It seems that the Andrew Johnson trial is finally back in vogue. It just shows that, like ties, if you wait long enough everything comes back into style.

I have written about my disagreement with Harvard Professor Alan Dershowitz‘s reliance on the trial of Andrew Johnson for support of his theory that impeachable offenses must involve criminal acts. Now, I have to raise similar objections to the other side in its reliance on the trial, specifically the comments of House manager and House Judiciary Committee Chairman Jerrold Nadler.

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.