Dershowitz on Impeachment

Being as I am not conversant with constitutional law-- I didn’t need to tell you that-- I normally refrain from offering opinions on the impeachment inquiry now being undertaken by Congressional Democrats.

Since these same Democrats have been lusting after impeachment from the moment Trump was elected, they have no real credibility on the issue, Thus, for all the caterwauling about obstruction of justice and national security and foreign influence, you know, as I know, that they are merely throwing mud against the wall to see what sticks.

Anyway, we are happy to see that someone who does know his way around constitutional law has offered an opinion on the impeachment circus. Famed Harvard professor Alan Dershowitz weighs in on the question in the Wall Street Journal today.

We note that Dershowitz is a liberal Democrat and a Clinton supporter. We add that he has shown exemplary integrity throughout the Trump presidency, especially around the Russian collusion narrative… a precursor to the current Ukraine narrative. He has called things as he sees them, and has refused to bow to the will of the mob. 

In the interest of deliberation, Dershowitz returns to the Constitutional Convention and recalls the debates about impeachment. One thing was clear, James Madison did not want to write a provision whereby a president could be removed over political differences. He wanted the office of the president to be above politics.

Dershowitz writes:

At the Constitutional Convention of 1787, the Framers debated impeachment of a president. Some argued for the power of Congress to remove the president for “maladministration” or other open-ended terms that appeared in several state constitutions. Others, including James Madison, opposed such vague criteria, fearful that they would turn the republic into a British-style parliamentary system, in which Congress could remove a president over political differences—effectively a vote of no confidence. That, Madison argued, would be the “equivalent to tenure during pleasure of the Senate.”

As for the nature of an impeachable offense, the current Democratic version, articulated by the supremely inarticulate Rep. Waters, says that a high crime and misdemeanor is whatever Congress says is a high crime and misdemeanor. If that were true the process would be political, based merely on the will of the majority party.  

Hamilton, however, said that an impeachable offense must be a political offense. It must involve the conduct of one’s office:

Hamilton didn’t say the process of impeachment is entirely political. He said the offense has to be political. He continued: “The prosecution of [such offenses] will seldom fail to agitate the passions of the whole community, and to divide it into parties, more or less friendly, or inimical, to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side, or on the other; and in such cases, there will always be the greater danger, that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

If Hamilton’s words sound prescient, it is because he foresaw how the process of impeachment and removal could easily be exploited for political advantage, as Democrats are attempting now and Republicans tried to do when they impeached President Clinton in 1998. Hamilton was concerned that the decision to impeach and remove “the accused” be based not on “the comparative strength of parties,” but rather on “real demonstrations of innocence or guilt.” These words imply a quasi-legal process rather than an exclusively political one.

And Dershowitz cunningly adds that even if the president did commit impeachable offenses that does not mean that Congress must impeach him:

Even if a president did commit “treason, bribery or other high crimes and misdemeanors,” the House could decide on political grounds not to move forward on impeachment. The constitutional criteria are necessary for impeachment, but they do not necessitate it.

Dershowitz concludes:

The Framers, by rejecting open-ended criteria such as “maladministration” and substituting more specific and criminal-like criteria, sent a message to future generations: Impeachment should not be a political measure governed by “the comparative strength of parties.” It should be based on “the real demonstration of innocence or guilt” of “the accused.” It is left to Congress to be reasonable and conscientious in interpreting the words “treason, bribery or other high crimes and misdemeanors”—a tall order in our hyperpartisan age.

Reasonable and conscientious… looking at today’s impeachment inquiry these are the last words that would pop into mind.