The Dershowitz Defense: How Dershowitz Made The Case Against His Own Defense

Below is my column in USA Today on the Dershowitz defense and why he reached the right conclusion for manifestly the wrong reason. Dershowitz has maintained that his views were distorted by the media and critics, but at base his argument is still deeply flawed. The problem is not (and never should be) that he is at odds with the vast majority of constitutional scholars. The problem is that he is at odds with the vast majority of constitutional sources. Moreover, his examples if anything proved the case against his defense.

Here is the column:

The saying “Academic politics is the most vicious and bitter form of politics, because the stakes are so low,” is often attributed to the late Columbia Professor Wallace Stanley Sayre. Late last night, retired Harvard Professor Alan Dershowitz seemed to both prove and disprove that statement. 

Dershowitz launched into a criticism of the entire legal academy for disagreeing with his theory of impeachable conduct and even called out a fellow Harvard Professor Laurence Tribe for (like Dershowitz) changing his views. That was the petty part. But this was the Senate floor and the stakes are hardly low with a presidency in the balance. 

I found myself, again, thrown into the fight through a video played by the House Managers on the Senate floor declaring, in contradiction to Dershowitz, that impeachment can be based on abuse of power and non-criminal acts (The managers cut off the clip before I ended the line with “but it is just not easy.”).

Dershowitz has right conclusion

I hold a different interpretation but not necessary a different ultimate conclusion from Dershowitz. I do not believe that the House managers have sufficiently rebutted the defense of the president and specifically established the necessary intent to hold the Ukrainian aid for solely political purposes (as opposed to a policy concern of corruption or sharing costs with allies).  

While I praised Dershowitz’s presentation of his theory on Monday as cogently and powerfully argued, I still believe that he is fundamentally wrong in maintaining that impeachable offenses must be based on actual crimes or “crime-like” conduct. However, the tight argument on Monday seemed to gradually loose more and more definition with every hour and day. Dershowitz declared that “Every public official that I know believes that his election is in the public interest. And mostly, you’re right. Your election is in the public interest. And if a president does something, which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

It was a surprising and baffling statement. Where his definition of impeachable offenses would proscribe too little, this argument would protect too much in presidential misconduct. Clearly everything that a president does in office will come with a patina of politics. However, this argument would make that common denominator into an absolute defense. It is akin to saying that the Navy cannot commit maritime crimes carried out in water. Politics is the common element of presidential conduct just as water is the common element of naval action. That is why the argument becomes circular.  Presidents cannot be impeached for politics but he argues all is politics for presidents.The rhetoric seemed to outrun his reasoning at that point.  It came across as a tad too trite, Simpson-like construct that, if it is political, there must be acquittal. 

While Dershowitz encourages senators not to consider the overwhelming view of academics (who he described as biased and dishonest), his narrow view of impeachment quickly unravels using the very hypotheticals that he raised.  

For example, Dershowitz repeatedly cited how President Abraham Lincoln’s call on General William Tecumseh Sherman to release Indiana soldiers to return to that state to vote in the key 1864 election. Dershowitz also noted that Lincoln unconstitutionally suspended habeas corpus but was not impeached for either act. The examples however prove the contrary to Dershowitz’s position. Get the Opinion newsletter in your inbox.

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Degrading our defenses for political benefits or suspending habeas corpus are non-criminal act that show why we cannot limit impeachable conduct to the criminal code. They are examples of potential impeachable abuses of power. While Lincoln could defend his authority or privileges in the courts, it is precisely such abuses that militate against the narrow definition advanced by Dershowitz. Otherwise, a president could be impeached for accepting a small bribe but not denying an entire nation the protections of its army or the great writ. 

Dershowitz makes case against himself

Dershowitz also made the case against himself in his earlier writings that President Trump could give Alaska back to the Russians. He wrote: “Assume [Vladimir] Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution.” 

So under this theory, Trump cut literally give away whole states without facing impeachment because we do not have a crime for “wasting or converting or abandoning sovereignty.” That would leave critical swing senator, Lisa Murkowski (R., Alaska), running for the Russian Duma because Trump believed the Russians were bamboozled by Secretary of State William Seward in the 1867. Indeed, for want of a crime, Trump could not only trade foreign aid for the investigation of Joe Biden, but he could give Delaware back to the Dutch.  

The fact is that there is a host of non-criminal acts that could not just put lives but the nation at risk. If those acts are committed for purely personal reasons, they can be impeachable. It is the most difficult type of impeachment to prove, particularly if you are not alleging collateral criminal acts. This is not just the narrowest presidential impeachment in history but the first to allege only non-criminal conduct. If there are other reasons for a president to have acted (even unwisely or catastrophically), a case for removal cannot be made. In other words, it is not impossible (as suggested by Dershowitz) but it is highly difficult when faced with countervailing reasons for the same conduct.  

The hypotheticals raised by Dershowitz would make for lively exchanges in a faculty lounge. They hold a bit more of a chilling quality on the Senate floor. The stakes are not so low when the Republic rests in the balance. We are unlikely to loose Alaska or Delaware in the process, but we can loose a badly needed (if highly difficult) option for non-criminal but abusive conduct. 

The case for such an option was vividly shown by Professor Dershowitz himself.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

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