Congress Criminal Justice & the Rule of Law Democracy & Elections Executive Branch

The Trump Impeachment and the Question of Precedent, Part II: The Trouble With Alan Dershowitz’s ‘Constitutional Argument’

Bob Bauer
Monday, January 20, 2020, 10:18 AM

 Alan Dershowitz and Sen. Mitch McConnell are helping each other set an impeachment precedent in which there would be no room for removing a president for serious abuse of power.

Alan Dershowitz appears on Fox & Friends. (Screengrab, Fox News)

Published by The Lawfare Institute
in Cooperation With

Senate Majority Leader Mitch McConnell has argued for broadly restrictive conditions on impeachment. His objective, as he described it, is to avert the setting of “toxic” and “nightmarish” constitutional precedent. Now President Trump has appointed defense attorney Alan Dershowitz to his legal team to drive this point home. Dershowitz will appear to make the case that the president’s conduct and motives are irrelevant because the House articles of impeachment do not allege impeachable offenses and therefore fail to supply the Senate with both factual matters to develop or consider and a constitutionally permissible basis on which to convict. In a series of interviews on Jan. 17, the day his role was announced, Dershowitz defined his task as “arguing for the Constitution” and not as a “full-fledged member of the legal team” for the president in an attorney-client relationship.

It would be difficult to overstate the significance of a Senate acquittal on the theory that Dershowitz will be advancing. McConnell has conceded that the Constitution does not “strictly” limit impeachable offenses to an “actual crime” but believes that the limitation should be at least a norm, needed as a safeguard against “subjective, political impeachments.” Dershowitz gives no ground on this issue. While he was somewhat unclear in his CNN interview, responding to Jeffery Toobin that impeachable offenses must at least “criminal-like,” he left no doubt in his book on impeachment, “The Case Against Impeaching Trump”: “It is difficult to argue reasonably from the text [of the Constitution] that … a person can be impeached for anything less than a crime.” Moreover, he argues, the impeachable crime must be similar in nature to treason or bribery.

Dershowitz does not stop there in attempting to confine impeachable misconduct to a narrow class of criminal offenses. Once a criminal offense is established, it must also constitute “a violation of a public trust and injury to society.” An abuse of presidential power failing to satisfy these conditions is not impeachable. He believes it “100 percent wrong” to put weight on Hamilton’s position in Federalist 65 that impeachment is available to address broadly an “abuse or violation of some public trust.”

Under the Dershowitz view, a president who murdered her spouse would not have committed an impeachable offense. We would have in that instance a crime, and a very serious one, but just not the right type for purposes of impeachment or removal from office. The president would have to answer to the legal system, as would any murderer. Fortunately for the chief executive, the Office of Legal Counsel has opined that the accounting would be deferred to the end of her presidency when she once again joined the ranks of private citizens.

The “only crimes” limitation that Dershowitz finds in the impeachment clause would also protect a president who announced to the nation that, believing them inferior, he would not appoint women to executive branch positions or consider legislation to remedy pay and other gender-based equities, or who used Oval Office addresses to express support for white supremacists. To use an example supplied by Cass Sunstein in his book on impeachment, the president operating within this exclusion could safely, without constitutional consequence, declare that he would not enforce civil rights laws, or decide to take a year’s vacation in Rome. In an updated edition of the Charles Black handbook on impeachment, Philip Bobbitt pronounces as “absurd” the claim Dershowitz embraces about the scope of impeachable offenses. It is not, he writes, “remotely possible that this interpretation is right.” Dershowitz has an additional problem in arguing this case while also disclaiming that he is not defending the president on the particulars. He actually is staking out a position in the fashion of a defense counsel rather than a constitutional expert purportedly having no attorney-client relationship with the president. The House Judiciary Committee crafted the “abuse of power” article without a reference to criminal conduct but issued a report expressing the committee majority’s conclusion, adopted by the House, that the constitutional offense did include criminal behavior: bribery and honest services fraud.

In his Jan. 19 interview with George Stephanopolous on ABC, Dershowitz dismissed the House’s report as having no importance. As far he is concerned, the House report does not matter, only the impeachment articles read without further consideration of the report’s formal elaboration of their scope. Dershowitz can make this argument, but it seems more of an argument in defense of the president than an open-and-shut constitutional position tendered by a neutral expert. Why would the Senate not consider that the House articles are to be read in conjunction with the House report?

Perhaps also reflecting his history and orientation as a defense counsel, Dershowitz made a clear misstep in his ABC interview. Stephanopolous asked him whether he deemed it acceptable for the president to “solicit foreign interference in our elections.” He declined to respond with his “personal views” but then added that “I think that conduct does not rise to the level of impeachable offense.” His move here was subtle but not to be missed: He shifted from arguing that the articles themselves do not allege a crime, hence an impeachable offense, to his own legal judgment of “that conduct.”

Presumably, this is because Dershowitz does not believe that soliciting a foreign national’s assistance with a U.S. election is a crime. He is mistaken. The federal campaign finance law bars soliciting anything of “value” from a foreign national to influence a federal, state and local election. Whether the solicitation was made and “value” received depends on the facts—facts with which Dershowitz claims he has no intention of engaging. Yet he pronounced on the question nonetheless and, to the president’s benefit, passed over the facts and erred on the law. It certainly had the familiar characteristics of a defense counsel’s argument.

Yet, returning to the position that Dershowitz as a constitutional expert is endeavoring to vindicate, it is striking how far, and how untenably, he would take the legalization of impeachment. In his book, he argues that the Constitution’s designation of the chief justice as the presiding officer of the trial underscores that it is a fully legal, not political, process. In this role, the chief justice “is bound to apply the Constitution to any act of the legislature.” He “should also rule on the admissibility of evidence and other procedural issues, but also [make] a legal determination as to whether the constitutional criteria [for impeachment] have been met.” It would fall to the chief justice to rule on a “motion to dismiss.” It is in this exceedingly peculiar fashion that Dershowitz would construe the constitutional command that the Senate possesses “the sole power to try” impeachments.” It seems that, as Dershowitz reads the Constitution, the Senate shares this “sole power to try” with the chief justice.

This is not all. Dershowitz has argued that the president may appeal a Senate conviction to the Supreme Court and refuse to leave office until the case is heard and decided. This is an extreme conclusion he draws from his view that impeachment is a fully legal process. Keith Whittington has previously explained on Lawfare all the absurdities entailed by this position.

What is driving this line of reasoning, which Dershowitz will soon present on behalf of the president—or, as he would have it, on behalf of the Constitution—on the floor of the Senate? Dershowitz argues two predominant concerns. First, he insists that, as a civil libertarian, he is concerned with individual rights. Like McConnell, he sees the president as having an entitlement to “due process” that only his extreme constitutional reading would protect. But Dershowitz also fears that the standard reading of the criteria for impeachment, which would allow removal for noncriminal but serious “abuse of power,” would lead to the “weaponization of politics.”

The first of these concerns, focusing on the president’s individual rights, fundamentally misapprehends the structure of constitutional powers and interests at play in impeachment. A president facing impeachment or Senate trial may and will argue for procedural fairness, which in practice would result in “rights” comparable to those individuals are guaranteed in the criminal or civil legal process. Congress has afforded these types of rights over time, creating precedents to which presidents may appeal in demanding representation by counsel, etc. Congress provides these procedural accommodations to the president as president, not as an individual alleging enforceable “due process” guarantees, and it answers to the electorate for the degree of fairness it exhibits.

Dershowitz’s framing of the president's “civil liberties” interests leads away from Congress and the political process into the courts and the legal process, in a way that would radically reshape the nature of constitutional impeachment. As Bobbitt has pointed out, “[W]e have to divest ourselves of the common misconception that constitutionality is discussable or determinable only in the courts.” Congress bears the “responsibility to preserve the forms and precepts of the Constitution … when the judicial forum is unavailable, as it sometimes must be.”

Dershowitz’s second concern, the “weaponization of politics,” is different from and in some tension with his focus on civil liberties. His worry on this score is that, if impeachment is not subject to tight constraints enforceable in the courts, partisans will run wild with the impeachment process to hobble or destroy their adversaries. Here Dershowitz’s emphasis is on the danger to the health of the polity, not to individual rights (though he may well see a cost there). But the answer to the “weaponization” problem is not narrowing in extreme ways a president’s accountability for egregious abuses of power. Under the guise of defending against weaponized politics, Dershowitz would weaponize the presidency. A civil libertarian would be hard-pressed to take comfort in this outcome.

Dershowitz is not responsible for what McConnell has offered as his own view of impeachment, but the positions they have taken are mutually reinforcing a move toward a questionable constitutional direction. McConnell speaks, though not at the same length, to the importance (if, in his view, not strict necessity) of limiting impeachable offenses to crimes. Dershowitz is harder-core and still more absolutist on this question. McConnell would also bring the courts into a key role, if in less extreme terms than Dershowitz would: The senator would have them arbiter privilege and evidentiary disputes. The Republican leader also pushes for an expansive view of what constitutes a “policy disagreement” that is not properly subject to impeachment, and he would effectively allow the fact of a party’s staunch defense of its president to tar the other, opposition party’s pursuit of impeachment, whatever the merits, as impermissibly “partisan.”

The politics of Dershowitz’s appointment seems clear. The president can only be pleased with the sweep of Dershowitz’s argument and provided for his book on impeachment a blurb to “encourage all people” to read it. And because Dershowitz will make this case as the “liberal Democrat” that he has stressed he is, his defense of the president will bolster McConnell’s attack on the House impeachment as the action of “one part of one faction” of “angry partisans.” Dershowitz will be portrayed as the responsible bipartisan resistance to the making of what he has called “terrible,” and McConnell has denounced as “toxic,” precedent. Indeed, Dershowitz has declared that he will be delivering a “nonpartisan view” of a “highly partisan impeachment and removal.”

In the coming Senate trial, McConnell and Dershowitz are helping each other set a very different precedent of their own, one in which, as a matter of norms (McConnell) or constitutional law (Dershowitz), there is no room for removing a president for the serious abuse, or repetitive abuses, of the power of his office. And, under Dershowitz’s view, a president who is a murderer, a white supremacist, or a virulent misogynist, or who takes off for a year’s vacation in Rome, would also be free to serve out his or her term, or take into a reelection campaign the “vindication” supplied by a Senate acquittal.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

Subscribe to Lawfare