The Absurdity of the ‘He Didn’t Break a Law’ Defense

On Monday night, I listened to Alan Dershowitz’s argument as I drove home. It was, as you might expect from a seasoned criminal defense attorney, well-delivered, well-structured, and learned. It was also so full of bat-guano craziness it might be a vector for the coronavirus. 

I said as much on Twitter with perhaps too much verve and too little panache. 

As shocking as this may be to virtually nobody, many of the people who want Dershowitz to be right heaped scorn on me. There was plenty of “Sure, professor Goldberg” stuff. 

Now, I get it. I’m not a lawyer at all and Dershowitz is a very famous and successful one. If you want to go with an appeal to authority argument, he trumps me by many orders of magnitude. But here’s the thing: Lawyers often take positions that are beneficial for their clients. You could look it up. But whether you think Dershowitz sincerely changed his mind from 20 years ago or whether you think he changed it to fit the needs of his client, is beside the point. He’s either right or wrong on the merits. His argument isn’t dispositive simply because it comes out of his mouth. He’s not an infallible priest or even a judge whose position becomes the ruling interpretation simply by virtue of the fact that it came from him. He’s offering an opinion. 

Also, the fact that the overwhelming majority of constitutional scholars (Dershowitz really isn’t one by the way) disagree with him doesn’t mean he’s wrong either. This fact is certainly instructive, but not dispositive. 

So, let me defend my position with more substance than I provided in my tweet. 

I’ll take my claims out of order. 

Let’s start with facts, history and the Constitution. 

We inherited the tool of impeachment from England. In one of the most famous and foundational impeachment cases, Warren Hastings, the former imperial governor in Bengal and a colonial administrator in India, was accused of abusing the powers of his office. The trial was led by Edmund Burke (widely considered the father of Anglo-American conservatism) and was fresh in the minds of the Founding Fathers. Burke argued that while Hastings may not have committed indictable crimes, his misrule had fallen well short of the principles of statesmanship. And impeachments must be “tried before Statesmen and by Statesmen, upon solid principles of State morality.” To reduce impeachment to a criminal proceeding was folly, he argued. Rather, Burke told the court, “the principles of honour, the spirit of cavaliers to govern here; not the low principles of jurisprudence only.”

I’ll skip past the familiar story of how the impeachment clause was crafted and all the debates over “maladministration” etc. Instead, I’ll just point to the fact that James Madison—the guy who wrote the impeachment clause—addressed this issue at Virginia’s ratifying convention. As Ramesh Ponnuru notes, “Madison said during the Virginia ratifying convention that the Constitution provided ‘one security’ against a president who urged a crime and then pardoned it: impeachment and removal.” For instance, the president has unreviewable pardon power. But if he encourages unlawful behavior with the promise that he will pardon it after the fact, Congress can impeach him for it. 

In Federalist 65, Hamilton writes that impeachable offenses are “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.* They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” [All caps in the original.]

Again, I’m no constitutional scholar, but I’ve yet to find many actual constitutional scholars on Dershowitz’s side of the argument. See, for example, this good piece in the New York Times on the topic. The author talked to Frank O. Bowman III, a University of Missouri law professor and author of the recent book, High Crimes and Misdemeanors “This argument is constitutional nonsense,” Mr. Bowman told the Times. “The almost universal consensus in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since—has been that criminal conduct is not required for impeachment.” (Bowman’s scholarship is cited in the White House’s brief, for what that’s worth).

Or as Dershowitz himself said of impeachment back when he was consulting for Bill Clinton’s defense team, “It certainly doesn’t have to be a crime, if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”

Now, let’s talk about logic and morality. Take Trump out of it. Does it make any sense that a president has to violate a criminal statute to be impeached? When the Constitution was ratified there were no federal criminal statutes. The only “federal” crimes  were those mentioned in the Constitution itself: Piracy, counterfeiting, treason and bribery. (I would argue you can find a fifth: copyright infringement, but that’s an argument for another day). Do we believe that the Founders intended to say that so long as a president didn’t counterfeit money, commit treason, take a bribe or hoist the Jolly Roger on the high seas, he couldn’t be impeached? Even if you look to the Crimes Act of 1790, which fleshed out what a federal crime was, there’s all sorts of behavior that common sense says should be impeachable. 

Remember, the 25th Amendment doesn’t enter the picture until 1967. So basically any crazy behavior would have to be addressed with the impeachment power. What if a president just walks off the job? Say the president decides to follow a Grateful Dead tribute band around the country for a year. That wouldn’t be illegal, strictly speaking. I could spend the rest of the day conjuring up all sorts of scenarios where a president did non-criminal but obviously impeachable acts. A president who spends his time in a smoke-filled VW van isn’t fulfilling his oath to see that the laws are faithfully executed. And I’m not sure that selling a pardon would count as bribery, given the president’s unreviewable power to pardon. But I’m damn sure it should be impeachable, whether it counts as bribery or not. 

Which brings me to morality. It is a grotesquerie of modern life that we often think so long as someone doesn’t break the law they should be immune to sanction. This was a point Judge Bork made during the Clinton impeachment. In a healthier society we wouldn’t have needed to resort to the perjury charge to find Bill Clinton’s behavior with Monica Lewinsky impeachable. You may disagree with that on the substance of what Clinton did while still recognizing the validity of the principle behind the position. 

Yes, in one sense the TV lawyers spouting off about due process have (some) legitimate criticisms of the House’s impeachment effort. But on another level, they’re being profoundly deceptive. Go back to the Madison quote above. Impeachment was never intended to be a criminal trial. Impeachment is not a criminal process and removal is not a criminal punishment. It may feel like a punishment when your boss fires you for gross incompetence or outlandishly unprofessional behavior, but that doesn’t mean it is one. The sense of punishment is incidental. Impeachment is the process by which the representatives of the people—the legislative branch—deems it necessary to fire the chief executive. Remove that ability and you turn the president into an elected autocrat. Most of the “rights” the president’s lawyers say Trump was denied aren’t the same rights you and I have. They are institutional privileges and prerogatives that attach to the presidency. Yet, to listen to Jay Sekulow you’d think the president was being sent to the chair without being read his Miranda rights.  

Impeachment is a political process by intention and design and senators are supposed to be statesmen who take the health of the body politic and constitutional order into account. “Abuse of authority” may be a federal crime—I have no idea—but it wasn’t explicitly one when impeachment was conceived of. It was about higher considerations—hence the high in “high crimes and misdemeanors.”

To live in a country where a president can do whatever he wants so long as he doesn’t violate some criminal statue, provable beyond the reasonable doubt required in criminal law, is a morally obtuse proposition. If the president routinely went on TV dropping racial epithets and anti-Semitic broadsides, he would be completely within his rights to do so. But I would like to think we live in a country where the democratically elected legislative branch would say, “this is unacceptable” regardless of what the criminal justice system has to say about it. 

I find the argument that impeachment is a draconian measure because it “overturns an election” to be ridiculous on its face. We elect a president and vice president on the same ticket in large part to protect the will of the voters. To say that removing a president overturns the will of the voters is to say that the voters cast ballots for any impeachable behavior the president commits. This is a logical and moral absurdity. 

Now, none of this is to say that criminal behavior doesn’t make the case for impeachment easier. But that is not Dershowitz’s claim. He flatly says abuse of power in itself is not impeachable. Abuse of power absent a violation of criminal law may be harder to identify than abuse of power that does violate criminal law, but no one said statesmanship is the art of making the easy decisions. None of this is an argument for what senators should do with regard to Donald Trump. It is an argument for protecting the right of the people, through their elected representatives, to fire a president who does not uphold the standards required by the job. 

And that’s why I think the idea that only violations of criminal law are impeachable is logically, legally, morally, constitutionally, historically and factually absurd.

Photograph of Alan Dershowitz by Senate Television via Getty Images.

Correction, January 29, 2020: The article originally described James Madison as the author of Federalist 65. Alexander Hamilton wrote it.