With the exception of one vote on one article of impeachment (by Sen. Mitt Romney), the acquittal of President Donald Trump went as predicted with a party-line vote. Notably, however, the vast majority of senators, including a significant number of Republican senators, expressly rejected the core defense offered by Professor Alan Dershowitz in their statements –rejecting the position that impeachable offenses must be based on criminal allegations and does not include allegations of abuse of power. What we did not see, as discussed in this column in The Washington Post, was a bipartisan rejection of Article II.
Here is the column:
Justice Oliver Wendell Holmes Jr. once wrote that “Great cases, like hard cases, make bad law.” The Trump impeachment case suggests the same is true about bad cases making bad law. The fact is that the greatest danger in the Trump impeachment was never the president’s acquittal or his conviction. It was the adoption of the extreme views advanced by both sides in the trial.
Every line of work — from law to carpentry to software — has its own house rule about how bad results come from bad beginnings. There is even an initialism for this: GIGO, or garbage in, garbage out. Unless senators use their closing arguments this week to clarify that they are not endorsing either the prosecution or defense premises in reaching their verdicts, this will go down as the GIGO impeachment: precedent created by false assumptions in both houses.
The House blundered in rushing an impeachment by Christmas rather than waiting a couple of months to submit a more complete case with added witnesses, court orders and evidence. Instead of seeking to compel such direct evidence, the House pushed the vote to impeach on the basis of what my co-witnesses called by the Democrats admitted was an inferential case. There is no question that you can make an inferential case for impeachment, but it is the difference between a strong and a weak case. Rather than wait a couple months to strengthen that record (as I suggested at the Judiciary hearing), the House muscled through an impeachment after the shortest investigation of a president in history.
The greatest concern in the House’s case was always the obstruction-of-Congress charge. The House declared that the administration’s failure to yield to demands for witnesses and evidence was by itself a high crime and misdemeanor. The problem is that other administrations have raised the presidential immunity claims made by the Trump administration, and those claims were supported by legal opinions from the Justice Department. Both Richard M. Nixon and Bill Clinton were able to litigate their privilege claims all the way to the Supreme Court before facing impeachment.
While Democrats have denounced the lack of bipartisanship in the Senate, they have not shown such bipartisanship in this impeachment or, for that matter, the Clinton impeachment where Democrats voted unanimously to acquit. The obstruction charge should be rejected on a bipartisan basis — not because both sides agree either with the underlying claims or President Trump — but because future Houses should be warned that such abbreviated investigations are a rush to judgment.
The greatest blunder of the White House, meanwhile, was its baffling decision to build its defense around the widely discredited theory of Alan Dershowitz that an impeachment requires a criminal allegation.
This was snatching defeat from the jaws of victory. The White House had strong arguments to make in its defense. It did not need to argue that a president can never be impeached for abuse of power.
That idea provided the most dramatic — and damaging — moment of the trial. Dershowitz’s argument — “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” — produced audible gasps. It was an argument that would have made Richard Nixon blush and suggested that any abuse of power short of a criminal act would be by definition unimpeachable.
The damage had been done. The president’s defense was then tied inextricably to this extreme and chilling argument. Lost were the myriad strong points raised by the president’s other lawyers. After Dershowitz sat down, the Trump impeachment became the Dershowitz defense. And by embracing this highly flawed logic, the defense robbed the president of the very legitimacy that he would seek in a more straightforward and law-based or fact-based acquittal.
Historians will always question whether a vote to acquit was based on an erroneous standard that held that abuse of power is not an impeachable offense.
Senators can still rise to this messy occasion with a bipartisan position on these two troubling elements.
First, at a minimum, Democrats should join Republicans in rejecting Article II. That will lead to more thorough House investigations in the future.
Second, Republicans should join Democrats in rejecting the Dershowitz defense and, while voting to acquit, they should reaffirm that abuse of power is an impeachable offense, even without an allegation of a criminal violation.
When Holmes made his first statement on bad cases, he added a rarely quoted explanation: “For great cases are called great, not by reason of their importance … but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
This is a great case marred by passion and distortion. What is surprising is that both blunders were not “accidental” but premeditated by the two parties. It undermined the legitimacy and authenticity of the actions in both chambers. Even if the senators cannot agree on what is appropriate for impeachment, they should at least agree on what is not appropriate. That will not make a bad case great, but it might provide a redeeming moment for the Senate as an institution.