The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  I am not making the case for President Trump’s reelection. Every citizen must make that political decision for him- or herself. I would be making the same case against impeachment had Hillary Clinton won and it was the Republicans who were urging her impeachment or prosecution for acts that did not constitute crimes. As I elaborate in the next section, for me, the test has always been “the shoe on the other foot.” (This is a colloquial variant on John Rawls’s “veil of ignorance” test.36) What criteria would you advocate if the shoe were on the other foot—if Hillary Clinton or Bernie Sanders had been elected and were being investigated? I insist that the criteria be the same.

  Of course, partisans always argue that the shoe doesn’t fit: partisan Democrats insist that Trump’s conduct is more impeachable than Clinton’s, and partisan Republicans think that Clinton’s is more impeachable than Trump’s. That’s not the point. The point is to agree on neutral criteria that would be equally applicable to all presidents.

  I agree with James Comey that voting is more democratic than impeaching, but even if I didn’t—even if I thought that impeachment would better serve the interests of democracy—I would oppose President Trump’s impeachment unless the criteria explicitly enumerated in the Constitution were proved beyond a reasonable doubt, following an impeachment and trial at which all relevant substantive and procedural protections were accorded the president. No one is above the law, but neither is anyone—including the president—beneath the law.

  If a controversial president is denied constitutional protections, then any citizen can be denied constitutional protections. That’s why this constitutional issue is so important to all Americans.

  The essays and interview transcripts that follow are derived from the many pieces I have written in national media, including for the New York Times, Wall Street Journal, Boston Globe, The Hill, Newsmax, Gatestone, Fox News, and others, as well as interviews on Meet the Press with Chuck Todd, This Week with George Stephanopoulos, and Tucker Carlson Tonight. In these columns and media appearances, I try to make the constitutional case against the impeachment and prosecution of President Donald J. Trump. I present them here, revised and modified, in hopes of provoking honest debate and contributing to the democratic process. Let the debate continue—civilly and on the merits, without personal attacks.

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  1 I was hoping to use the female pronoun after the 2016 election, but sadly that is not how it turned out.

  2 Akhil Amar. “On Impeaching Presidents.” 28 Hofstra Law Review 291, 293 (1999).

  3 Id.

  4 During the Clinton impeachment, senators were frequently referred to as “jurors.” Chief Justice William Rehnquist ruled that “the Senate is not simply a jury; it is a court in this case.” 145 Cong. Rec. 5, 279 (1999).

  5 Alexander Hamilton, The Federalist Papers, No. 65.

  6 Proceedings of the Senate Sitting for the Trial of Andrew Johnson President of the United States: On Articles of Impeachment exhibited by the House of Representatives, Art. I.

  7 Id. at Art. X.

  8 “The primary claim was that Clinton’s conduct, even if constituting perjury and obstruction, did not fall under the definition of high crimes and misdemeanors because this standard was restricted to conduct related to his office. White House lawyers argued that this conduct would not be indictable in a conventional case due to technical definitions of perjury and obstruction. Historically, a similar argument had been raised in the Johnson trial.” Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke L.J. 1, 102 (1999). “Johnson’s defenders argued both that an offense must be indictable and that it must be related to the office.” Id. at n. 484 (citing Michael Les Benedict, The Impeachment And Trial Of Andrew Johnson 28 [1973]).

  9 See, e.g., Edwin B. Firmage and R. Collin Mangrum, Removal of the President: Resignation and the Procedural Law of Impeachment, Duke L.J. 1023, 1027 (1974) (“Being a political process, impeachment should not be viewed as a duplication of the criminal process. The impeachment process was designed to be neither a criminal proceeding, nor, in a strictly technical sense, a juridical trial. Removal from office cannot be viewed as criminal punishment or its equivalent.”); Notes: Bribery and Other Not So “Good Behavior”: Criminal Prosecution as a Supplement to Impeachment Of Federal Judges, 94 Columbia Law Review 1617, 1620 (1994) (“The delegates to the Constitutional Convention designed the impeachment mechanism to be an essentially political process”); id. at 1672. (“Impeachment is a political process, designed to be cumbersome and to require the expenditure of political capital.”)

  10 Congressional Black Caucus, September 21, 2017.

  11 Allan J. Lichtman, The Case for Impeachment. 2017. Dey Street Books. New York, NY.

  12 Many renowned constitutional law scholars, such as Noah Feldman and Akhil Amar, also take the position that impeachable offenses do not have to be necessarily criminal. See, e.g., Akhil Amar, “On Impeaching Presidents,” 28 Hofstra Law. Review 291, 295 (Winter 1999). Noah Feldman and Jacob Weisberg, “What are Impeachable Offenses?” The New York Review of Books, Sept. 28, 2017.

  13 Id. at 16.

  14 Chris Riotta, “Will Trump Be Impeached? His Aides Committed ‘Treason and Betrayal,’ Ex-White House Ethics Chief Says.” Newsweek, July 12, 2017. http://www.newsweek.com/will-donald-trump-be-impeached-or-resign-russia-scandal-white-house-ethics-635458

  15 Tribe and Matz, To End a Presidency, pp. 38–39. 2018. Basic Books. New York, NY.

  16 Commentaries on the Laws of England (1765–1769), Sir William Blackstone, Book 4, Chapter 1, Of the Nature; and Their Punishment:

  A CRIME, or misdemeanor, is an act committed, or omitted, in violation of public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors; which, properly speaking, are mere synonymous terms: though, in common usage, the word “crime” is made to denote such offenses as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of “misdemeanors” only.

  The common law distinction between felony and misdemeanor has been eliminated in most modern criminal codes. Blackstone's broader example of a high misdemeanor—"mal-administration"—was expressly rejected by the Framers as a ground for impeachment.

  17 United States v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 (1912).

  18 Tribe and Matz, pp. 93–94.

  19 Tribe, Laurence. “Trump must be impeached. Here’s why.” Washington Post. May 13, 2017.

  20 Tribe and Matz, p. 95

  21 Blackstone’s Commentaries: Of the Nature of Crimes; and Their Punishment, Vol. 5, Ch. 1 (1803).

  22 Alan M. Dershowitz. Pre-emption: A Knife That Cuts Both Ways. 2007. W.W. Norton, New York, NY.

  23 The two-witness rule for treason derives from the biblical two-witness rule: “At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.” Deuteronomy 17:5. Of course, the rabbis figured out a way around the two-witness rule: “One who commits murder without witnesses is placed in a cell and [forcibly] fed with bread of adversity and water of affliction … until his stomach bursts.” Sanhedrin 81. Our contemporary “rabbis”—judges—cannot so transparently circumvent the constitutional rule of two witnesses.

  24 Aaron Burr, as vice president, presided over the Senate impeachment trial of Justice Samuel Chase. The trial took place in 1804, after Burr killed Hamilton in a duel. This led to the following quip: “In most courts, the murderer was arraigned before the judge; in this court, the judge was arraigned before the murderer.”

  25 The Federalist Papers, No. 65 (A. Hamilton).

  26 Alan M. Dershowitz. Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis. 1998. Basic Books. New York, NY.

  27 Tribe and Matz, p. 37.

  28 Arthur J. Goldberg and Alan M. Dershowitz, “Declaring the Death Penalty Unco
nstitutional,” 83 Harvard Law Review, 1773, 1807 (1970).

  29 Brown v. Allen, 344 U.S. 443, 537 (1953).

  30 Nixon v. United States, 506 U.S. 224 (1993).

  31 Id. at 244

  32 Id. at 253. In standard jury instructions, jurors are told they are the “sole judges of facts” and yet they are subject to review by judges.

  33 See US Constitution, Article 1, §6.

  34 Dershowitz, Sexual McCarthyism.

  35 Thanks to Paul Finkelman for suggesting this example.

  36 In his thoughtful book, Impeachment: A Citizen’s Guide (2017), Cass Sunstein also urges his readers to imagine themselves behind a Rawlsian veil of ignorance, knowing nothing of the president’s identity or policies but only of the actions for which he or she is to be impeached.

  Opening Statements:

  The Age of Hyper-Partisan Politics

  It is an unfortunate reality that partisanship has become the driver of our political narrative. Democrats and Republicans borrow from the same playbook when taking to the field for a game of blame. However, at no level is government a game, regardless of how often it appears as a contest between two foes. I argue at the outset for a consistency of neutral principles as the essence for a moral and just system that applies equally to Democrats and Republicans. There should be no place for the constant bickering or the current trend to criminalize political differences.

  People ask whether I have turned to the right for defending President Trump’s constitutional rights. The answer lies in that consistency of principles: where there is no right or left, but simply my fifty years of staying true to the rule of law and mandates of the Constitution. In the following three essays and transcript, I explore the danger of making accusations and calls for criminalization when one’s feet remain firmly ensconced only in one’s own shoes.

  The Partisan Shoe Is on the Other Foot1

  Had Hillary Clinton been elected president, Republican partisans would be doing and saying about President Clinton what Democrat partisans are now saying about President Trump.

  There would be shouts of “Lock her up!” as there were even before the election. There would be efforts to reopen the email investigation, as President Trump is now tweeting. There would be demands to appoint a special counsel. There would be claims that foreign contributions to the Clinton foundation and other entities were “emoluments.”

  If there were a DC grand jury investigating Clinton, there would be efforts by the prosecution to move it to a less overwhelmingly Democratic venue, like Virginia. There would be arguments that Bill Clinton obstructed justice by initiating a conversation with then–Attorney General Lynch in her airplane and that Lynch tried to influence the FBI director to refer to the email investigation as a “matter.”

  If President Hillary Clinton had fired FBI director James Comey—as she might well have done—there would have been allegations of a cover-up. There would be calls for her impeachment and prosecution.

  My partisan Democrat friends would be appalled at these efforts to undo the election of their candidate. They would be railing against expanding the criminal law to target a political opponent. They would be dismissing the emoluments argument as the stretch that it is.

  They would be complaining about the tactical advantage the prosecutor would obtain by moving the case from DC to Virginia. They would be insisting that President Clinton had every right to fire the director of the FBI and that exercising such a right cannot be an obstruction of justice.

  In other words, Democratic partisans would be making exactly the same arguments in relation to a President Clinton that I am now making in relation to President Trump.

  I would be joining them in making these arguments, because they are the right arguments for any civil libertarian to make regardless of which foot the shoe is on. But for partisans on both sides, everything depends on which foot the shoe is on. They remind me of my immigrant grandmother. When I would excitedly announce that the Brooklyn Dodgers had won a ballgame, she would ask rhetorically, “Yeah, but is it good or bad for the Jews?”

  For her, everything was measured by its influence on the Jews. Similarly, today, partisans measure everything by whether it’s good or bad for the Democrats or Republicans—for Clinton or Trump.

  Now that it is President Trump who is being targeted, my partisan Democratic friends are vociferously rejecting these neutral civil liberties arguments, because they do not now serve their partisan political interests. Nor do they seem embarrassed by their apparent hypocrisy and double standards. Hypocrisy is a small price to pay for partisan political victories.

  For me, the primary test for whether an argument is principled or partisan is “the shoe on the other foot” test. I employed this test in my book Supreme Injustice, in which I criticized the Supreme Court justices who voted to stop the recount in Bush v. Gore, thus handing the election to President Bush.

  I examined the past opinions of the majority justices and showed that if the shoe had been on the other foot—if it were Bush who was seeking the recount—the justices who voted to stop it would have almost certainly voted the other way. These Republican partisan justices failed the “shoe on the other foot” test. My partisan Democratic friends applauded the “shoe on the other foot” test when it favored the Democrats. Now, these partisans are failing the very same test.

  The time has come for all Americans who believe in enduring principles of morality and justice to insist on consistency. Ralph Waldo Emerson was wrong when he demeaned “foolish consistency” as “the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

  Consistency of principles is neither foolish nor small-minded. It is the essence of any moral system. Principled consistency may be difficult to achieve, especially in our current hyper-partisan atmosphere. But if we are ever to end the partisan bickering and name-calling that is coarsening dialogue and making reasoned compromise impossible, we must insist on a single standard of legality and morality that applies equally to Democrats and Republicans. We are far from that in the current shouting match in which each side calls the other “criminal,” “racist,” or worse.

  We must declare an armistice in this divisive war of words and agree to do unto your political opponents what you would have your political opponents do unto you. That golden rule of consistency should be as applicable to political debate as it is to personal morality.

  When Politics Is Criminalized2

  We are surrounded on all sides by news of criminal investigations into politicians. Robert Mueller, the Special Counsel, has obtained an indictment relating to his investigation into possible collusion between the Trump campaign and the Russian government. Congressional committees are also investigating Russian meddling in the 2016 election. House Republicans have announced plans to look into the Obama administration’s handling of Hillary Clinton’s emails and its decision to give a Russian-controlled company, Uranium One, control of some American uranium reserves. Now the Justice Department is considering whether to appoint a special counsel in the uranium deal.

  Government corruption should be prosecuted, Congress has a role to play in overseeing the executive branch, and our intelligence agencies are right to raise concerns about foreign interference in our elections. But there is something worrisome about the current frenzy of criminal investigations. To me they point to a frightening trend that afflicts both Democrats and Republicans: the criminalization of political differences.

  The Framers of our Constitution did not seek to make it easy to convict Americans of crimes. They bestowed upon criminal defendants a bundle of rights to provide safeguards against overzealous prosecutors or legislators, including prohibitions against compelled self-incrimination, unreasonable searches, double jeopardy, and the passage of laws declaring people guilty of acts that were not criminal when committed.

  Our legal system also came to require proof beyond a reasonable doubt, a unanimous jury, and clear statutes that differentiate between crimin
al and noncriminal conduct. No wonder Benjamin Franklin described our system as preferring that “a hundred guilty persons should escape than that one innocent person should suffer.”

  To be sure, these barriers to over-criminalization were sometimes more theoretical than practical when it came to political crimes. John Adams presided over an administration that imprisoned political opponents under the Alien and Sedition Acts. Thomas Jefferson went after his political opponents, especially Aaron Burr, with a vengeance, personally directing Burr’s unsuccessful prosecution for treason.

  Over time, though, the country’s judicial standards and rigorous protections for the accused made the jailing of political enemies difficult, maintaining a crucial bulwark against autocracy. But that bulwark has eroded, largely because of a new approach: the use of politically neutral but overly malleable laws on obstruction of justice, corruption, and conspiracy that can be used to prosecute the ethically questionable, but not necessarily criminal, activities of political rivals.

  Both sides deploy this tactic. We have seen it used against Republicans, including the former representative Tom DeLay, whose conviction on corruption charges was overturned after he was forced from office, and the former senator Ted Stevens, whose conviction on failing to report gifts was later voided—after he had lost his reelection bid. The Republican National Committee waged a media war to get Senator Robert Menendez, Democrat of New Jersey, to resign if a jury were to convict him on corruption charges so that the Republican governor of New Jersey could replace him before he leaves office early next year. (The case ended in mistrial when a jury could not reach a verdict, and the prosecutors then dropped the case.)