Dershowitz’s Dangerous Game

His defense of Trump threatens the checks and balances at the heart of Congress's impeachment power.

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Dear Republican senators,

I will not try to convince you how to vote in the impeachment trial of President Donald Trump. I won’t even lecture you about the need for witnesses, in part because by the time you see this it will probably be too late. My request is far more humble and possibly far more consequential: When you vote to acquit Trump of the charges leveled against him, please, please, forthrightly reject the central argument of Trump attorney Alan Dershowitz. 

According to Dershowitz, “abuse of power” is not an impeachable act. Seriously. Any abuse of power that doesn’t include a separate violation of criminal law is immune from impeachment, he contends. Indeed, any act—whether you call it abuse of power or corruption—is, for Dershowitz, fully within the president’s constitutional ambit. 

So a president who gets fall-down drunk every day and fails to fulfill the barest minimum of his duties cannot be impeached because getting drunk isn’t a crime. Do you want to validate that nonsense?

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  1. Avatar photo
    Roderic Fabian

    A president who is falling down drunk all the time could be removed using the 25th Amendment, as was discussed at one point among the career bureaucrats in the administration.

    The only reason that the Congress's power was damaged by Trump's refusal to hand over information is that Congress was too impatient to wait for the judgement of the courts. Presumably a Congress willing to proceed in a reasonable and rational fashion in the future will not be so damaged.

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    Bud

    The power of the people to vote, to replace "mistakes" with "hope", is our ultimate protection and remedy against abusive elected and appointed fundamental branches of the executive, the congress and the judiciary of the Federal government. It is not the duty of Congress to "correct" the mistakes made by we the electorate. The assumption otherwise by our federal government would clearly be an abusive use of power. Impeachable offenses must be unequivocally obvious and undeniably necessary to protect our very existence as a country if it is to be used to overturn an election by the people. The founders of our country were more concerned with the federal government's abusive assumption of responsibility and authority over people. The founders intended impeachment to be an extremely difficult protective remedy because of the political implications and influences. Their hope was that we the people will take care of ourselves and "fix" he problem in the next election. It worked!

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    Ralph Alderson

    Re differing standards for judges and presidents is found in Article III: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior". The absence of that phrase in Article II is significant. Re the impeachment in general, Lamar Alexander starts along the correct line of thinking that the rest of the Senate should be using: the facts of the "abuse of power" charge are accurate (stipulated, so we don't need more witnesses) and what the President did was at least partially (but not provably wholly) motivated by personal gain. However, his actions, while regrettable and worthy of condemnation, do not warrant removal - especially this close to an election.

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    Johntadian

    Personally, I'd prefer our current President too drunk to tweet.

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  5. Sean

    “So a president who gets fall-down drunk every day and fails to fulfill the barest minimum of his duties cannot be impeached because getting drunk isn’t a crime. Do you want to validate that nonsense?”

    Harvard Law School professor Nikolas Bowie wrote a law review article cited by Dershowitz in support of his claim that removal of the president from office requires the allegation of a crime. In a recent New York Times op-ed, https://www.nytimes.com/2020/01/27/opinion/impeachment-defense-trump.html, Bowie affirmed his view that a crime is indeed required but asserted that Dershowitz had misunderstood him in that he believes that a common law crime would suffice. He referenced a source showing that “abuse of power” was a common law crime. Among the examples of this, under the heading "Misconduct in office," was “Being intoxicated with spirituous liquors while in the discharge of his official duties...”

    The Supreme Court decided in United States v. Hudson (1812) that the federal courts could not convict defendants for common law crimes, only statutory ones passed by congress, but it did not decide that the senate could not convict a president in an impeachment trial on the basis of common law crimes.

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  6. Deleted Comment

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      Bill Nelson

      "For now on, any president with 35 Senators on his political side will enjoy powers completely unchecked by Congress"
      Only true if a presidential veto is never overridden. The House, with the power of the purse, holds greater control over the executive. And I do not believe that the Dershowitz argument is a precedent. Each subsequent impeachment will establish their own criteria. The key part of Clinton's defense, in closing was stated as:
      "There is only one question before you, albeit a difficult one, one that is a question of fact and law and constitutional theory. Would it put at risk the liberties of the people to retain the President in office? Putting aside partisan animus, if you can honestly say that it would not, that those liberties are safe in his hands, then you must vote to acquit."
      Much different arguments today.

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        Christopher Clements

        President Clinton was indicted and disbarred for his actions. He was investigated by a Special Counsel who reported directly to the Congress. This is so different.

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    Bill Nelson

    I am going to agree with Dershowitz on the different standards for judges, because judges are not elected. Here is a better example for a president:
    Suppose Pres. Sanders establishes a very warm relationship with Russia once they convince him they are really communists. He directs the US military to provide assistance when asked to the Russian military in its very adventures (e.g. US of US facilities to send supplies to Syria and the Crimea). Directs the DOD to hold joint military operations and teach the Russian military how to operate and repair key US systems. No Senate oversight of a treaty. This should be considered that violation of the public trust sufficient to remove a president.
    The falling down drunk case might be best suited for the 25th amendment.
    And sometimes it is good to be the falling down drunk.

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    A Citizen

    The simplest reason why Dershowitz can't be right as a *Constitutional* matter is that the clause that impeaches and removes judges is exactly the same clause that impeaches and removes Presidents. Since the clause makes no distinction between judges and Presidents, there can't be different standards. That said, the House and Senate (individually or jointly) are allowed to make the standards different for the reason Dershowitz espouses, for the obvious reason that they can apply virtually any standard they want. Indeed, Lofgren argued that each individual Senator is free to have his or her own standard for conviction.

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  9. Pop Kennedy

    Please review the attached in its entirety.
    If the fellow in this video is not blowing smoke, why the heck isn’t some in our vast government doing something!
    https://youtu.be/kuvfYE7ZdL0

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      This comment has been deleted

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    Theirn Scott

    Thank you!

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