Reversal of Reputation: How Dershowitz is Taking Liberties to Defend Trump

Posted in: Book Reviews

Alan Dershowitz, The Case Against Impeaching Trump (Hot Books, 2018)

What is Alan Dershowitz thinking?

Why does this much-lionized civil libertarian regularly defend Donald Trump to a vast television audience? How did this distinguished professor end up embracing far-out theories that would put the president beyond the reach of prosecution, or even impeachment? And why has Dershowitz—the biggest celebrity legal academia has ever produced—risked social ostracism among the gentry of Martha’s Vineyard to make this case?

These questions can be perplexing, especially for those who don’t watch a lot of Fox News, where Professor Dershowitz is a frequent guest commentator. For the rest of us, he has cooked up The Case Against Impeaching Trump—a straightforward title for what is essentially a defense brief for the president. The book weighs in at a slender 146 pages—even with considerable Hamburger Helper in the form of recycled articles, transcripts of TV interviews, and tweet exchanges with Donald Trump himself—perhaps suggesting that the chef is working with some pretty thin gruel. But it seems to be intended less as a work of serious scholarship than one of public persuasion. If so, it partakes of a proud polemical tradition in which fast food can be more satisfying than an elaborate feast.

Alas, The Case Against Impeaching Trump is no Common Sense. It’s more J’excuse than J’accuse. For there is no excuse too far-fetched for Dershowitz to deploy to get Trump off the hook, no fringe constitutional argument he’s not willing to push to the limits of credulity. Whatever sincere motives might have fueled his initial skepticism of the impeachment remedy, Dershowitz is now serving up pure Kool-Aid for the Fox News faithful.

The Best Defense?

Dershowitz’s effort starts off well enough. His introductory essay is measured in tone. He acknowledges that the constitutional language describing impeachment is brief, scattered among several different provisions, and leaves many questions up for debate. These include: What are the grounds for impeachment? Specifically, how should we interpret the phrase “Treason, bribery, or other High Crimes and Misdemeanors”? Does this require the violation of a federal statute, or something more (or less)? What rules apply to impeachment proceedings? Does the accused have the same rights as a criminal defendant? In exercising their constitutional roles, are the House and Senate supposed to make a “political” judgment or a “legal” one? Is the answer the same for the House (which can vote to impeach by a simple majority) and for the Senate (which needs a two-third supermajority to convict, and whose members take a special oath to “do impartial justice according to the Constitution and laws”)? Finally, does Congress have the final word on all impeachments, or is its decision somehow reviewable by the courts for compliance with Constitution?

These are all excellent questions. Unfortunately, Professor Dershowitz answers them according to his own personal preferences, while ignoring or sidestepping most of the historical and legal interpretative tools at his disposal. What are those preferences? To his credit, Dershowitz makes them perfectly clear. He disavows any political motive to aid Trump personally. Rather, he says, he would insist on the same criteria for impeachment if the “shoe [was] on the other foot”—in other words, if Hillary Clinton were president and Republicans were seeking her impeachment. Instead, Dershowitz frames his campaign for a narrow reading of the impeachment clauses as a defense of civil liberties. We cannot “ignore words of the Constitution that are there to protect individuals,” he writes, “even if those individuals are government officials who are being subjected to impeachment and removal.” As he puts it, “if a controversial president is denied constitutional protections, then any citizen can be denied constitutional protections.”

In short, Dershowitz frames impeachment through the lens of a criminal defense lawyer, in which the power of the prosecutorial state is pitted against the rights of the accused. The fact that the president is powerful in his own right—and perhaps even a threat to other institutions—does not make him less worthy of procedural protections. In this view, the president is the canary in a constitutional coal mine: if his rights can be abused, it just shows how vulnerable the rest of us are.

It’s a classic Dershowitz formula, the same advocacy that somehow briefly alchemized figures like Claus von Bulow and O.J. Simpson into causes larger than their repellent selves. Such cases are the foundation of Dershowitz’s fame. And what greater glory could any defense lawyer achieve than to extricate the president of the United States from the ultimate Ford Bronco chase?

Reasonable Doubts at an Unreasonable Price

If President Trump wants a lawyer who will argue that he can’t be impeached for conduct that doesn’t violate a federal statute, that the federal statutes that might seem to apply are too vague and inconsistently enforced, and that he deserves all the procedural protections and presumptions due to a person who is on trial for his life, then he has found his man. He could do (and has done) far worse in assembling his legal team. Dershowitz would be an able advocate for Trump if and when the time comes, whether he makes his case to the Senate or to Sean Hannity.

Professor Dershowitz is less successful, however, as an analyst of the Constitution. First, he does not attempt to place the impeachment power into any kind of historical context. Where did it come from? Why was it included in the Constitution? In Dershowitz’s account, it’s a kind of unknowable mystery, an idea that appeared ex nihilo and slipped into the Constitution virtually unnoticed.

“We don’t know the answer to these and other hypothetical questions,” he writes regarding the powers of the chief justice when presiding over an impeachment trial of the president, “because the framers of our Constitution did not provide answers. Nor did they provide much in the way of interpretive information in contemporary debates or discussions.”

This may be narrowly true in the case of the chief justice’s role, but in general Dershowitz makes little use of the original source material that is available. Ironically, he takes aim at his Harvard Law School colleague Laurence Tribe, who (together with co-author Joshua Matz) argued in To End a Presidency: The Power of Impeachment (2018) for a broad construction of the impeachment power, while cautioning against its premature use. Dershowitz accuses Tribe and Matz of disregarding the original meaning of the impeachment clauses in favor of a “living Constitution” approach that adapts our understanding to modern conditions. In fact, Tribe and Matz make a far stronger “originalist” case for their view than Dershowitz does for his.

From its origins as a weapon of the British Parliament in its battles against abusive ministers of the king, impeachment had a long history even before it was imported to the young American republic. As Professor Josh Chaffetz demonstrates in his book Congress’s Constitution: Legislative Authority and the Separation of Powers (2017), the authors of the US Constitution knew this history intimately. When they adapted this power for their own constitution, the Founders incorporated a set of practices that were widely understood and did not need to be spelled out, except where they intended to modify them. The debates of the Constitutional Convention, the writings of Hamilton, Madison, and Jay in The Federalist and the precedents set by Congress (which conducted three non-presidential impeachment trials within 15 years of the Constitution’s ratification) can tell us a lot about what the Founders had in mind, as long as we read them without trying to bolster a pre-conceived conclusion.

Unfortunately, that is exactly what Dershowitz does on the few occasions where he mentions any of the original sources. For example, Dershowitz cites James Madison’s objection at the Constitutional Convention to making “maladministration” a sufficient ground for impeachment, because it would make an official’s service “equivalent to a tenure during pleasure of the Senate.” From this, Dershowitz concludes that the Constitution does not allow removal of the president except for specific federal crimes like treason and bribery.

Confounding the Founders

The actual evolution of the impeachment language at the Convention was more complicated—and illuminating—than Dershowitz suggests. The original draft allowed removal for “mal-practice or neglect of duty.” Addressing concerns that this was too broad and would make officials too dependent on the Senate, a drafting committee narrowed the grounds to “Treason or Bribery”.

George Mason, an influential delegate from Virginia, objected to the committee’s change: “Why is the provision restrained to Treason & bribery only?” Noting that the Convention had already agreed to restrain the broad use of treason charges familiar to them from British practice, Mason argued that “Treason as defined in the Constitution will not reach many great and dangerous offences.” Mason went on to cite the impeachment trial of Warren Hastings, the Governor-General of India, then underway in Britain. “Hastings is not guilty of treason. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend the power of impeachments.” Mason’s reference to bills of attainder (laws designed to target and punish a specific person) is important. The British Parliament had often averted perceived attempts to subvert the constitutional order through bills of attainder. Since the draft US Constitution would forbid such laws, Mason argued that the impeachment power had to be broadened in order to address threats to the state itself. Accordingly, Mason proposed to add “maladministration” to the least of impeachable offenses.

This is the context for Madison’s objection that the use of “so vague a term” could give the Senate too much leverage to control the executive. But Mason’s concern about defending the constitution itself from executive abuse was evidently still persuasive enough. According to Convention records, “Col. Mason withdrew ‘maladministration” & substitutes ‘other high crimes & misdemeanors’. <agst. the state’>.” By a vote of eight to three, the Convention adopted Mason’s revised proposal, leading to the final version we know today: officials may be impeached and removed for “treason, bribery, or other high crimes and misdemeanors” (Art. II, Sec. 4). The precise meaning of this last phrase is, naturally, still the subject of much debate. But it must mean something. Mason clearly proposed it to address his own concern about “great and dangerous offences” against the state, without going so far as to trigger Madison’s anxieties about executive independence. By citing only Madison’s objection—without mentioning Mason’s argument or that his counterproposal was adopted by the Convention—Dershowitz is not just advocating the wrong conclusion. He is hiding the debate from his readers entirely.

Throwing Away His Shot

Similarly, Dershowitz makes almost no reference to The Federalist, even though these arguments for constitutional ratification carry great authority. Alexander Hamilton discusses the impeachment power at length in Federalist No. 65 and No. 66, and references to it are scattered throughout the essays. Dershowitz cannot avoid mentioning Hamilton’s statement in No. 65 that impeachment is proper for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Such offenses, Hamilton explains, “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

Most readers, including Tribe and Matz, have understood this passage to mean that Congress’s judgment in an impeachment case is different from a court’s in a criminal matter. Or, as James Wilson, another leading Founder, put it a few years later, “Impeachments, and offences and offenders impeachable, come not… within the sphere of ordinary jurisprudence. They are founded on different principles, are governed by different maxims, and are directed to different objects.”

Dershowitz denies that Hamilton was trying to broaden the grounds for impeachment to include offenses that are not statutory crimes. Rather, he claims, it is just as likely that Hamilton was trying to narrow it to statutory crimes that also have a political nature. Dershowitz argues that a private offense (like Bill Clinton’s alleged perjury in a civil case) may be a crime, but it should not be impeachable because it was not an “abuse of public trust” or an “injury to society.” Conversely, even a matter of extraordinary political importance (such as the Trump campaign’s alleged collusion with Russia in the 2016 election) would not be impeachable unless it can be proved that Trump personally committed a statutory crime. Otherwise, Dershowitz contends, it is a mere “political sin.”

On the latter point, Dershowitz is certainly wrong about Hamilton’s view. Federalist No. 65 and 66 are primarily a defense of the selection of Congress, rather than the judiciary, as the right body to handle impeachments. Hamilton writes that both in Britain and the states “the practice of impeachments is a bridle in the hands of the legislative body upon the executive servants of the government” and that “this is the true light in which it ought to be regarded”. Hamilton also compares Congress’ impeachment power to the executive’s power to veto congressional legislation. Just as the veto is “an indispensable barrier against the encroachments” of Congress on the executive, Hamilton writes, “the powers relating to impeachments are… an essential check in the hands of that body upon the encroachments of the executive.” Clearly, Hamilton is not simply talking about statutory crimes. The word “encroachment” appears 31 times in The Federalist. Each time it refers to an abuse or improper aggrandizement of one constitutional power at the expense of another, or (in two instances) to the subjugation of the United States by foreign powers. It is never used as a synonym for “crime.”

Describing the advantage of having a single executive in Federalist No. 70, Hamilton stresses that this allows the people “an opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order to either their removal from office or to their actual punishment in cases which admit of it” (emphasis added). Hamilton is, of course, alluding to the fact that Art. I, Section 3, cl. 3 states that the “Judgment in Cases of Impeachment” is limited to removal and disqualification from office, but that after impeachment an official is nevertheless “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” (that is, by an ordinary court). If Hamilton thought that impeachment and removal required a statutory crime, then there would be no case of a removed official that would not also “admit” actual punishment by law. Hamilton (like the rest of the Founding Fathers) viewed impeachment by Congress and punishment by the courts as distinct but potentially overlapping categories.

This view was reflected in the practices of the early republic. The House of Representatives approved three impeachments between 1797 and 1804, none of which alleged a specific statutory crime. These impeachments resulted in one conviction in the Senate, one acquittal, and one dismissal on unrelated grounds. While the precise meaning of “high crimes and misdemeanors” was debated, no one contended that it was limited to violations of the very thin book of federal criminal statutes then in effect.

The “originalist” case against Dershowitz’s narrow reading of the impeachment clauses is overwhelming. The Founders clearly viewed impeachment as something very different from a criminal trial. Treating impeachment as a penal matter and focusing exclusively on the rights of the accused, as Dershowitz does, fundamentally misunderstands its purpose. Impeachment is not designed to punish an individual’s wrongdoing. It cannot deprive anyone of his or her liberty. Rather, it is part of the system of checks and balances designed to prevent abuses of power and, if necessary, to remove a threat to the state itself. The questions of crime and punishment are left to the subsequent judgment of ordinary courts.

You Can Invade Us from Your House

Usually a reductio ad absurdum must be concocted by one’s opponents. But Dershowitz himself serves up the most compelling argument against his own case. After arguing that colluding with a hostile foreign power is a mere “political sin,” Dershowitz admits that it would be a “breach of the public trust.” Still, it would not meet his criteria for impeachment. And Dershowitz goes even further:

Or take a more extreme example. Assume Putin decides to “retake” Alaska, the way he “retook” Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to “its” original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution. (It would, of course, be different if he did it because he was paid or extorted.) Such a dramatic event might appropriately result in a constitutional amendment broadening the criteria for impeachment, but it would not justify ignoring or defying the words of our current Constitution.

Let that one sink in for a second. Dershowitz is actually saying that if the president allowed a foreign power to invade and annex an American state, he could not be impeached under our present Constitution, so long as he was not paid to do it. Never mind the utter disregard for his oath of office, or the dereliction of his duties as commander in chief—there is no statutory crime. The only remedy the American people could pursue in such a true national emergency would be to enact a constitutional amendment, in the hope that this plodding and uncertain process could be completed before the entire country vanished from the map.

Such an extreme scenario seems designed to showcase the writer’s steely consistency. But I cannot see how it would provoke any feeling but revulsion. Dershowitz may think he is making a case for a constitutional amendment, but he is really discrediting his own approach. Any interpretation that would render the Constitution unworkable or ridiculous should be rejected in favor of plausible interpretations that do not leave the nation defenseless against foreign or domestic enemies. There were many future problems that the Founders did not anticipate. But this is one that they clearly foresaw. The constitutional debates and The Federalist are full of warnings about would-be despots in league with foreign powers. To claim that the Founders failed to provide the constitutional mechanisms necessary to counter this threat does a disservice to one of the most admirable features of their work.

American presidents have understood this. During the 1962 Cuban Missile Crisis, President John F. Kennedy worried that he would face impeachment if he failed to secure the removal of Soviet offensive missiles from Cuba. It would have been no crime. But Kennedy knew that failure to stand up for crucial American security interests in the face of an aggressive foreign adversary could lead to impeachment.

In his concluding chapter, Dershowitz acknowledges that his belief that impeachment can only be applied if the president has committed a statutory crime is “widely rejected by other academics.” After hearing his argument, one can certainly see why. He has missed something that should have been obvious. The office of the presidency exists to protect and preserve the Constitution, not the other way around.

Would You Care for Some Leftovers?

As flawed as this narrowed reading of the impeachment clause is, it proves to be the strongest part of Dershowitz’s book. The rest of The Case Against Impeaching Trump is a grab bag of short articles and TV interviews reacting to plot twists in the daily soap opera of Trump World. In this mode, Dershowitz can descend into the most perishable form of punditry, offering opinions like “Last week was not a good one for Special Counsel Mueller.” He reliably defends the Trumpian line of the day. Some claims—for example, that a president cannot be indicted for a criminal offense while in office—have a reasonable amount of support. Others are closer to the fringe. Dershowitz argues that the president cannot obstruct justice when exercising his constitutional powers. He sees nothing unusual or objectionable in Trump’s micromanagement of law enforcement to protect his allies and punish his foes. He condemns the use of a special counsel to investigate the president, preferring his own strange proposal to split the Justice Department in two, with one part under no executive control at all. He condones the use of pardons to shut down investigations that could lead to the president himself, relying on the dubious precedent of President George H.W. Bush’s much-criticized lame-duck Iran-Contra pardons. Dershowitz even suggests that it is a close question whether a president can pardon himself, which might come as a surprise to the Founders. At the Convention, George Mason asked, “Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?” Dershowitz’s answer edges dangerously close to “yes”.

While consistently straining to give President Trump every benefit of the doubt, Dershowitz insists that he would argue for the same principles if a Democratic president were under investigation. But this admirable impulse often yields to a reflexive “both-sides”-ism. By equating every charge against Trump (who currently exercises the vast powers of the presidency) with some real or invented offense of the much-investigated Clintons (who do not), Dershowitz shows an aptitude for balance of the Fox News kind. No one concerned about his eagerness to let Trump escape accountability for significant offenses will be mollified by his generous offer to let others get away with much less.

Just Desserts

As this short book wears on, Professor Dershowitz grows increasingly concerned at the toll defending Trump has exacted from his public esteem. It’s not just the dinner parties he is no longer invited to on the Vineyard—though he credits the loss of seven pounds to his “Trump diet.” He rightly objects to the tone of his hate mail, particularly in its anti-Semitic variants, and reminds us that he urged Trump to issue a less equivocal condemnation of neo-Nazi violence at Charlottesville. (An essay to this effect, otherwise unrelated to impeachment, is included in the book.) His call for a civil debate over impeachment is fair. But if Dershowitz has any understanding of Trump as a fundamentally divisive force—full of authoritarian threats, unrelentingly nasty to his opponents, and prone to inciting racial and religious hatreds—it is absent from this book.

Will The Case Against Impeaching Trump persuade anyone who is not already a firm Trump supporter? The answer is no, and it doesn’t need to. The book should fly off the shelves in red states. Readers on the coasts and in big cities, meanwhile, may feel compelled to carry their purchase around in a brown paper bag. They won’t feel differently after reading it. Dershowitz has taken on a weak case and—aside from lending it his name and prestige—does not make it appreciably stronger. He knows his arguments will not convince scholars. That doesn’t particularly bother him. Like the skilled defense attorney he is, Dershowitz plays only to the jury. If at least 34 members of the GOP Senate caucus buy his argument, Trump cannot be forced from office. As recent events have demonstrated, that group doesn’t need much legal cover to vote the way they are already leaning.

Posted in: Book Reviews, Politics

Tags: Legal