Tuesday, December 17, 2019

Dershowitz on Impeachment

If you want a legal opinion, you should ask a lawyer. Today, we turn to eminent barrister Alan Dershowitz for an opinion on the House of Representatives’ articles of impeachment. Most especially, we are here concerned with the second article, which accuses the president of obstructing Congress by failing to comply with Congressional subpoenas of White House officials. The issue also extends, Dershowitz says, to subpoenas involving President Trump’s tax records.

Well, lower federal courts have decided that the President must comply with the subpoenas. Now, however, the Supreme Court has chosen to hear the cases, and thus to determine who is right and who is wrong.

Dershowitz explains that this makes the second article of impeachment null and void. He recommends that the Democrats drop it. Fat chance that.

In his words:

The decision by the Supreme Court to review the lower court rulings involving congressional and prosecution subpoenas directed toward President Trump undercuts the second article of impeachment that passed the House Judiciary Committee along party lines last week.

That second article of impeachment charges President Trump with obstruction of Congress for refusing to comply with congressional subpoenas in the absence of a final court order. In so charging him, the House Judiciary Committee has arrogated to itself the power to decide the validity of its subpoenas, as well as the power to determine whether claims of executive privilege must be recognized, both powers that properly belong with the judicial branch of our government, not the legislative branch. The House of Representatives will do likewise, if it votes to approve the articles, as is expected to occur on Wednesday.

Thus, the question of whether the president can claim executive privilege remains undecided until the Supreme Court decides it next summer. By drafting the second article of impeachment in terms of an undecided issue, the House Judiciary Committee has granted itself the extra-constitutional authority to decide the case.

Dershowitz supports the Trump position, which is that the proper place to decide whether or not he must comply with the subpoenas is the judiciary. Ultimately, the Supreme Court.

President Trump has asserted that the executive branch, of which he is the head, need not comply with congressional subpoenas requiring the production of privileged executive material, unless there is a final court order compelling such production. He has argued, appropriately, that the judicial branch is the ultimate arbiter of conflicts between the legislative and executive branches. Therefore, the Supreme Court decision to review these three cases, in which lower courts ruled against President Trump, provides support for his constitutional arguments in the investigation.

The important point, Dershowitz argues, is that the court has chosen to hear the case. This means that the judiciary, not a Congressional committee, should decide. This means that the second impeachment article had no basis in the Constitution. But, neither did the first, the article that accused the president of abuse of power by seeming to set up a quid pro quo with the Ukraine over military aid:

Even if the high court were eventually to rule against the claims by President Trump, the fact that the justices decided to hear them, in effect, supports his constitutional contention that he had the right to challenge congressional subpoenas in court, or to demand that those issuing the subpoenas seek to enforce them through court.

It undercuts the contention by House Democrats that President Trump committed an impeachable offense by insisting on a court order before sending possibly privileged material to Congress. Even before the justices granted review of these cases, the two articles of impeachment had no basis in the Constitution. They were a reflection of the comparative voting power of the two parties, precisely what one of the founders, Alexander Hamilton, warned would be the “greatest danger” of an impeachment.

As we watch young Democratic politicians announce their support for the articles of impeachment, we ought to recognize, with Dershowitz, that theirs is merely an expression of dislike for the president. Their sanctimonious hypocrisy shows no respect for the Constitution, for the rule of law or for American history.


Jim Sweeney said...

Dershowitz is surely right as to the 2nd article and McConnell should move to dismiss that early on.

On the other article, a trial should be conducted so that Trump's story, evidence, witnesses and cross-examination of adverse witnesses is available for all to hear.

Jim Sweeney

UbuMaccabee said...

I'd claim that since Schumer has stated that there is not enough evidence to conduct a trial in the Senate, all of it is dismissed and it goes back to the House. Force the House to redo the whole thing, but with a formal charge of impeachment in judiciary, with Nadler presiding, and with it, all the rights and protections afforded to the Republicans to call witnesses with the power of subpoena and to question hostile witnesses. What they did was move the thing to intelligence so they could avoid filing an official inquiry of impeachment—and with it, they lost the power to issue a meaningful subpoena. They got to control the narrative—but still lost.

And the Dems do not want to go to court and demand their non-subpoenas be honored; the court would tell them they have the power, and it is under a formal impeachment inquiry in judicial. And that levels the playing field.

If this were done in a fair playing field, the Dems would get crushed and they know it. They got crushed trying to cheat.

They’d drop the case and blame it on the Senate GOP and the media would form the echo chamber as always. The media will blame GOP no matter what.

Stay focused on FISA. That's where the action is. And keep on Ukraine corruption; FISA and Ukraine are inextricably linked together.