The Case Against Impeaching Trump
By Alan Dershowitz
Hot Books, 160 pages, $21.99
Alan Dershowitz has been called “one of the most prominent and consistent defenders of civil liberties in America” by Politico and “the nation’s most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights” by Newsweek.
Lately, he has come under partisan fire for applying those same principles to President Donald Trump during the course of his many appearances in national media outlets as an expert resource on civil and constitutional law. As Politico says, "Maybe the question isn't what happened to Alan Dershowitz. Maybe it's what happened to everyone else."
In The Case Against Impeaching Trump, Dershowitz seeks to reset the debate over impeachment to the same standard that he has upheld for decades: the law of the United States of America, as established by the Constitution.
Dershowitz says of the case he lays out in this voluminous work, “In the fervor to impeach President Trump, his political enemies have ignored the text of the Constitution. As a civil libertarian who voted against Trump, I remind those who would impeach him not to run roughshod over a document that has protected us all for two and a quarter centuries. In this case against impeachment, I make arguments similar to those I made against the impeachment of President Bill Clinton (and that I would be making had Hillary Clinton been elected and Republicans were seeking to impeach her). Impeachment and removal of a president are not entirely political decisions by Congress. Every member takes an oath to uphold the Constitution of the United States, and the Constitution sets out specific substantive criteria that MUST be met. I am thrilled to contribute to this important debate and especially that my book will be so quickly available to readers so they can make up their own minds.”
Dershowitz lays out how all the branches interact in the impeachment of a president and how the impeachment trial is conducted in the Senate, with the Chief Justice presiding.
"The decision to impeach and remove a duly elected president is a momentous constitutional event," writes Dershowitz. "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.'...
"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."
Dershowitz looks at all aspects of what has fueled the impeachment talk since basically the day President Trump was inaugurated in January 2017: the Trump/Russia investigation, such as the appointment of Special Counsel Robert Mueller, the targeting of Trump's personal lawyer Michael Cohen, the role of the ACLU in the opposition to Trump and what it means for that organization, how civil liberties have been affected with the case, and Trump's defense.
"The Constitution is fragile and imperfect, as is democracy itself," Dershowitz writes. "Both require the legitimacy of the governed. Recall that presidential candidate Al Gore acceded to the Supreme Court's highly controversial ruling stopping the recount and giving the presidency to George W. Bush. Had he refused to accept that ruling, as some urged him to do, there would have been a major crisis. That is why Congress must comply with the text of the Constitution - especially with the enumerated criteria for impeaching and removing a president, regardless of whether its decisions are or are not subject to judicial review. It is also why the Supreme Court should remain the final arbiter in the event of a reasonably challenged removal.
"On the basis of the constitutional text and the facts we currently have in the public record, the case against impeaching and removing President Trump is quite strong....
"What if President Trump were to be impeached for colluding with Russia during the presidential campaign? If there were such proof of such collusion - and to date I have seen none - that would be a serious political sin. An American should not collude with a foreign power, especially a hostile foreign power, in an effort to enhance his candidacy. But once again, there is a dispositive difference between a political sin and a high crime and misdemeanor. There is no such crime of collusion in the context of an election. Collusion may entail other crimes, such as election law violations or accessory to crimes such as hacking. But collusion itself is simply not a crime. Consider the most extreme hypothetical: assume, absurdly, that candidate Trump called Vladimir Putin and said the following: 'Hey Vlad. Do I have a deal for you? I want to be elected president, and you want to get rid of the Magnitsky sanctions, which I don't like anyway. You should help me get elected by giving me dirt you already have on Hillary Clinton because, if I'm elected, there's a better chance to get rid of the sanctions, which I disapprove of.' Of course, no such conversation occurred and no such deal was made. But if it had been, once can search the federal criminal statutes for a crime that would cover this political sin. Politicians often seek contributions and support from individuals who expect to benefit from the election of their candidate. There are, of course, limitations on what a foreign government can contribute to a campaign, but these limitations are vague and subject to constitutional scrutiny, especially in the context of information rather than cash. Perhaps some election laws could be stretched to fit this conduct, but such stretching would raise serious constitutional issues."
The thing that is misunderstood in the current moment about Dershowitz is that he makes the case against President Trump's impeachment, but there is no evidence that he supports any of his policies.
The Case Against Impeaching Trump is purely based on whether the charges against Trump would pass Constitutional muster. It is also look into how a lawyer weighs the strengths and weaknesses of a case they are given and how to proceed.
This is one of the finest works you will read on the matter, and it must be done with a clear mind appreciate the thoughts of one of America's finest legal minds.
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