February 8, 2020
Trump’s impeachment defense

In a posting about eighteen months ago, I wondered how low the Trump administration could go.  The answer I suggested was its cruel practice at the border, separating children, including infants, from parents.  That still would stand as a benchmark for reprehensible policy. Now, in the arguments of his advocates at the impeachment hearing in the Senate and the behavior of his supposed judges, Trump’s minions have set the standard for political irresponsibility.

That the Senate hearing would be a farce was made clear by Mitch McConnell’s statement, unbelievable in any prior era: "Exactly how we go forward, I'm going to coordinate with the president's lawyers."  To ensure that we got the point, he added, "The case is so darn weak coming over from the House. We all know how it's going to end. There is no chance the president is going to be removed from office. My hope is that there won't be a Republican who votes for either of these articles of impeachment."¹

Senator Lindsey Graham demonstrated his objectiveness as a juror thus: “The best thing for the American people is to end this crap as quickly as possible;” he hoped that "nobody will be called as a witness" and warned Republican Senators against “believing that Democrats want to get to the bottom of Trump's decision to delay Ukraine aid.”² 

The presentation by Trump’s lawyers was an exercise in obfuscation.  Ken Starr, when the Clinton Independent Counsel, displayed no qualms about impeachment though he was pursuing a matter unrelated to presidential policy or competence.  Now, in defense of Trump he pronounced — with no sense of irony — that "the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can aptly be described as the age of impeachment."³  
  

He added: "How did we get here, with presidential impeachment invoked frequently in its inherently destabilizing as well as acrimonious way?"  Might he have contributed to the supposed trend, by making an impeachment referral against Clinton, in 1998?  No; the immediate cause of the supposed cascade of impeachments is “the Independent Counsel provisions of the Ethics in Government Act of 1978," under which he was appointed.

However, the core problem, he argued, is the Constitution; it shouldn’t contain an impeachment provision because nasty Democrats will abuse it.   Impeachment, he told us, is dead in Britain.  “Yet here at home, in the world’s longest standing Constitutional Republic, instead of a once in a century phenomenon, which it had been, presidential impeachment has become a weapon to be wielded against one’s political opponent.”  As to his once-in-a-century rule, is he forgetting the Clinton episode, or is the Nixon case ignored because he resigned, or can’t Starr count? Is there a quota? 

Alan Dershowitz brought much more impressive credentials, along with an appearance of impartiality arising from his vote for Hillary Clinton.  However, the Trump miasma settled over him.  He joined the chorus of defenders claiming that only a criminal offense can be grounds for impeachment and removal: “Purely noncriminal conduct including abuse of power and obstruction of Congress are outside the range of impeachable offenses,” he declared.⁴  Starr had advised the Senators that “the commission of a crime is by no means sufficient to warrant the removal of our duly elected president.”  Therefore a crime is necessary, but not sufficient.  How convenient.  

Dershowitz acknowledged that his present position is new: “During the Clinton impeachment, I stated in an interview that I did not think that a technical crime was required, but that I did think that abusing trust could be considered.”  That view would, of course, undermine Trump’s defense.  Happily for his client, he has “gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit the criteria for impeachment to criminal type acts akin to treason, bribery, and they certainly did not intend to extend it to vague and open-ended and non-criminal accusations such as abuse of power and obstruction of Congress.”  So there.
  

His new study, judging by the source he cited repeatedly, consisted less in examining the Founders’ views than in those of an attorney who represented Andrew Johnson in his impeachment trial, not an objective source. 

Dershowitz conceded that “the academic consensus” is that no crime is necessary.  We also might consider the Nixon impeachment inquiry.  Here is a comment by Elizabeth Holtzman, a member of the House Judiciary Committee which drafted the articles:

President Trump’s defense lawyer Alan Dershowitz — my professor at Harvard Law School — is flat-out wrong in his assertion that abuse of power is not a basis for impeachment. . . . [H]is assertion flies in the face of the articles of impeachment voted against President Richard M. Nixon by the House Judiciary Committee — of which I was a member — in 1974. . . . Not one of the three articles adopted by the Judiciary Committee mentioned a criminal statute, charged Nixon with violating any criminal statute or described how his conduct met the standards set forth in any criminal statute.⁵

(Here is another rebuttal to Dershowitz’ argument, not authoritative but, like so much of this farce, ironic: “Doesn’t even have to be a crime. It’s just when you start using your office and you’re acting in a way that hurts people, you’ve committed a high crime.”  That was Lindsey Graham, as House prosecutor against President Clinton).⁶

Dershowitz quoted the description of impeachment in Federalist 65, by Hamilton:

The subjects of its jurisdiction 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 society itself.

That describes the charges against Trump, but Dershowitz attempted to explain them away: “Those are Hamilton’s words. They’re often misunderstood as suggesting that the criteria authorizing impeachment include the misconduct of public men or the abuse or violation of some public trust. That is a misreading.”  What Hamilton said is a “misreading.”  To justify that claim, he again inserted into the Constitution a requirement of a crime.  Adding that requirement is a logical problem in that, at the time of the drafting of the Constitution, there were no federal statutory crimes. Dershowitz acknowledged that, but attempted, unconvincingly, to explain it away.

As to the referral by the House, he drew a distinction between articles of impeachment and the details (“specifications”) within them.  He asserted that the “specifications are themselves vague, open-ended, and do not charge impeachable offenses. They include such accusations as compromising national security, abusing the power of the presidency, violating his oath of office.”  Why are those not grounds for removal?  Apparently we’re back to the crime issue. 
  

In any event, there is a fallback position: “it’s the actual articles on which you must all vote, not on the more specific list of means included in the text of the articles.” That, he said dooms the House position because “the actual articles . . . charge abuse of power and obstruction of justice, neither of which are in the Constitution.”  Only offenses listed in the Constitution may be grounds, he argued, and all of those listed are crimes.  He is mistaken, as demonstrated by the “academic consensus.” 

The Constitution provides, in Article II Section 4, that the President “shall be removed from Office on Impeachment for and  Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  All of his argument that a crime is necessary to impeachment is based on a misreading of the phrase “high crimes and misdemeanors” which, in historical context, refers to the offenses against the state referred to by Hamilton in Federalist 65, not to crimes in the law-enforcement sense.

In arguing that abuse of power cannot be a ground of impeachment, Dershowitz claimed that the Founders, by “expressly rejecting maladministration [as a ground] . .  implicitly rejected abuse.“ That is simply illogical; the two are different concepts. 

What would add up to impeachable conduct in his view?  Well, probably nothing related to re-election; for that Dershowitz offered this stunning argument, plucked out of the air: “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.”  If a president believes, however ludicrously, that his election will be in the public interest, he may make any corrupt bargain which appeals to him.  Could we name a president whose ego and lack of ethics would lead to such behavior?

Dershowitz addressed the factual basis of the charges only in one passage, which evaded the issue.  He began with this statement: “Here I come to a relevant and contemporaneous issue. Even if a president, any president, were to demand a quid pro quo as a condition to sending aid to a foreign country, . . . obviously a highly disputed matter in this case[,] that would not by itself constitute an abuse of power.”  That is a meaningless comment, as it omits the personal, political gain which was the quid pro quo in the Ukraine matter.
   

He then posed, irrelevantly, a hypothetical which involved no such personal gain, and added, with equal absence of meaning, “Quid pro quo alone is not a basis for abusive [sic, abuse of] power.”  He added a little later, “you cannot turn conduct that is not impeachable into impeachable conduct simply by using words like quid pro quo and personal benefit.”  Of course, that is not what the House did.  It charged Trump with subordinating the national interest to his desire for assistance in re-election, of withholding monetary aid authorized by Congress to pressure a foreign country into providing that assistance.

Dershowitz, then offered yet another defense; it’s all subjective: “The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the President was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase, abusive [sic, abuse of] power, as a constitutionally permissible criterion for the removal of a president.”  Apparently that is intended to state that the motives must be ignored, that there can be no proof of them, only opinions .  Nonsense; in the criminal law of which he is so fond, intent often is an issue.

Several Republican Senators said foolish and irresponsible things, but Senator Lamar Alexander took the prize for the most eloquent summary of the cynicism and illogic of their position:

There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a 'mountain of overwhelming evidence.'

                                                          ***

It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation.

Right; the case has been proved, and Trump should be removed.  Oh, no:

The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday. . . . Our founding documents provide for duly elected presidents who serve with “the consent of the governed,” not at the pleasure of the United States Congress. Let the people decide.⁷

His statement acknowledges proof of the offense then rewrites the Constitution, expunging the bothersome impeachment provisions.  His call to let the people decide is, in addition to being a mechanism of avoidance, yet another irony, given that the Republican Party is diligent in denying fair elections.

     Senator Romney took his responsibility more seriously.  He disposed of the claims that a crime must be proved and that all grounds for impeachment must be listed:

The historic meaning of the words “high crimes and misdemeanors,” the writings of the founders and my own reasoned judgment convince me that a president can indeed commit acts against the public trust that are so egregious that while they’re not statutory crimes, they would demand removal from office. To maintain that the lack of a codified and comprehensive list of all the outrageous acts that a president might conceivably commit renders Congress powerless to remove such a president defies reason.

     He summarized the case against Trump in the first count, abuse of power:

The president asked a foreign government to investigate his political rival. The president withheld vital military funds from that government to press it to do so. The president delayed funds for an American ally at war with Russian invaders. The president’s purpose was personal and political. Accordingly, the president is guilty of an appalling abuse of public trust . . .Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one’s oath of office that I can imagine.⁸

     Sadly but unsurprisingly, Senator Romney stood alone in his Party in voting for conviction on that count. Lacking principles, backbones or both, his Republican colleagues avoided responsibility and gave Trump a pass, thereby approving the misuse of office for personal gain.  All the Republicans voted against count two, obstruction of Congress, continuing their pattern of subordination to the executive branch.  Together, the votes empower a rogue administration and pave the way for a future authoritative regime which may be headed by someone less foolish and ignorant, and therefore more dangerous, than the present incumbent.

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1. https://abcnews.go.com/Politics/mcconnell-work-total-coordination-white-house- impeachment-trial/story?id=67707430

2.  https://thehill.com/homenews/senate/478526-graham-urges-brief-impeachment-trial- end- this-crap-as-quickly-as-possible

3. Starr quotes are taken from: https://www.rev.com/blog/transcripts/trump-impeachment- lawyer-defense-argument-transcripts-monday-january-27-ken-starr-purpura-raskin

4. Dershowitz quotes are taken from https://www.rev.com/blog/transcripts/alan-dershowitz- defense-argument-transcript-trump-impeachment-trial-january-27

5. https://www.washingtonpost.com/opinions/alan-dershowitz-willfully-ignores-the precedent- of-nixons-articles-of-impeachment/2020/01/29/73c8e6a6-42cb-11ea-aa6a-083d01b3ed18_story.html

6.https://www.usatoday.com/story/news/politics/2020/01/23/impeachment-trial-nadler- plays-clinton-trial-video-lindsey-graham/4555925002/

7. https://www.cnn.com/2020/01/30/politics/lamar-alexander-impeachment-witnesses-vote/index.html

8. https://www.nytimes.com/2020/02/05/us/politics/mitt-romney-impeachment-speech-transcript.html

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