The White House Hail Mary: Dershowitz To Argue That Trump Impeachment Is Unconstitutional For Lack Of A Crime

Today we are likely to hear the constitutional arguments in defense of President Donald Trump, including the highly controversial theory of Harvard Professor Alan Dershowitz that an impeachment must be based on an alleged crime. I have previously discussed my disagreement with Dershowitz’s use of the trial of Andrew Johnson to support this claim.

Below is a column that ran in the BBC on my long-standing opposition to that theory.

Forty-five years ago, Cowboys quarterback Roger Staubach said: “I closed my eyes and said a Hail Mary.” The so-called Hail Mary pass is now a mainstay of American football where a quarterback, in the final seconds of a close game, throws the ball into the end zone on a hope and a prayer.

As the NFL play-offs wrap up and the Senate impeachment trial proceeds, Staubach’s strategy came to mind. The White House has decided to frame its defence around a constitutional Hail Mary pass in arguing that the impeachment itself is invalid because articles of impeachment must be based on alleged criminal acts. The “quarterback” in this play is Harvard Professor Alan Dershowitz who believes that the Senate should simply dismiss the case as constitutionally invalid.

Hail Mary passes make for great football, but perfectly lousy impeachment trials. The problem is that this pass is not going into the constitutional end-zone but well beyond the stadium.

The argument is based on a literal reading of the standard “high crimes and misdemeanors.” Those are criminal terms, to be sure, but they were never viewed as such in England, where the standard was first forged, nor in the United States in past judicial and presidential impeachments.

American impeachments stand on English feet and English impeachments often stood on non-criminal allegations. Indeed in 1604, John Thornborough, Bishop of Bristol, was impeached for writing a book on the controversial union with Scotland. Michael de la Pole, Earl of Suffolk, was impeached in 1386 for such offences as appointing incompetent officers and “advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of the laws”.

Others impeachments were based on “giving pernicious advice to the Crown” and “malversations and neglects in office; for encouraging pirates; for official oppression, extortions, and deceits; and especially for putting good magistrates out of office, and advancing bad”.

The English standard was so vague and broad that the Framers [of the US Constitution] were uncomfortable with replicating that process in the United States. Indeed, when the then-ongoing impeachment trial of Governor General Warren Hastings of the East India Company was raised by a Framer, James Madison immediately objected that the standard in the US should not include terms like “maladministration” that would effectively leave presidents as serving “at the pleasure of the Senate”.

The result was the adoption of the English standard of “high crimes and misdemeanors” with a narrower scope of individuals covered (judicial and executive officers). However, it was never limited to criminal acts.

Limiting impeachment to the criminal code would have been a remarkable abridgment since there were few crimes recognised at that time. More importantly, the Framers discussed the need to deal with violations of public trust and other non-criminal violations perpetrated by a president. They wanted a narrower standard, but not a purely criminal-based standard. If so, they could have simply stated it – and made the criminal code the scope of impeachment.

Finally, such a standard would create a nightmare where a president could engage in outrageous acts and remain unimpeachable – by staying just short of indictable. It is not surprising therefore that virtually every impeachment in US history has contained non-criminal allegations including the two presidential impeachments.

My disagreement with this argument puts me in a rather ironic position. 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 offences.

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.

Now I have the inverse concern with the White House argument. By framing the defence around this unwarranted interpretation, the White House is putting Republican senators in a terrible bind. Many will not want to catch this Hail Mary pass and simply pray that no president in the future will ruin the Republic with unimpeachable but non-criminal acts.

Jonathan Turley is professor of constitutional law at George Washington University He also testified with other constitutional experts in both the Clinton and Trump impeachment hearings.

28 thoughts on “The White House Hail Mary: Dershowitz To Argue That Trump Impeachment Is Unconstitutional For Lack Of A Crime”

  1. Roger also ran the wrong way with the ball when he was playing for Navy! Hopefully that story doesn’t apply here. 😊

    Also, the classic painting of Old Testament Samuel, praying as a child. Copies hang in every Southern Baptist children’s Sunday School class.

  2. “High crimes and misdemeanors”

    The authors of the Constitution understood the plain meaning of this term. They were smarter than most lawyers and politicians today.

  3. in some sense, the standard for impeachment on the house side is flimsy as that of a prosecutor’s indictment.

    on the Senate side, i agree with Turley in theory that a non-criminal abuse of power COULD be sufficient to impeach and approved by Senate.

    I just don’t see any such abuse here.

    The withholding of aid had any number of legitimate purposes. Of course John Bolton the Democrat war mongers and their counterparts in the Republican party are chary of any hesitation to provoke Russia, on any pretense, so
    they say it was bad. Well I disagree. End of story. Acquit and be done.

    Here’s a story on the Russian nuclear missile threat. think this over. It’s a lot more deadly than any virus.

    “The existing system of international relations and arms control treaties is slowly, but steadily crumbling. The Intermediate-Range Nuclear Forces Treaty is dead, with both Washington and Moscow publicly developing previously banned short-to-medium range missiles. The New START (Strategic Arms Reduction Treaty) is also moving towards its end in 2021, and it is likely that New START will not be renewed. The United States, China and Russia are developing hypersonic weapons, which are not limited by any existing arms control treaties. The major powers are preparing for a possible global conflict. The dismantlement of the system of international treaties is another factor increasing military tensions around the world.

    Russia is actively working towards restoring lost Soviet capabilities and developing new strategic deterrence projects. One of them is the Dead Hand, also known as the Perimeter. This Cold War-era automatic nuclear weapons-control system is one of the most protected secrets and most important deterrence tools of the USSR and Russia.

    The Dead Hand is the last line of deterrence in the event of a crippling nuclear strike. It entered into service in 1985, shortly after a major escalation in 1983, which had almost led to war between the US and the Soviet Union. It has been likened to a real-life doomsday machine. Upon activation and determination of an ongoing nuclear strike, the system sends out command missiles with special warheads that pass encrypted launch commands to all nuclear weapon carriers of the sea, air and ground components of the Russian Strategic Nuclear Forces.

    In peacetime conditions, the system slumbers, waiting for a turn-on command or an alarm signal from the missile attack early-warning system. It has a human “firewall,” for example, an on-duty officer who would switch it into the fully automated mode. Therefore, there is no risk of an accidental or unauthorized missile launch. Having received a command or signal about missiles being launched from the territory of other countries, this Dead Hand goes into an automated combat mode. Through a wide-scale sensor network, it monitors signs of an incoming nuclear strike.

    The decision to launch command missiles is made by an autonomous control and command system – a complex pseudo-artificial intelligence system. The system receives and analyzes a variety of information about seismic activity, radiation, atmospheric pressure, and the intensity of chatter on military radio frequencies. It monitors telemetry from the observation posts of the strategic missile force and data from early warning systems.

    Before launching, the system reportedly checks for four conditions:

    Once the system is activated it first determines if a nuclear explosion has taken place on Russian territory;
    If this is determined, the system will then check the communication link with the General Staff operation center;
    If a connection is established the system will After some time – from 15 minutes to 1 hour – passing without any further signs of an attack, it will assume that a number of the officials with the authority to give the order to strike are still alive and the system will shut down;
    If the General Staff operation center does not respond, the system sends a request to Kazbek, the automatic system for command and control of the Strategic Nuclear Forces. If there is no response there either, the system automatically transfers launch authority to the command bunker personnel and launches the retaliatory strike.
    All of the channels through which the Dead Hand receives its information are backed up multiple times, to remove the possibility of false information being fed to it.

    According to openly available data, the Dead Hand is an integral part of the “Zveno” system of air command posts, the development of which was carried out in the Soviet Union. The “Zveno” includes the airborne command and control post on the Il-86VKP aircraft, airborne radio relay on the Il-76RT aircraft, silo-based command missiles ‘Perimeter’ and mobile command missiles ‘Gorn’. In a period of threat, three Il-86VKPs would have the Supreme Commander-in-Chief of the Armed Forces, the Defense Minister and the Chief of the General Staff respectively on board. The Il-86VKP is able to launch an 8 km long antenna, which not even impulses from nuclear explosions can affect. Using this antenna the aircraft can transmit commands to launch all the country’s intercontinental missiles even if all underground command posts are destroyed by the aggressor’s nuclear strike. The radio relay aircraft Il-76RT would transmit commands to launch missiles in distant regions, including those deployed on submarines. In this way, the Dead Hand guarantees a devastating retaliatory strike in the event of communications disruption and the destruction of command posts after the first-strike surprise nuclear attack by the enemy. Its command missiles launch their warheads into space, where no hostile satellite or nuclear explosions can reach them and from there “wake up” nuclear forces to strike the aggressor.

    The dissolution of the USSR in 1991 led to a deep social and economic crisis on the territory of the former Soviet republics. The Russian Armed Forces also entered a period of crisis. In 1995, the Dead Hand was removed from combat duty. After the start of the ‘Putin era’ and the restoration of proper funding for the Russian Armed Forces in the 2000s, national security once again became one of the key priorities of the Russian leadership. In 2011, it was officially confirmed that the Dead Hand had been put on combat duty. The successful test launch of the 15Yu75 missile took place in Plesetsk in 2016. Furthermore, the Dead Hand is also being modernized. In December 2019, the Russian Ministry of Defense announced plans to sign a contract for the new Sirena-M missile complex. The Sirena-M is the most modern variant of the “command missile system” and “command missile” for the Dead Hand. The tests of the Sirena-M missile, which is based on the first version of the Topol intercontinental ballistic missile, began in 1990. All of them were carried out successfully. The Sirena-M system will enter service in the period up to 2025.”

  4. Wait a minute – taking the literal text of the Constitution is a highly controversial position?

    And … the article is completely unconvincing – you simply state things without providing substantive historical context. And you reference our impeachment standard as based on England’s, and then go on to say that we were uncomfortable with the overly broad English standard and so to an extent rejected it. So … doesn’t have to be a crime? Seems to me the Constitution is clear that there does have to be. If there is conclusive historical evidence to the contrary it should be presented in this article.

  5. “Hail Mary passes make for great football, but perfectly lousy impeachment trials.”

    Hail Mary was a term used by Turley to impart an idea in the readers head. That short circuits thinking so I think the professor goofed if one is looking at him as a teacher instead of a partisan. I think he should have made his argument and then if he wished, to claim the hail Mary. I can’t decide on the law but I can see how this impeachment is dangerous and hurtful to our Republic and Constitution. Should we have impeachment trials for Schiff, Pelosi and others who engaged in this travesty? Perhaps based on Turley’s opinions that should be the next step.

  6. Quick history lesson: In negotiating settlement some 400 years ago, the founders secured for themselves the right to make all law provided new statutes were not “repugnant” to the King of England. They subsequently discarded all former law and institutions. And in 1776, waged war not to per se “gain independence,” but rather in defense of liberty, creating in the process a constitutional republic as a nation of law, truly an anomaly to the world. We all know this.

    Pragmatically speaking, in today’s “nation of law,” a president would quite literally not only have to violate law, but violate law most egregiously, to arrive at impeachable offense. That is why Democrats have repeatedly tried to convince the public that Trump did, in fact, most egregiously violate law.

    Yes, the Framers borrowed terms and phrases common in the vernacular, but England’s impeachable, and its impeachment, is not and never has been practice in the U.S. Why? Because Puritan mission had created a rather idealistic, class-leveling, utterly opposed to aristocracy; there were no nobles, no vassals, in fact what we have from the very outset is representative republican governance supported in democratic fashion through town meeting. And an entirely new corporate structure that develops, and thus continues, nationwide in our townships to this very day. This does not mean this was a class-less society, or a society devoid of all social stratification; in base terms, we are a communal creature which requires organizational structure… merely that no impeachment occurred here.

    The point is, yes, historical context is necessary, and the correct avenue, but one should not assume that everything English was faithfully adopted here, truthfully very little was. Even marriage — in England ordinary citizens did not marry, only nobility married. In fact the benefits of marriage were debated in Parliament as late as the early 1800s. Not only did the Puritan discard the English practice of non-marriage (which essentially amounted to legally non-binding childbearing relationships), but it also completely disregarded Calvin’s Marriage Ordinances, or marriage as a religious function, creating instead through state licensing a civil function and a civil entity – “family government” – as the base economic unit of all society, thus setting the stage for prosperity through individual effort in a nation of free enterprise. Again, America was largely autonomous from the very outset, creating entirely new laws and institutions.

    What Turley is attempting here, appears to be, an historical revisionism of a type we’ve not seen before – an attempt to broaden the scope of our constitutional impeachment by reaching to the English of old. Whereas we view impeachment as limited in scope to “treason, bribery, high crimes and misdemeanors” and actionable only unto such officials as “the president, vice president, and all civil officers of the Untied States,” it appears here Turley would have us expand upon that.

    Well, I’ve only ever had but one goal in life and that was to Rule The World! Which is precisely what the King of England did. Perhaps we should dig him up and ask him what he thinks of impeachment? Now that would truly afford insight!

    Dershowitz is correct: “Abuse of power,” and “obstruction of congress,” are not impeachable offenses. Thus impeachment does not meet constitutional standards and should, in fact must be, dismissed on its face. And what’s more is that the articles were intentionally designed this way, as flawed, by House Democrats. Because if the president were to actually be removed from office in such fashion for such an action – holding up aid to Ukraine in exchange for bringing political heat to rival Joe Biden – the sixty-three million would, without doubt, host a first-time “meet and greet” for all in the Hallowed Halls. Because as we are all here repeatedly reminded, by Democrats: a republic if you can keep it. And those of us who believe ourselves part and parcel of what Jefferson himself defined as an at least 800 year effort, are determined to do just that – we are going to keep it.

    Democrat impeachment is just political posturing, an attempt to sway the electorate – that and a rather thorough well-deserved history lesson of the kind many of us thoroughly enjoy.

  7. I look forward to your comments every day on the Impeachment Hearings. I pray for the good of our country & future presidents.

  8. The theory and legal construction of removing the President by “ipeachment” was based upon a exact follow to the grand jury issuing an indictment and then a trial before a judge, and if chosen, a jury. The judge must dismiss the indictment if it does not precisely allege a crime and state facts supporting that crime. If the motion to dismiss is filed and overruled then the judge calls a jury panel. The parties choose a 12 person jury. The trial begins and there must be admissible evidence presented by live witnesses who cannot speak hearsay.
    In the Trump case we have no stated crime in the articles of impeachment (indictment). The Dems (prosecutors) wish to submit facts without witnesses to the Senate (jury).

    As we say in Florida: No way Jose.

    1. Abuse of power>> high crime. Cause for impeachment. And executive power doesn’t apply here. Done deal.

  9. As usual lawyers fight whatever the opposition lawyer asserts. Regardless of whether it is a useful or desirable thing or not they do it anyway.

    There is a simple case for Trump. Present the Biden video getting rid of the prosecutor. Note that Biden was not impeached for this behavior but applauded; it must be legal, right and proper to withhold cash for a legitimate US policy reason — to get rid of a corrupt prosecutor in Ukraine (which, coincidentally helped his son). Let us suppose (entirely for the sake of argument even though it is not the case) that Trump withheld aid/cash for the purpose of investigating a potential case of corruption regarding a candidate for president. Be cause no one should be above the law (neither Trump nor Biden nor Don Jr., nor Hunter) it is right and proper to investigate (or encourage an investigation of) any candidate for president.

    Don’t fight every detail the other side presents. Present but one defense: It is right and proper to withhold aid as a bargaining chip as long as there is a legitimate US interest. Precedent: See Biden video.

    It doesn’t matter what the President thought. (Good thing since mind reading is so iffy.) If there is a good and sufficient reason — US interests reason — it is fine. if it hurts your political opponent dandy. (That is always what opposition research is all about.)

  10. The problem is that in his view (one of his favorite phrases) the “unwarranted interpretation” is wrong. But words mean things. The constitution speaks of treason, bribery, high crimes and misdemeanors. It does not say treason, bribery, high crimes, misdemeanors and whatever might be impeachable in Jonathan Turley’s view.

    If you read Madison’s notes on the constitutional convention (99 cents at the Amazon Kindle store), you will see that those men had an extensive knowledge of history going all the way back to ancient Greece and right up to their present day knowledge of the British system. If they had wanted to have impeachment be a reflection of England’s practices they would have said so.

    Dershowitz’s position on the Trump impeachment is the same as his position on the Clinton impeachment. Clinton did commit crimes but they were not “high crimes.”

    Dershowitz wrote a book about the case against impeaching Trump. But the original title and manuscript was the case against impeaching Hillary Clinton. When Trump won he made the changes.

    Unlike Professor Turley, Dershowitz is not a fence-sitter. His position on impeachment has been consistent and he could not care less about being asked to appear on CNN or MSNBC.

  11. I don’t necessarily subscribe to Alan D’s theory but I do think that absent a criminal offense, the act precipitating impeachment needs to be so egregious that it shocks the conscience and or the sensibilities of the nation.
    Anyone claiming that this kerfuffle does, is either dishonest or in need of emotional support.

  12. “Hail Mary passes make for great football, but perfectly lousy impeachment trials. The problem is that this pass is not going into the constitutional end-zone but well beyond the stadium.”
    Dershowitz is certainly historically wrong but maybe his is a normative argument. In this impeachment happy time when the Dims are using the legislative weapon to nullify an election, perhaps a little more structure than history affords might be warranted. The silliness of the examples cited gives adequate reason why the “should” ought to prevail over “always was.”

    BTW, JT they do make for great football, but it’s only a “Hail Mary” pass if you’re behind. Trump has a commanding lead.

  13. Prof. Turley I think your attempt to extrapolate Dershowitz’s view into permitting a president’s self-evidently outrageous but non-criminal behavior is unfair. He seems to be utilizing Bowie’s Harvard piece from December 2018 where an impeachable offense is an act “so plainly wrong no reasonable official could honestly profess surprise at being impeached.”

    The current president was elected to overturn entrenched state policies and persons and chase down corruption routinely committed by Washington insiders like Biden. Fulfilling campaign promises and making a call with a dozen people listening in are not self-evidently wrong acts a reasonable official would expect to be impeached over. A president’s secret call to request one’s family member be given favorable financial treatment need not be a crime against a written law to be impeachable because no reasonable person would be surprised by impeachment for such behavior.

    I believe Dershowitz is very close to the real standard.

  14. That’s right! I mean, what if a future resident refuses to use the “correct” pronoun when addressing a trans person! Or, what if a future president kneels during a national anthem while drinking from a plastic straw! I mean, the “republic” will be ruined if we have a “clearly defined, objective and neutral standard!” What will Maddow talk about?! What will CNN and Fox run endlessly on the screen? Armageddon, I tell you!

    1. Deborah Bharucha – this is why I get my news from YouTube and the interwebs.

  15. JT, the defense wouldn’t be better if you did it yourself. Remember, the judges here are the Senators and several lawyers think the same way Dershowitz does. You really have four jurors to convince. All you have to do is give them something to hang on to.You just let the President’s team handle their case and you get more stuff for use to blog about.

  16. Done deal. Dersh can’t work with facts. He’s got to make an absurd claim and hope everyone dances around the flawed logic. Fortunately for him, Mitch M. has been leaning on the gig nap button ever since perfecting it Garland-style.

      1. Oh no I’m melting!!

        Confusion as this home job plays out in the Senate is, literally, the only sane response.

        Thank you…, thank you very much.

  17. I see after only 2 hours of hearing from the defense you are portraying them as losing their case. No matter how much shade you throw, your disdain for this President shines through. Are you hoping to elevate Adam Schiff. You’ve got a lot of work to do.

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