Dershowitz - Case Against Impeaching Trump (9781510742291)

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Copyright 2018 by Alan Dershowitz

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Library of Congress Cataloging-in-Publication Data is available on file.

ISBN: 978-1-5107-4228-4

Ebook ISBN: 978-1-5107-4229-1

Cover design by Brian Peterson

Printed in the United States of America

Dedication

This book is respectfully dedicated to an endangered species: genuine civil libertarians who pass the shoe on the other foot test.

Acknowledgements

M y appreciation to my wife, Carolyn Cohen, who reads, reviews, and corrects everything I write, and to Elon Dershowitz, Jamin Dershowitz, Ella Dershowitz, and others who critiqued my words. Also, thanks to Harvey Silverglate and Alan Rothfeld for reviewing and critiquing the manuscript.

This book could not have been written without the valuable assistance of my research team, Aaron Voloj Dessauer, Jennifer Barrow, and Hannah Dodson, who researched and contributed to the text and footnotes, and my assistant, Maura Kelley, who deciphered and typed my handwritten drafts and provided her usual invaluable assistance. You all know how much I appreciate your extraordinary efforts. A special thanks to my agent, Karen Gantz, who guided me through the process.

Also, my thanks to Michael Campbell, Tony Lyons, and Bill Wolfsthal of Skyhorse Publishing for their speed and professionalism in getting the book ready for print.

Table of Contents

Introduction: The Constitutional Case Against Impeaching Trump

T he decision to impeach and remove a duly elected president is a momentous constitutional event. 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.

I will argue in this book that if a president has not committed any of these specified crimes, it would be unconstitutional to remove him, regardless of what else he may have done or may do. 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 presidents 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.

The case against (or for) the impeachment of President Trump (or any other president) must, therefore, begin with the text of the Constitution. There are at least fifteen provisions of the Constitution and its twenty-six amendments that are relevant to impeachment. Some are directly on point, such as the criteria for impeaching a president (which are the same for all federal government officials). Also directly on point are the procedures governing the trial of an impeached president, which are different in only one important respect from those of other impeached officials. The chief justice must preside at the trial of the only government official who is not, in the words of Professor Akhil Amar, fungiblethat is, whose duties are capable of being performed by another official. Other provisions are implicit or arguably relevant, but they, too, must be considered in making a case regarding impeachment.