had “prevailed” rather than an argument that impeachment cannot include any noncriminal allegations. Not only do I believe the interpretation of the Johnson trial is fundamentally mistaken, but it is a mistake to ask senators to base their votes on such a widely rejected theory. Impeachments can be based on noncriminal acts, but that does not mean the noncriminal acts in this case are impeachable.

Furthermore, Trump should not wish to prevail on such a flawed theory, leaving history to debate whether he was acquitted on the weight of the evidence or on an erroneous interpretation. There are ample reasons to vote against this impeachment. The witnesses who testified along with me in the House impeachment inquiry described the case against Trump as an “attempt to abuse power.” It is already difficult enough to bring a purely noncriminal impeachment, but to do so on an attempt at abuse of power raises serious concerns over the subjectivity and fluidity of such claims.

So that is the true meaning of the Johnson trial. It was an impeachment formed in rage and devoid of all reason. Indeed, it was the fourth such attempt to impeach Johnson and his leading opponent, Representative Thaddeus Stevens, confronted reluctant House members by demanding, “What good did your moderation do you? If you do not kill the beast, it will kill you.” They responded by impeaching Johnson on trumped up charges. Ultimately, what began as a disgrace for the House turned into one of the finest moments for the Senate when those seven Republicans upheld their oaths and decided to cross the aisle and acquit a president they despised.

The Johnson impeachment showed us that even criminal acts can be rejected as falling short of the standard of the Constitution. Before his trial, Johnson declared, “Let them impeach and be damned.” He was right. Had the Senate convicted him, we would have invited endless contrived impeachments. That is the argument that “prevailed” in the Johnson case.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.

115 thoughts on “The Johnson Fallacy: Why Dershowitz Is Wrong About The Prevailing Argument In the Johnson Trial”

  1. Valid point, significant difference, and no doubt Dershowitz is wrong. I don’t completely agree with this statement though:

    “Yet the Framers referred to nonpublic offenses, including violation of the public trust, as falling within the scope of the standard in the Constitution.”

    I would like to know where this occurred; where precisely, the Framers referred to violations of the public trust. We are, I assume, referring to Hamilton here? And then I would like Turley to expound upon that within context of a) that which actually appears in the Constitution and b) the scope of the presidency.

    It’s interesting, certainly, even necessary, to seek historical insight, or origins, but we must also recognize that context does not perfectly correlate. In England, the King, to the best of my knowledge, was not “impeachable”: I am uncertain, were his Lords? Or are we speaking here specifically of appointed subalterns, as “impeachable”? Am I wrong, was impeachment perhaps the remedy applied to nobility? For certainly “law” as applied to ordinary citizen was not applicable. To put this another way, we are speaking of monarchy here, not representative government. The impeachable U.S. president, as supreme leader, would be the unimpeachable King’s counterpart. I believe that context is relevant, as Turley himself obviously agrees.

    Still, what we are speaking of here is, in fact, “malversation.” It is not that a crime was committed or even that the pubic trust was violated, rather that some politicos did not like the scope of this conversation that occurred between heads of state. Which incidentally, none would ordinarily be privy to, since such conversations are classified.

    1. betuadollar, I think that I have studied enough of the history to give a good, but hardly definitive, answer.

      Neither King nor Nobles were or are impeachable. Nor were or are the members of the House of Commons. Impeachment was and is used for the ministers of the government when they are perceived to have done their governmental services very badly. Then the House of Lords rules whether or not to convict.

      The American system basically copies the British one, except that “maladministration” is left out of the specific list of impeachable offenses.

  2. Not likely, but you never know, Benson. Maybe all 100 will vote to acquit Trump, thus preserving the republic.

  3. I am with Turley on this one. Wiki says:

    The charge of high crimes and misdemeanors covers allegations of misconduct by officials. Offenses by officials also include ordinary crimes, but perhaps with different standards of proof and punishment than for non-officials, on the grounds that more is expected of officials by their oaths of office. Indeed the offense may not even be a breach of criminal statute. See Harvard Law Review “The majority view is that a president can legally be impeached for ‘intentional, evil deeds’ that ‘drastically subvert the Constitution and involve an unforgivable abuse of the presidency’ — even if those deeds didn’t violate any criminal laws.”[1]
    Contents

    “Since 1386, the English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, helping “suppress petitions to the King to call a Parliament,” etc.[8]”

    But the article also says, “”High,” in the legal and common parlance of the 17th and 18th centuries of “high crimes,” is activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons.[5] A high crime is one that can be done only by someone in a unique position of authority, which is political in character, who does things to circumvent justice. The phrase “high crimes and misdemeanors,” used together, was a common phrase when the U.S. Constitution was written and did not require any stringent or difficult criteria for determining guilt but meant the opposite. The phrase was historically used to cover a very broad range of crimes.

    Still, I think there is conduct which violates no law which should be impeachable. For example. sticking cigars into body orifices of interns. . .

    Squeeky Fromm
    Girl Reporter

    1. A “crime” is an undesirable act against which a code has been written and recorded.

      A “high crime” is a “crime of high office” and is a crime that cannot be perpetrated by holders of low office or low status and it is a crime that cannot be perpetrated by the general population.

      For impeachment, there must be an actual codified “crime,” such as treason, bribery and “others,” and it must be possible only by holders of high office, not holders of low office or the general population.

    2. Wikipedia is not a reliable source of information, and certainly not for legal analysis. Wikipedia is well known for including biased commentary and a left-leaning point of view.

  4. One would have hoped that all the Senators would vote to preserve the Republic. Doesn’t appear likely.

    1. If they were at all interested in preserving the Republic, seven Supreme Court justices would in 1973 have been stripped of their citizenship and exiled. And they’d have tossed Sarah Weddington out for good measure.

    2. Did you say, “Republic?”

      Communists (liberals, progressives, socialists, democrats) are centrally-planned and means-of-production-controlled, collectivist, redistributionist dictators and direct and mortal enemies of a “republic” which has a thesis of freedom through self-reliance coordinated with a severely limited and restricted, infinitesimal government which exists merely to facilitate the maximal freedom of individuals.

      A republic is a form of democracy that restricts the vote and in which power resides in

      “…a body of citizens entitled to vote…”
      _______________________________

      Ben Franklin did not say democracy, he said republic.

      We gave you “…a republic, if you can keep it.”

      – Ben Franklin

      To Franklin, it was dubious as to whether Americans entitled to vote could “keep” their republic against those who were not – the makers against the takers.
      _________________________________________________________________________________________________

      Merriam Webster

      republic noun

      re·​pub·​lic | \ ri-ˈpə-blik
      \
      Definition of republic

      b(1) : a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law

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