The Real Insidious Part of Dershowitz’s Impeachment Defense

Posted in: Constitutional Law

No, it isn’t law professor Alan Dershowitz’s claim that “abuses of power” that are neither formal crimes nor “crime-like” can never constitute impeachable high crimes and misdemeanors. And it isn’t even his follow-up assertion that, as we assess motives for arguable non-criminal misbehavior, anything a politician does in order to get (re)elected should categorically be viewed as legitimate simply because she honestly believes she’d be a better leader than her opponent and therefore her election is in the national interest. Both of these views are highly controversial, the first dubious and fringe and the second (at least as formulated) bordering on ludicrous. And both claims are dangerous, given their (separate and combined) propensity to license uncheckable presidential misconduct.

But consider Professor Dershowitz’s explanation for why he’s virtually alone in holding these views, which was essentially this: “Those who disagree with me are spouting fake news for partisan reasons.” Sound familiar? This third claim—that lawyers, scholars, and (implicitly) judges who oppose his views are biased and cannot be trusted—may be the scariest of them all, with effects lasting well beyond the span of the current presidency.

Dershowitz’s Take on “[H]igh Crimes and Misdemeanors”

To be sure, the criticism of Professor Dershowitz’s two tendentious interpretations of impeachment criteria is warranted. His broad assertion that the concept of non-criminal “abuse of power” was rejected by the Framers because it, like “maladministration,” is too vague reflects a cramped reading of the relevant history and ignores two centuries of congressional impeachment practice and rhetoric (including those surrounding both the Richard Nixon and Bill Clinton episodes). Here he’s in a decidedly small minority of academics (across the entire political spectrum). He claims company with a single scholar from the past, Theodore Dwight, who served as Dean of the Columbia Law School from 1858 until 1891 and the school’s sole faculty member for about half that time. Dwight was a major figure in the founding era of modern legal education, but he does not appear to have been a constitutional expert. Dershowitz also claims support from a jurist-playing-advocate, former Supreme Court Justice Benjamin Curtis, who advanced a similar view while spearheading President Andrew Johnson’s impeachment defense. Dershowitz notes that these two men’s 1860s remarks were uttered closer in time to the Framing than more recent scholarship (as if being some eight decades away from the founding is close enough to categorically improve such originalist divinations). Finally, Dershowitz claims company with a current Harvard Law School colleague Nikolas Bowie (who has publicly responded that Dershowitz misconstrued his argument and that Dershowitz’s equation of the rejected term “maladministration” with power abuse is “a joke”). Suffice it to say that many (indeed, the overwhelming majority of) serious and accomplished scholars, both of yesteryear and today, argue cogently for a broader definition of impeachable conduct than Dershowitz’s. Imagine, for example, a President who simply ran off on vacation for months at a time, even (or especially) during times of national crisis, phoning in once a week for messages. Even though such irresponsible dereliction of duty may run afoul of no criminal statute, could a sensible Constitution (and ours is nothing if not sensible) bind the country to four years of such (non)rule?

Professor Dershowitz’s second and related claim—that “if a president [or presumably any other official] does something which he believes will help him get elected in the public interest [because he believes he is better for the country than are his opponents], that cannot be the kind of quid pro quo that results in impeachment”—is also exceedingly unconvincing. Of course, Dershowitz may very well be correct that, as a matter of personal psychology, most people with the healthy ego required to seek high office probably do think they’ll do a better job than the next guy.

But that psychological supposition is really neither here nor there. Dershowitz’s idea that personal interests count as public interests obviously doesn’t work for conduct that is criminal (as Dershowitz clarified in the days after the Senate trial): imagine such a defense claimed by the bank robber who honestly believes she’ll put the loot to better use than would its rightful owners, or the false advertiser who truly believes customers will benefit from using her product more than competing products. And it’s not clear why this “defense” makes any more sense when assessing arguable presidential misconduct that happens for some reason not to violate the law. For example, it’s a crime—and clearly impeachable misconduct—to withhold military aid to solicit a bribe from a foreign government for money with which a President plans to place ads to attack his opponent in the reelection campaign. Why wouldn’t it be equally problematic as an abuse of power to withhold the military aid to strong-arm the foreign power into generating negative press for his opponent directly, even if the latter isn’t covered by a criminal statute? The power abuse and effect are the same, irrespective of the President’s belief in both settings that the ill-gotten political dirt would serve the public interest by supporting his reelection. The point here is that in the electoral context, rules of fair play exist to let the people decide which candidate would better serve the national interest. The fact that one candidate thinks it’s him doesn’t make it so, and doesn’t excuse wrongful efforts to override the people’s own assessment.

To be sure, many presidential decisions (e.g., to sign or veto a tax increase) may reflect a complicated (and perhaps subconscious) blend or mix of motives—some policy-based and some reelection-oriented. And if Dershowitz’s point were simply that Congress and society should be careful about condemning Presidents whose hearts are not pure, and should more carefully consider where to draw lines in mixed-motive situations, then his views would not be so radical. But that’s not what Dershowitz asserted (nor would that position necessarily defend this President given Dershowitz’s stated assumption the House proved its case). Rather, it is because Dershowitz’s extreme assertion that self-interest in attaining or retaining power equates to national interest paints with such a broad and (dare we say, non-lawyerly) brush that his proclamations are so deeply problematic.

Dershowitz’s Explanation for Why He Stands (Virtually) Alone

Of course, Dershowitz is entitled to his own scholarly views—even though they are wrong-headed and dangerous in that they license uncheckable presidential non-criminal abuses of power. But we find particularly troubling his explanation for why his views are idiosyncratic, and why academic views contrary to his own should be rejected. During the Clinton impeachment proceedings, Dershowitz had actually articulated the consensus view that criminal behavior was not required and that abuse of power could itself be impeachable. When asked during last week’s Senate trial what led him to change his own mind since then, Professor Dershowitz said two things. First, in 1989, he hadn’t really spoken based on his own scholarly work, but had instead simply followed what other scholars predominantly concluded. Now, he says, he’s read more materials surrounding the Andrew Johnson impeachment trial and they have convinced him that the consensus is wrong. For starters, this makes one wonder how many other positions over the course of his illustrious career did Professor Dershowitz equally confidently and consequentially propound, not just to the media but to august decisionmaking bodies such as Congress or the courts, views that at those times also failed to reflect his independent expertise / research / consideration but simply parroted the thoughts of others? The question of when and in what settings it is legitimate or appropriate for legal scholars to opine in public as “experts” on matters as to which they have not themselves deeply researched or written scholarship is an interesting one to which we hope to return sometime in a subsequent essay.

But for now, let us turn to the other noteworthy defense of his change-of-mind Dershowitz offered:

You asked [me] what happened between 1998 and the current [time] to change my mind. What happened between the 19th century and the 20th century to change the mind of so many scholars? Let me tell you what happened. What happened was that the current president was impeached. If in fact President Obama, or “President” Hillary Clinton had been impeached, the weight of current scholarship would be clearly in favor of my position, because these scholars do not pass the “shoe on the other foot” test. These scholars are influenced by their own bias, by their own politics, and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history.

This intemperate condemnation of the mainstream of the legal academy is incredibly dangerous insofar as it supports the notion, strategically advanced by those trying to morph if not subvert the law, that scholars as a class are partisans to be ignored rather than (well-intentioned if imperfect) experts to be consulted and considered. This campaign to discredit the very concept of disinterested scholarly analysis does long-lasting damage to the role scholars play in advancing knowledge and trying in good faith to navigate some of society’s most contentious and high-stakes controversies.

To be sure, there were some talking heads who simply opined to the media in 1974 or 1999 about impeachment standards without having done substantial scholarly work, and who may have done so for partisan reasons. But, as noted earlier, it is the sweeping character of Dershowitz’s assertions that make them so corrosive. He didn’t limit his broadside attack on legal scholars to particular individuals, or even to the minority of scholars (whom he could have defined generically) who flip and flop depending upon who is in the White House. Instead, he castigated just about everyone (“so many” folks who make up the “weight of current scholarship”) who reaches a different conclusion from his own, a group that includes a large cohort of serious scholars who published articles or books on the topic at a time when no current impeachment controversy raged and well before they knew which subsequent Presidents or parties would be helped or hurt by their interpretation (and who, we might add, have certainly done much more and much deeper scholarship on these topics that he has). And by casting his attack in such encompassing terms, Dershowitz has engaged in—or at least has fed into—an outright attack on the very notion of scholarly expertise.

That Professor Dershowitz has engaged in this professional character assassination is doubly ironic. First, his remarks cast doubt on his own objectivity. If virtually all other scholars so easily stray from expert and impartial judgment to satisfy other inclinations, how can he (and we) be so confident he’s uniquely impervious?

He might respond that in both the Clinton and Trump impeachment proceedings he opined against his partisan bias, as on policy grounds he claims to be pro-Clinton and anti-Trump. But many reputable impeachment scholars whose characters and motives he trashes in his broadside may too have taken interpretive positions against their political interests, or may have lacked strong political views, or may (as true scholars do) have successfully put aside such views when engaging in constitutional reasoning.

Second, Professor Dershowitz’s brusque dismissal of opposing legal scholarship recalls the growing refrain that other important institutions of society, such as the media, career government officials, scientists, and whistleblowers, cannot be trusted when they inconveniently reach disfavored conclusions. That’s not the position a serious Harvard Law Professor should expound, even in the heat of battle. In the end, though Dershowitz repeatedly protested throughout the Senate trial that he was merely representing the Constitution and not President Trump the person, the tone of his sweeping generalizations about the legal academy ironically sounded a lot like his client’s.