The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  The remaining criteria for impeachment—“other crimes and misdemeanors”—are not defined. Nor are procedural requirements for conviction of these crimes set out, except insofar as the Constitution and the Bill of Rights establish procedural requirements for conviction of all crimes in the courts of law.

  The Constitution is not explicit as to whether the procedural requirements for conviction of treason apply only to criminal trials in courts of law, or as to trials in the Senate for impeachment. Nor is it clear from the text of the Constitution whether the general procedural protection in criminal trials for bribery or other high crimes and misdemeanors are required for an impeachment trial based on those crimes in the Senate. These general procedural protections include the privilege against self-incrimination contained in the Fifth Amendment and the right to be “confronted with the witnesses against him” as required by the Sixth Amendment. It is clear that other procedural safeguards—such as indictment by grand jury and trial by petit jury—are not applicable to impeachment since the Constitution provides that impeachment, which is the counterpart of indictment, is by the House of Representatives and the “trial” is by the members of the Senate. Article III, §3 explicitly states that the “trial of all crimes, except in cases of impeachment, shall be by jury….”

  The procedures for impeaching and trying a president are incompletely articulated in the Constitution. Remarkably, the text says nothing at all about the procedures for impeachment by the House. It does not even tell us whether impeachment requires a simple majority of House members or the kind of supermajority—two-thirds—required for removal by the Senate. By implication and precedent, a bare majority can impeach. The substantive criteria for impeachment are the same as for removal—treason, bribery, or other high crimes and misdemeanors—but the standards for establishing these criteria are not set out in the Constitution. Nor is it set out whether standards for impeachment are the same as for removal. If impeachment by the House and conviction by the Senate were to be analogized to indictment by a grand jury and conviction by a trial judge or a petit jury, the standards would be significantly different: probable cause for impeachment, and beyond a reasonable doubt for conviction. But it isn’t clear whether this analogy is apt.4

  Nor is it clear whether the subject of the impeachment—the president or other official—has any procedural rights in the House. May he, or his lawyer, cross-examine adverse witnesses? May he testify—or refuse to testify if subpoenaed? May his lawyer file legal briefs, argue orally, or make motions? Compel the production of favorable witnesses? Submit documentary evidence?

  Although the text of the Constitution provides little guidance as to the rights of the impeached official when he is on trial in the Senate, the fact that the Constitution speaks in terms of “try” (“The Senate shall have the sole power to try all impeachments”) and “conviction” (“No person shall be convicted without the concurrence of two thirds of the members present”)—suggests that at least some of the basic rights and procedural safeguards traditionally required when a person is tried and convicted of crimes must be accorded to the defendant in an impeachment trial. But the text does not explicitly tell us which, if any, of these safeguards are applicable in Senate removal trials.

  Precedent suggests that the impeached “defendant” has the right at his Senate trial to retain counsel, to produce and confront witnesses, to testify on his own behalf, and to have the benefit of a presumption of innocence (despite his impeachment by the House). It is unclear whether other procedural safeguards such as the privilege against self-incrimination, the Fourth Amendment exclusionary rule, and the protection against ex post facto laws—laws that criminalize acts that were not criminal at the time they were committed—are applicable. It is clear that the protection against bills of attainder is not applicable since impeachment and removal are the functional equivalents of a bill of attainder: they are legislative actions directed against a single individual. Moreover, the Constitution explicitly provides partial protection against the consequences traditionally associated with attainder: Article I, §2 provides: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold [other federal office].”

  There is one intriguing provision of the Constitution, applicable only “when the President of the United States is tried.” In such cases, and only in such cases, “the chief justice shall preside.” (Article II, §3)

  This provision is intriguing because it introduces a judicial element into what is otherwise (and in all cases of non-presidential impeachments and trials remains) a legislative check and balance on the executive and judicial branches (yes, judges and even justices are subject to legislative impeachment and removal). Hamilton characterized the decision to have the chief justice preside as a compromise between a trial in front of the Supreme Court and a trial in front of the Senate:

  Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided.5

  The very concept of a compromise suggests that the inclusion of the chief justice was supposed to introduce some sort of judicial element into the Senate trial. But what is the nature of this judicial element, and what is the precise role of the chief justice at a Senate trial of the president? Is it merely symbolic? Is the presence of a robed justice (actually “judge”—the Constitution doesn’t speak of justices) supposed to lend solemnity to the trial of a president? Does he rule on the admissibility of evidence? And if so, by what criteria? Common law? Rules that govern the courts? Special rules established by the Senate? Is he supposed to rule on motions submitted by the president and his lawyers? By the prosecution? Are his rulings subject to challenge and vote by the Senate? The Constitution provides no guidance.

  The most fundamental and difficult question is whether the chief justice is empowered to rule on a motion to dismiss the charges on the ground that the Bill of Impeachment passed by the House does not charge an impeachable offense. Imagine a situation in which a president were to be impeached not for treason, bribery, or other high crimes and misdemeanors, but rather for “malpractice or neglect of duty”—a standard explicitly rejected by the Framers—or some other violation of the public trust not included among the enumerated criteria. Indeed, one does not have to imagine such a situation, because that is essentially what occurred with regard to our first presidential impeachment and removal trial. President Andrew Johnson was impeached in 1868 for dismissing Secretary of War Edwin Stanton without the approval of the Senate as required in the Tenure of Office Act6 and for attacking congressional policies on the Reconstruction of the South.7

  Now imagine what would have happened if Johnson’s lawyers had made a motion to dismiss the charges in the Bill of Impeachment on the ground that they did not meet the constitutional criteria for impeachment and removal because they did not accuse the president of committing an act of treason, bribery, or any other high crimes and misdemeanors.8

  What options, obligations, or powers would the chief justice have if faced with such a motion? Once again, if we analogize a Senate trial to an ordinary criminal trial, a judge would be obligated to rule on the motion, and if he concluded that the indictment did not charge a crime under the federal criminal code—for example, if a defendant had been indicted for sexual harassment, which is a civil tort but not a crime—he would be obligated to dismiss the charges. Could a chief justice presiding at the Sena
te trial of a president do that? Would he be obliged to? If he did, could his dismissal be overruled by the Senate? Could the Senate simply refuse to accept the chief justice’s ruling? Could it be appealed to the full Supreme Court?

  We don’t know the answers to these and other hypothetical questions, because the Framers of our Constitution did not provide textual answers. Nor did they provide much in the way of interpretative information in contemporary debates or discussions. Neither the debates over the Constitution nor The Federalist Papers give much guidance as to the anticipated role of the chief justice.

  There are, however, several textual provisions of the Constitution that are relevant to the claim made frequently and stridently by scholars, commentators, and advocates with regard to the impeachment and removal process: that it is entirely a “political” process, ungoverned by the rule of law or legal constraints.9

  The most extreme and reductionist articulation of this position was made by former President Gerald Ford, on April 15, 1970, when he served as Minority Leader of the House: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” This view, which was expressed in the context of an unsuccessful effort to impeach liberal Supreme Court Justice William O. Douglas, simply picks and chooses among the provisions of the Constitution that govern impeachment and removal. It accepts the two-thirds requirement for removal, while ignoring the explicitly enumerated substantive requirements. In this respect, it would be no different from saying that a president (or other official) could be removed on the basis of a majority—rather than two-thirds—vote by the Senate for conviction on charges of treason or bribery.

  Imagine a case of a tyrannical president who committed numerous high crimes and misdemeanors that endangered our nation greatly and that clearly justified impeachment—but the Senate vote to remove him fell a few votes short of the required two-thirds. No reasonable construction of the constitutional text would justify removal. How would ignoring the two-thirds requirement be different than ignoring the substantive criteria? The whims of Congress cannot overrule the actual words of the Constitution.

  Nor is Ford the only member of Congress to have expressed this extreme view. Recently, Congresswoman Maxine Waters, in demanding Trump’s impeachment, said the following: “Impeachment is whatever Congress says it is. There is no law.”10

  Other commentators have taken less extreme positions, but still ones that largely ignore the criteria expressly enumerated in the Constitution. The distinguished American University history professor Allan Lichtman, for instance, argues that Trump could be impeached based on his “war on women,” as well as on his climate change policy, which Lichtman considers a “crime against humanity” worthy of impeachment.11 It would be dangerous to the stability of our system of government—and in direct defiance of the constitutional text and debates—if we could impeach a president based on mere policy disagreements. The founding fathers considered criteria of abuse of office and flatly rejected it. At the Philadelphia Convention, James Madison objected to a proposal that would have made “maladministration” sufficient grounds for impeachment. The term was “so vague,” he said, that it would be “equivalent to a tenure during pleasure of the Senate.”12

  These expansive views of the criteria for impeachment ignore several provisions of the constitutional text. These provisions include the following: (1) the articulation and listing of explicit criteria for impeachment and removal; (2) the requirement that all senators “when sitting for a removal trial shall be on Oath or Affirmation,” (Article II, §3); and (3) and the requirement that the chief justice preside at the trial of a president.

  Let us begin with the first provision—the listing of specific criteria for impeachment and removal.

  Not surprisingly, my colleague and friend Laurence Tribe and his coauthor Joshua Matz make a brilliant case in their book To End a Presidency for a more expansive view of the criteria for impeachment based on their concept of a “living Constitution” that must adapt to changing times and new developments. (“Now and as always, the Constitution belongs to the living.”13) I agree with the living Constitution approach when it comes to open-ended terms that invite changing interpretations. These terms include “due process of law,” “equal protection” of the laws, “freedom of speech,” “cruel and unusual punishments,” “establishment of religion,” and others. There are, however, certain provisions of the Constitution that are not “living” and subject to changing interpretation. There is no lawful basis, for example, for changing the age criteria for serving as president, senator, or representative, or for changing the life tenure of judges, just because we live longer. There are provisions in the Constitution that fit the late Antonin Scalia’s pithy term “dead Constitution”—words that cannot be altered or reinterpreted except by amendment. The question is whether the enumerated criteria for impeachment and removal are alive or dead. Surely the definition of treason is dead, because the constitutional protection against ex post facto laws would preclude expanding the constitutional definition and applying it retroactively to a public official in the context of a criminal prosecution. (It might be different if Congress enacted a broader definition of treason and applied it prospectively, though the defendant could claim reliance on the constitutional limitation: “Treason shall consist only …”). I believe that the Constitution would also preclude expanding the constitutional definition of treason in the context of impeachment and removal. Congress may be free to interpret the words of the definition of treason more expansively—words such as “adhering” or “giving aid and comfort”—but it would not be free to ignore them. Professor Richard Painter, who ran for the Democratic nomination for senator from Minnesota on an “Impeach Trump” platform, absurdly argued that it is “treason” for a president or his campaign to “collude” with a foreign power to gain electoral advantage.14 Painter should read the words of the Constitution, rather than making up crimes for partisan and personal advantage. Members of Congress (or candidates) are not free to expand the constitutionally limited definition of treason any more than they could ignore the requirement of a two-thirds vote.

  Nor would Congress be free, in my view, to ignore the words of the other criteria, “bribery or other high crimes and misdemeanors,” though it could reasonably interpret them in accordance with the rule of law.

  When the Constitution speaks in clear terms, its plain meaning must prevail over other considerations. It’s hard to imagine a clearer set of words than those governing impeachment: “The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” The text speaks clearly of crimes, enumerating treason, bribery, and other high crimes and misdemeanors. It requires a trial in the Senate and conviction of one or more of those crimes. Moreover, Article III, §2(3) says that “the trial of all crimes, except in cases of impeachment, shall be by jury” (emphasis added). This surely implies that cases of impeachment require crimes. Finally, Article II, §2(1) authorizes the president to grant pardons “for offenses against the United States, except in cases of impeachment.” Since the president’s pardon power extends only to crimes (including criminal contempt), this, too, would suggest that impeachment requires crimes. It is difficult to argue reasonably from the text that these words can be interpreted to mean that a person can be impeached for anything less than a crime.

  Professors Tribe and Matz make a clever textual argument employing the Latin phrase ejusdem generis. Here is their argument:

  In thinking about what types of offenses those might be, it’s useful to invoke ejusdem generis. While this may sound like a spell from Harry Potter, the reality is no less exciting: it’s a canon of legal interpretation. (Okay, maybe that’s
less exciting.) Ejusdem generis says that if we list a series of items and then include a catchall phrase at the end, that phrase includes only things similar to the items that precede it. Courtesy of Justice Antonin Scalia and his co-author Bryan A. Garner, here’s a helpful example of ejusdem generis: “If one speaks of ‘Mickey Mantle, Rocky Marciano, Michael Jordan, and other great competitors,’ the last noun does not reasonably refer to Sam Walton (a great competitor in the marketplace) or Napoleon Bonaparte (a great competitor on the battlefield). It refers to other great athletes.”

  In our case, the relevant list is “Treason, Bribery, or other high Crimes and Misdemeanors.” Invoking ejusdem generis, we can presume that “high Crimes and Misdemeanors” are offenses of the same general type as treason and bribery. Treason causes the gravest possible injury to the nation and reflects a betrayal of the first order. Bribery is the ultimate corruption of office—and exercise of power for private benefit, not public good. Both offenses drastically subvert the Constitution and involve an unforgiveable abuse of the presidency. It’s inconceivable that someone who committed these misdeeds could ever again be trusted with “the Executive Power.” Both offenses are also momentous they have the capacity to inflict extraordinary harm on the nation, and the discovery that they occurred could disqualify any president as a viable national leader. To qualify as impeachable, offenses must share close traits.

  Treason and Bribery have one more thing in common: they require proof of intent.15

  The logical fallacy of their argument, as applied to the constitutional criteria for impeachment and removal, should be clear to everyone. Yes, the categories have several things in common, including the requirement of intent, betrayal, and serious misconduct. But the authors leave out the most obvious and most salient element that every component of the enumerated list shares: namely, that the impeached person must be convicted, after a trial, of a crime. Treason is a crime; bribery is crime; high crimes are crimes; and misdemeanors are crimes. Indeed, Blackstone, whose commentaries were canonical to the founding lawyers, wrote of a category of crimes that were “capital misdemeanor[s].” “To steal a pig or a fowl, which is easily done, was a capital misdemeanor, and the offender was punished with death.”16