The Case Against the Democratic House Impeaching Trump
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Also by Alan Dershowitz
The Case Against Impeaching Trump
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Terror Tunnels: The Case for Israel’s Just War Against Hamas
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Pre-emption: A Knife That Cuts Both Ways
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The Case for Israel
America Declares Independence
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Shouting Fire: Civil Liberties in a Turbulent Age
Letters to a Young Lawyer
Supreme Injustice: How the High Court Hijacked Election 2000
Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law
Just Revenge
Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis
The Vanishing American Jew: In Search of Jewish Identity for the Next Century
Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case
The Abuse Excuse: And Other Cop-Outs, Stories and Evasions of Responsibility
The Advocate’s Devil
Contrary to Popular Opinion
Chutzpah
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Copyright © 2019 by Alan Dershowitz
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ISBN: 978-1-5107-4770-8
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Printed in the United States of America
Dedication
This book is respectfully dedicated to an endangered species: genuine civil libertarians who pass the “shoe on the other foot” test.
Acknowledgments
My appreciation to my wife, Carolyn Cohen, who reads, reviews, and corrects everything I write, and to Elon Dershowitz, Jamin Dershowitz, Ella Dershowitz, and others who critiqued my words. Also, thanks to Harvey Silverglate and Alan Rothfeld for reviewing and critiquing the manuscript.
This book could not have been written without the valuable assistance of my research team, Aaron Voloj Dessauer, Jennifer Barrow, and Hannah Dodson, who researched and contributed to the text and footnotes, and my assistant, Maura Kelley, who deciphered and typed my handwritten drafts and provided her usual invaluable assistance. You all know how much I appreciate your extraordinary efforts. A special thanks to my agent, Karen Gantz, who guided me through the process.
Also, my thanks to Michael Campbell, Tony Lyons, and Bill Wolfsthal of Skyhorse Publishing for their speed and professionalism in getting the book ready for print.
Author’s Note
Part I of the following text was originally printed in The Case Against Impeaching Trump (Hot Books, an imprint of Skyhorse Publishing, 2018). In the months since the original publication, I have only seen the issues discussed therein worsen. In hopes of contributing to a more tolerant, less extreme, more nonviolent, and more critical America, I’ve added to, updated, and revised my arguments and published them here. For the sake of democracy, I hope they are widely read.
Contents
PART I:
THE CONSTITUTIONAL CASE FOR IMPEACHING TRUMP DOESN’T PASS THE LEGAL TEST
Opening Statements: The Age of Hyper-Partisan Politics
The Partisan Shoe Is on the Other Foot
When Politics Is Criminalized
When Criminal Law Is Weaponized for Political Gain
I Haven’t Changed. They Have.
Trump: Accusations and Realities
A Partisan Rush to Prosecute Trump
Why Donald Trump Can’t Be Charged with Obstruction
“Corrupt Motive” Is Not a Proper Criterion for Prosecuting a President
The Ruling Shows I’m Right on Trump and Corruption
No One Is Above the Law
Does Donald Trump Have Congressional Immunity?
Rod Rosenstein Should Not Be Fired, but Should He Be Recused?
On Criminality and Presidential Advice
Mueller and the Need for a Nonpartisan Commission
Why Did Mueller Impanel a Second Grand Jury in DC?
Flynn Plea Reveals Weakness, Not Strength, of Mueller Probe
Trump Doesn’t Need to Fire Mueller—Here’s Why
Desire to “Get Trump” Risks Death of Civil Liberties
Does the President Have the Right to Expect Loyalty from His Attorney General?
The Nunes FISA Memo Deserves More Investigation. Time for a Nonpartisan Commission
Trump Is Right: The Special Counsel Should Never Have Been Appointed
Accountability, Civil Liberties, and Michael Cohen
The President Has a Special Obligation to Condemn the Racist Right
Enough with the Anti-Trump McCarthyism!
Targeting Trump’s Lawyer Should Worry Us All
For ACLU, Getting Trump Trumps Civil Liberties
The Final Nail in the ACLU’s Coffin
“Firewalls” and “Taint Teams” Do Not Protect Fourth and Sixth Amendment Rights—We Need a New Law to Protect Lawyer-Client Relations
The Sword of Damocles
The Epic Struggle for Michael Cohen’s Soul and Testimony
Federal Judge Rightly Rebukes Mueller for Questionable Tactics
Trump’s Legal Defense and Movi
ng Forward
Trump’s Better off Litigating Than Testifying
The Trump Defense
You Won’t Have Any Doubt at the End of This
Can Trump Pardon Himself? The Answer Is: No One Actually Knows
Trump Will Not Pardon Himself or Testify in Sex Cases
People Confuse My Advocacy
Tweeting with POTUS
Conclusion, Part I
PART II:
THE POLITICAL CASE FOR IMPEACHING TRUMP DOESN’T PASS THE “SHOE ON THE OTHER FOOT” TEST
In Defense of Equally Applying the Law and Letting Our System Work
Federal Judge Agrees Nonpartisan Commission Beats Special Counsel
Jeff Sessions Validates Chant to Lock Up Hillary Clinton
Trump’s Bid to Silence Dissent Violates Spirit of First Amendment
Impeaching Rosenstein May Hurt Trump
Who Leaked the Trump Tape?
An Obstruction Case against Trump Would Be a Civil Libertarian Nightmare
Dangers to the First Amendment If Foreign Campaign Dirt Is Criminal
Is “The Truth” the Truth When It Comes to Prosecutors?
Did President Trump Violate Campaign Finance Laws?
Who Is Guarding the Guardians?
Should It Be Illegal for Prosecutors to “Flip” Witnesses?
Will Mueller Subpoena Trump?
Trump Is No Unindicted Co-Conspirator
Mueller Report and Trump Response Should Be Issued Simultaneously
On Tolerance, Hyper-partisanship, and our Deteriorating Public Discourse
Maxine Waters Does Not Speak for Democrats or Liberals
The Hard-Left’s Desire to Live in a Political Silo When It Comes to Trump
Zealous Dems Fail to Hear Out Trump’s Constitutional Rights
Coarseness, Bigotry, and Threats on Both Sides of Trump Divide
How the Hard-Left Only Helps the Republicans and Donald Trump
Immigrants Who Change America Are Its Lifeblood
Kavanaugh, the Presumption of Innocence, the Court of Public Opinion, and the Integrity of our Institutions
A Self-Inflicted Wound to Judicial Independence
It All Depends on What Kind of Conservative Trump Chooses
The SCOTUS Confirmation Process Has Gotten Out of Hand
Six Rules for the Ford-Kavanaugh Hearings
How to Decide Who to Believe In Kavanaugh, Rosenstein Drama
Burden Is on Avenatti To Show Proof, or Face Consequences
This Is No Mere “Job Interview”
What If Kavanaugh Were a Liberal Muslim Accused of Terrorism?
No One Won During the Brett Kavanaugh Confirmation
Should Kavanaugh Be Stopped from Teaching at Harvard Law School?
ACLU’s Opposition to Kavanaugh Sounds Its Death Knell
The Shoe Test in the Media and Foreign Relations
Biased Media Complicit as Hamas Sends Women, Children to Front Line
NBC Demonizes John Bolton, Gatestone
Chomsky Calls Russian Interference a Joke—and Guess Who He Blames?
If Britain Wants to Show Its “Moral Backbone,” It Must Reject Jeremy Corbyn
Why Did the Clintons Share the Stage with Farrakhan?
Refusing Study in Israel Is a Bitter Lesson in Discrimination
Impeachment Is Not the Answer
Democrats, Don’t Try to Conduct a Revenge Inquisition
Justice Kavanaugh Should Not Be Impeached or Investigated
Don’t Seek Partisan Advantage from Pipe-Bomb Arrest
Shootings, Bombs Reflect a Deeper Malady
Both Sides Are Failing the Shoe on the Other Foot Test
Conclusion, Part II
Notes, Part I
Notes, Part II
Part I:
The Constitutional Case Against Impeaching Trump Doesn’t Pass the Legal Test
As a liberal democrat who worked hard to try to win back the House of Representatives, I urge my fellow Democrats not to shoot themselves in the foot by trying to impeach President Trump. As soon as it was announced that the Democrats had won control of the House, radical leftists were urging them to impeach President Trump. In an op-ed in the New York Times entitled “Why Democrats Must Impeach the President,” billionaire Democratic activist Tom Steyer demanded that “the new Democratic House majority must initiate impeachment proceedings against him as soon as it takes office in January.” Some newly elected Democratic members of Congress who ran on the promise to impeach President Trump are also demanding that articles of impeachment be prepared, as are some in the media.
There are several reasons why this would be a mistake. The first is constitutional: it would be unconstitutional to impeach Trump unless there was substantial evidence that, while in office, he committed treason, bribery, or other high crimes and misdemeanors. Second, it would be a costly political blunder for the Democratic members of Congress who now control the House to fritter away their hard-earned mandate by engaging in a futile effort to remove President Trump. The effort would almost certainly fail unless dramatic new evidence of high crimes and misdemeanors were to emerge, because it would be impossible to secure the two-thirds supermajority in the Senate that is required to remove a sitting president. Finally, it would be hypocritical in the extreme for Democrats to do to President Trump what the Republicans did to President Bill Clinton: namely, impeach him for conduct that did not constitute a constitutionally impeachable offense. Democrats, including me, railed against Republicans for impeaching Bill Clinton, as we did when Republicans threatened to impeach and/or “lock up” Hillary if she became president. Impeaching President Trump would not pass what I call the “shoe on the other foot test,” which I explain in Part II of this book.
The decision to impeach and remove a duly elected president is a momentous constitutional event. It has never occurred in our history as a nation, though the House of Representatives impeached both President Andrew Johnson (whose removal by the Senate was only one vote short of the two-thirds required for conviction) and President Bill Clinton (the Senate divided 50-50 along largely partisan lines). President Richard Nixon probably would have been impeached and removed had he not resigned.
If the formal process of removal is to have legitimacy, it must be done in strict compliance with the provisions of the Constitution. Despite frequent claims that the impeachment and removal process is entirely political, that is not the case. Removing a president requires that legal criteria, set out explicitly in the Constitution, must first be satisfied before political considerations can come into play. The impeached president must be found guilty and convicted by two-thirds of the Senate of “treason, bribery, or other high crimes and misdemeanors.”
I will argue in this book that if a president has not committed any of these specified crimes, it would be unconstitutional to remove him,1 regardless of what else he may have done or may do. If and only if he has committed at least one of these crimes may the House and Senate consider the political implications of impeaching and removing him. In other words, the commission of an impeachable crime is a necessary but not sufficient condition for a president’s removal. Put another way, the Constitution does not empower Congress to remove a president who has not committed an enumerated crime, and it does not require Congress to remove him even if he has committed such a crime. To that extent, and only to that extent, impeachment and removal are political in nature.
Those who argue that because the process is legislative rather than judicial, that it must be entirely political rather than also legal, ignore an important structural aspect of our constitutional system of separation of powers and checks and balances: namely, that all three branches of our government are bound by our Constitution.
The case against (or for) the impeachment of President Trump (or any other president) must, therefore, begin with the text of the Constitution. There are at least fifteen provisions of the Constitution and its twenty-six amendments that are relevant to impeachme
nt. Some are directly on point, such as the criteria for impeaching a president (which are the same for all federal government officials). Also directly on point are the procedures governing the trial of an impeached president, which are different in only one important respect from those of other impeached officials. The chief justice must preside at the trial of the only government official who is not, in the words of Professor Akhil Amar, “fungible”2—that is, whose duties are capable of being performed by another official. Other provisions are implicit or arguably relevant, but they, too, must be considered in making a case regarding impeachment.
Let us begin with what should be uncontroversial: the Constitution sets out explicit criteria for impeaching and removing “the President, Vice President, and all civil officers of the United States.” These criteria, as articulated in Article II, §4, are the following: “Treason, bribery, or other high crimes and misdemeanors.” Only one of those crimes—treason—is defined in the Constitution. It “shall consist only in levying war against [the United States] or in adhering to their enemies, giving them aid and comfort.” The critical words—“levying,” “war,” “adhering,” “enemies,” “aid” and “comfort”—are not further defined. Three procedural prerequisites for conviction of treason are enumerated: (1) “the Testimony of two Witnesses”; (2) “to the same overt act”; (3) or a “confession in open court.”3
The other specifically enumerated crime—bribery—is not defined in the Constitution, but Article I, §9, provides that no federal official “shall, without the consent of the Congress, accept any present emolument, office, or title of any kind whatever, from any King, Prince, or foreign state.” And Article II, §1, precludes the president from receiving “other emoluments from the United States or any of them.” Violation of these provisions was not explicitly made a crime or a ground for impeachment. Under the common law at the time of the Constitution, merely giving or accepting something of value did not constitute the crime of bribery unless it was specifically intended to influence a public official’s action. So it is unclear whether the word “bribery,” as used in the constitutional criteria for impeachment and removal, incorporates the “emoluments” clauses or is limited to the crime of bribery as defined at the time of the Constitution or by subsequent statutory enactments.