Read Ed’s post from earlier this afternoon for the background here. Quickie version: Dershowitz is going to argue on Trump’s behalf at the trial that there’s no crime in any meaningful sense in what he did with Ukraine, even if the Democratic theory of a quid pro quo is entirely true. Adam Schiff went on TV yesterday and called that an “absurdist” idea. Then CNN dug up a clip of Dershowitz from 1998, during the Clinton impeachment saga, in which he appeared to contradict his current position. “It certainly doesn’t have to be a crime,” said Dersh at the time about grounds for impeaching a president. “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.”
However, in the same clip he went on to say that presidents shouldn’t be impeached except for “great offenses of state,” borrowing some British terminology. Today, in response to the uproar over the old CNN clip, he insisted that he’s saying the same thing now that he said then:
There is no inconsistency between what I said during the Clinton impeachment and what I am saying now. I said then that there doesn’t have to be a “technical“ crime. I have said now there must be “criminal-like” conduct, or conduct “akin to treason and bribery.”
— Alan Dershowitz (@AlanDersh) January 20, 2020
It’s true, he referred to “criminal-like conduct,” not statutory crimes, as proper grounds for impeachment in his CNN interview yesterday. We can split hairs about whether that’s meaningfully different from what he said 20 years ago but his point in both cases is clear enough. You don’t impeach a president lightly. If you’re going to go nuclear on the executive branch, you need misconduct as grave as treason or bribery to justify it.
Which is unobjectionable. Of course presidents shouldn’t be impeached lightly. Whether you prefer Dersh’s concept of “criminal-like conduct” or House Dems’ invocation of “abuse of power,” certainly not all presidential behavior is impeachable. Only the big stuff.
My question for Dershowitz is, exactly how high is the bar to qualify as “big stuff”? I haven’t read his book but law prof Josh Chafetz claims this is a fair, in-context quote from it:
For everyone asking whether this is “real”–i.e., really from Dershowitz: yes. This is from his 2019 book, _The Case Against the Democratic House Impeaching Trump_, via Google Books: pic.twitter.com/irePAatKPI
— Josh Chafetz (@joshchafetz) January 19, 2020
If the president decided to allow the United States to be invaded due to some cockamamie irredentist belief he harbored on another country’s behalf, I’m thinking that would be plenty close enough to out-and-out treason to amount to “criminal-like conduct.” Even if it weren’t, Congress would be derelict in its own duty to represent the will of the people if it stood by and allowed an enemy power to swallow up U.S. territory because the president had somehow convinced himself that he shouldn’t defend the country’s sovereignty in this case for whatever reason.
They’d impeach and they’d be right to, whether or not there’s a statutory crime or “criminal-like conduct” or however you care to define it. Impeachment would be a “break glass in case of emergency” option in that scenario: Although normally we let the president serve his full term, there are some abuses of power that require an immediate intervention upon their being discovered, where it’s simply too dangerous to let the president continue in office.
Which sounds a lot like what 1998 Dershowitz believed. But then how the hell did 2019 Dershowitz come up with the idea that it’s not an impeachable offense — a supreme dereliction of duty — for the president to let Russia invade?
That would pose “a great danger to our liberty,” last I checked.
The fact that Dersh has raised the bar that high makes me think that, for all intents and purposes, he really does believe that only clear-cut statutory crimes of the gravest import will suffice to remove a president. In theory he thinks gross misconduct of any sort will justify it, whether criminal or not, but in practice he’s willing to shrug at giving Russia the green light to take back Alaska because that misconduct somehow isn’t gross enough.
The weirdest part of arguing that only “criminal-like conduct” will suffice to justify impeachment is that it’s not hard to make that case in the Ukraine matter. House Democrats even considered charging Trump with bribery instead of the more generic “abuse of power,” remember. As an analogy, imagine that a company applied for a building permit in a city and the mayor decided to block it unless the company gave him some insider information that he could use to trade their stock. That would be clear-cut bribery, an attempt by a public official to corruptly enrich himself personally by using the perquisites of his office. The Democratic case against Trump makes the same accusation, that the president tried to block a public benefit to Ukraine unless they agreed to provide some information about Joe Biden that would directly benefit Trump personally in next year’s election. It’s fine to find him innocent of the charge based on the evidence but I don’t know how Dersh arrives at the idea that that’s not sufficiently “criminal-like.”
What he really means, I think, is that the alleged corruption in the Ukraine matter is just too petty. We impeach for great offenses of state, remember? Not supposedly small-ball stuff like squeezing a foreign power for dirt on the Democratic frontrunner. That’s a minor offense of state, I guess he’d say, even though allowing it would effectively encourage every president to treat other countries as a de facto oppo research firm against their opponents ahead of every election.
It’s weird to me that this weak argument about “criminal-like conduct” is somehow so compelling to Trump and his team that an entire hour needs to be carved out of the trial to let Dershowitz make it. The basic point, that only the worst presidential misconduct should warrant impeachment, is fair enough but Congress is already keenly aware of that. There’s a reason why House Democrats never impeached the much-hated George W. Bush and why House Republicans didn’t impeach the much-hated Barack Obama. The House has to face the voters every 24 months; if they impeach the president for frivolous reasons, not only is that effort likely to fail in the Senate but they’re apt to be punished severely by voters on Election Day. (That’s Pelosi’s great fear about the current impeachment, of course.) The argument over whether “high crimes and misdemeanors” amounts to “criminal-like conduct” or something more, or less, is silly in that sense. Congress can and will impeach and remove the president to the extent that it believes it has public support to do so. If 75 percent of the country were up in arms about Trump’s quid pro quo with Ukraine, removal would be a real possibility right now whether or not there was “criminal-like conduct.”
The weirdest part is that Senate Republicans have argued repeatedly, and correctly, that impeachment is a political process. That’s why McConnell’s admission that he’s not impartial as a juror isn’t disqualifying. Schumer’s not impartial either! There’s not even an impartial judge at the trial to rule on evidentiary matters: It’s the Senate, via a majority vote, that decides on whether and which witnesses are called, not John Roberts. Politics dictates the process and politics will dictate the result. We’re all big boys and girls who understand that — except when Trump allies like Dershowitz start looking for ways to get him off the hook. Suddenly what qualifies as a “high crime or misdemeanor” becomes a highly legalistic analysis about “criminal-like conduct.” In reality a high crime or misdemeanor is whatever a supermajority of the electorate deems it to be. If Trump did something so terrible that a wide majority of the public supported ousting him immediately for it, he’d be in trouble right now. But they don’t, so he isn’t. Impeachment is a political process.
Go read Justin Amash’s rebuttal to Dershowitz on Twitter, quoting extensively from the Founders. Exit question: Republicans would oppose Trump letting Russia retake Alaska, right? I can’t tell anymore exactly how loyal MAGA fans are expected to be.