The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  In a footnote, the judge echoed a proposal I made a year ago and had been much criticized by pundits: “A better mechanism for addressing concerns about election interference would be the creation of a bipartisan commission with subpoena power and the authority to investigate all issues related to alleged interference in the 2016 presidential election. If crimes were uncovered during the course of the commission’s investigation, those crimes could be referred to appropriate existing authorities within the [Department of Justice].”

  The judge concluded his opinion with wishful thinking:

  This case is a reminder that ultimately, our system of checks and balances and limitations on each branch’s powers, although exquisitely designed, ultimately works only if people of virtue, sensitivity, and courage, not affected by the winds of public opinion, choose to work within the confines of the law. Let us hope that the people in charge of this prosecution, including the Special Counsel and the Assistant Attorney General, are such people. Although this case will continue, those involved should be sensitive to the danger unleashed when political disagreements are transformed into partisan prosecution.

  Although I generally agree with the judge’s nuanced assessment of the role for special counsel, I respectfully disagree that our system of checks and balances ultimately depends on the virtue of the individuals who serve in the three branches of government. James Madison, who was largely responsible for devising and defending our unique system of checks and balances, believed that “if men were angels” we would need no government. Nor would we need the cumbersome mechanisms of checks and balances. It is precisely because government officials too often lack virtue, and too often place partisanship over principle, that we need institutional checks. As Madison wrote, “If angels were to govern men, neither external nor internal controls on government would be necessary.” But because humans govern other humans, we need “the auxiliary precautions” of institutional checks and balances.

  It is for that reason, and not because I distrust Robert Mueller personally, that I oppose special counsels in situations like the current one. The risks alluded to by Judge Ellis, in my view, outweigh the benefits. This does not mean that Judge Ellis was wrong in his legal decision. Just as there is a determinative difference between sin and crime, there is a difference between principled opposition to special counsels and a legal conclusion that this counsel’s appointment was unconstitutional or that he exceeded his powers. Since I am not a judge, it is enough for me to join Judge Ellis in his conclusion that a nonpartisan commission would have been “a better mechanism for addressing concerns about election interference.”

  Jeff Sessions Validates Chant to Lock Up Hillary Clinton2

  At a Turning Point USA conference in Washington, Attorney General Jeff Sessions laughingly repeated the chant of conservative high school students to “lock her up,” referring to Hillary Clinton. He said that he had “heard that a long time over the last campaign.” Sessions was referring, of course, to Republican presidential candidate Donald Trump’s campaign pledge to appoint a special prosecutor to investigate and charge “Crooked Hillary” with criminal behavior.

  To the Justice Department’s credit, no special counsel was appointed to investigate Clinton. To the contrary, Trump’s own birds came home to roost when the Justice Department appointed, erroneously in my view, a Special Counsel to investigate alleged collusion between his campaign and Russian efforts to influence the 2016 election. This all goes to show just how politicized our criminal justice system has become. Both sides try to criminalize their political opponents. Both sides try to misuse the delicate constitutional mechanism of impeachment for partisan benefit. Both sides are prepared to abandon enduring civil liberties and democratic principles to serve their political ends.

  The losers in this race to the bottom are the American people, who are best served by preserving tested neutral principles that should be applied equally to both sides of the political aisle. This is the truth of the shoe on the other foot test, which is simply an application of the golden rule: Do unto Democrats what you would have Democrats do unto you, and vice versa. Almost no one in our hyper-partisan world lives by this rule. Instead, for many Democrats, anything goes as long as it hurts Republicans, especially the president. For many Republicans and Trump voters, anything goes as long as it helps Trump and hurts Democrats.

  I have insisted on applying the shoe test and the golden rule to my advocacy of civil liberties and constitutional rights. For this, I have, at different times, been pilloried by both sides and admired by both sides depending on whether my neutral principles hurt or help their partisan causes. Some misunderstand what I am doing. Others know exactly what I am doing, but pretend not to do so in order to condemn me. My position wins me no popularity contests, but neutral civil libertarians do not aspire to popularity. Rather, it is quite the opposite. Our main task is to defend the rights of whoever is most despised and unpopular, especially among our friends and peers at any point in time.

  So I will continue to fight against the misuses of criminal law and the impeachment process without regard to who is hurt or helped. My life would be a lot easier right now if Hillary Clinton—for whom I voted—had been elected president and if Jeff Sessions were still in Senate leading the national chant of “lock her up” or “impeach her.” I would be making precisely the same arguments with reference to her as I am now making with reference to Trump. The difference is that Democrats would be praising me and Republicans would be condemning me.

  Let me be clear that this is not about me. I refer to the reaction to my arguments only to make the larger point about hypocrisy on both sides of the aisle. Even more dangerous than this hypocrisy is the misuse of the law by both sides. We can survive hypocrisy, which may be inherent in partisan politics. But what we cannot survive is establishing dangerous precedents by one side that can be used later against the other side. These dangerous precedents, such as over-criminalization of political differences and stretching the law to fit unpopular targets, lay around like loaded weapons that are capable of being used by anyone in power against the most vulnerable of citizens in this country.

  So these are critical issues that affect all Americans regardless of party affiliation. We should all care about the weaponization of the law by those in power or those seeking power. Sessions should be criticized for validating the chant of “lock her up.” As attorney general of the United States, he must reflect the utmost neutrality in administering the law. Not only must he do justice, but he must appear to be doing justice. He did not satisfy that appearance by validating the chant of “lock her up.”

  Trump’s Bid to Silence Dissent Violates Spirit of First Amendment3

  President Trump recently threatened to strip the security clearances of top former government officials who criticized his performance at Helsinki with regard to Russian president Vladimir Putin. Were Trump to carry out this threat, he would be violating the spirit, if not the letter, of the First Amendment. Such a decision, directed only at those who exercised their First Amendment rights to criticize Trump, might be seen by the courts as punitive government action directed at the content of speech. Even threatening to do so might deter critics from exercising their free-speech rights.

  Trump’s threat is reminiscent of the decision by General Lewis B. Hershey, who was the director of the Selective Service System during the Vietnam War, to selectively draft critics of the war. In both cases, the government has the authority to act generally by cutting off security clearances or drafting individuals. But it may not have the constitutional power to act selectively against critics who are exercising their rights under the First Amendment.

  Were the president to decide to end the security clearances of all former officials, the courts would be confronted with a legal issue similar to the one they faced with regard to the travel ban. In both situations, the president said things that suggest an unconstitutional motive: in the travel case, to ban Muslims; in the clearance matter, to stif
le dissent. But then he acted, or would act, in a manner that on its face is constitutional: in the travel case, by not limiting the ban to Muslim countries; and in the clearance matter, by not limiting the cutoff to critics. In the travel case, a closely divided Supreme Court upheld the ban, but there is no assurance it would do so in the clearance matter. The difference is that the travel ban was directed against noncitizens, who have no constitutional rights, so the claim had to be based on a questionable expansion of the prohibition against the establishment of religion. In the clearance matter, the cutoff is directed against American citizens, and their claim would be a core violation of the right to free expression.

  The Trump administration would argue that no one has the right to a security clearance. That is true. But even a governmentally granted privilege cannot generally be revoked by government officials as punishment for exercising one’s First Amendment rights.

  It would be a close case, and you can be sure the American Civil Liberties Union would bring the challenge, despite its recent softness on the First Amendment. It would bring this case because the organization is a big critic of Trump and makes its money bringing lawsuits against his administration. So it’s a no-brainer for the partisans who now run what used to be a nonpartisan organization.

  All Americans benefit from vigorous dissent, especially from security experts and former government officials. To be sure, some of the current criticism about which Trump is complaining seems partisan and over the top (e.g., accusing him of treasonous behavior in Helsinki), but that is precisely what the First Amendment is designed to protect: unfair and over-the-top criticism. No president should seek to stifle dissent, especially a president who himself is often partisan and over the top. I personally wish both sides would stop exaggerating and provide us with more nuanced exchanges, but the First Amendment doesn’t distinguish between good and bad speech. It leaves that to the citizens.

  Even if the president’s actions were to be ruled constitutional, no president should use his enormous powers over our national security to stifle or deter dissent. So please, Mr. President, do not selectively remove the security clearance of those former government officials who disagree with you. Respond to them in the marketplace of ideas, but don’t try to shut down their stalls. This is not about you, Mr. President. Nor is it about your critics. It is about the right of the American people to hear all sides of controversial issues without government officials placing their thumb on the scales of the marketplace of ideas.

  Impeaching Rosenstein May Hurt Trump4

  The decision by a group of Republicans to seek a bill of impeachment against Deputy Attorney General Rod Rosenstein may well backfire against President Trump. The conservative lawmakers who are seeking to introduce this bill of impeachment have charged Rosenstein with conduct that does not meet the constitutional criteria for impeachment.

  As I pointed out in the introduction to this book, the constitutional criteria are very specific: “Treason, bribery, or other high crimes and misdemeanors.” These specified crimes do not include the allegations being made against Rosenstein. Accordingly, the Republicans who support this bill of impeachment are implicitly siding with Democrats who argue that Trump can be impeached for noncriminal conduct.

  In the introduction, I lay out the history of the impeachment clause and demonstrate, I think quite persuasively, that the Framers intended to limit impeachment and removal to government officials who are tried and convicted by the Senate of the crimes specified in the Constitution. The Framers rejected a proposal allowing removal for “maladministration” or other noncriminal actions or policy differences. Now these Republican lawmakers are taking the Democratic side of this debate, calling for impeachment of Rosenstein for actions that do not fit the specified criteria under the Constitution.

  If and when the Democrats regain control of the House, there will surely be efforts to vote a bill of impeachment against President Trump. Proponents of such a bill will argue, as you’ll recall Congresswoman Maxine Waters (D-Calif.) and Gerald Ford before her have, that the criteria for impeachment are anything the House votes on, regardless of the words of the Constitution. She said, “Impeachment is whatever Congress says it is. There is no law.”

  These lawless approaches to impeachment fly in the face of the Constitution. It would be as if senators decided that a two-thirds vote was not necessary for removal, despite the fact that the Constitution explicitly requires such a supermajority. This entire episode demonstrates a point I make in this book and have been making for a long time: namely, that both sides are abusing constitutional criteria for impeachment for reversible partisan advantages. Both sides are abusing the criminal law by stretching it and weaponizing it to target political opponents. Both sides seem to forget that what today may serve their partisan interests will become an enduring precedent that will soon be used by their political opponents against them.

  The ultimate losers are all Americans who rely on neutral civil liberties and nonpartisan constitutional protections. Once these civil liberties and rights are weaponized for partisan purposes, they no longer serve the democratic function for which they were intended, namely, requiring the neutral rule of law to govern all actions by federal and state officials.

  So, let these Republican lawmakers, who are seeking partisan gain from trying to impeach Rosenstein, look in the mirror and understand the boomerang effect of such shortsighted actions. They should immediately drop any plan to impeach Rosenstein. If they truly believe he improperly refused to comply with subpoenas, they have the option of seeking a contempt citation from a court. The sanction must fit the offense, and the sanction of impeachment does not fit the alleged offense of failing to comply with subpoenas. That is what the contempt power is for.

  Among the charges in the proposed bill of impeachment is the allegation that Rosenstein has a conflict of interest because he is a potential witness to any charge of obstruction of justice against the president growing out of his firing of former FBI director James Comey. I agree that Rosenstein does have a conflict of interest, but the proper remedy for this is not impeachment. Rather, there could be a motion to the court to remove him from the investigation based on his conflict of interest.

  I am sending a copy of this book to every member of Congress. Let them read the history of the impeachment and removal clause. Let them read The Federalist Papers. Let them listen to the debates among those who ratified the Constitution. Most of all, let them read, with great care, the actual words of the Framers. When they do, they will become convinced that it is safer for all Americans, regardless of party affiliation, to reserve the impeachment and removal power for government officials who have committed the crimes designated in the Constitution, rather than using this power for partisan advantage.

  Who Leaked the Trump Tape?5

  Someone leaked the lawyer/client confidential tape containing a conversation between President Donald J. Trump and his lawyer Michael Cohen. A former judge, assigned by the presiding judge to evaluate the seized tapes, reportedly concluded that this conversation was privileged. Yet someone leaked their contents. President Trump’s current lawyer, Rudy Giuliani, then waived the privilege as to that tape. He said he never would have waived it had its existence and content not been improperly leaked.

  So, the question remains: Who leaked this privileged material? If it was anyone in the Trump camp, there would be no violation of confidentiality, as the privilege belongs to the client, namely Trump, who can waive it. But no one else, most especially his lawyer, may properly waive the privilege. And Giuliani has categorically denied that it was leaked by Trump or anyone on his behalf. Indeed, he has expressed outrage at the leak.

  Whom does that leave? Cohen is an obvious suspect, although I am confident that his excellent and experienced lawyer, Lanny Davis, would not have done so. Perhaps Cohen himself, who ran into Michael Avenatti at a restaurant, told him about the tape. We simply do not know.

  It is unlikely that any judicial or prosecut
orial authority is responsible for the leak, because they would have more to lose than to gain if they were caught.

  This again raises the reason that this is important to all Americans, beyond the immediate parties to this taped conversation: it may well discourage clients, patients, penitents, and others from confiding in their lawyers, doctors, priests, and the professionals who promise them confidentiality. Cohen promised confidentiality and yet the world heard what his client confided in him. We know he recorded the confidential conversation without the knowledge of his client. That is bad enough. Then it was deliberately leaked by someone who must have believed he or she would reap some benefit or advantage from having the public hear it.

  We must find out who is the source of this damaging leak—damaging to all Americans who place their faith in the promise of confidentiality from the professionals in whom they confide.

  It is an ethical violation, subject to serious sanctions including disbarment, for a lawyer to disclose, or cause to be disclosed, privileged conversations. And for good reason. The obligation of a lawyer not to disclose confidential information is codified in Rule 1.6 of the New York Bar. This broad rule prohibits, subject to exceptions not present in this case, any knowing disclosure of confidential information. That plainly covers the kind of conversation we have all now heard in the leaked tape: namely, the discussion between Trump and his attorney as to how to deal with a potential messy problem. We may not like the subject matter under discussion, but it is fully covered by the privilege, as the former judge rightly found. That is why this leak is so difficult to fathom. The risks to the leaker are greater than any short-term benefit. But the fact remains that the leak occurred, and now it is imperative that the leaker be exposed and held to account.