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Alan Dershowitz - 9 July

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Maybe the question isnt what happened to Alan Dershowitz. Maybe its what happened to everyone else.PoliticoAlan Dershowitz has been called one of the most prominent and consistent defenders of civil liberties in America by Politico and the nations most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights by Newsweek. Yet he has come under partisan fire for applying those same principles to Donald Trump during the course of his many appearances in national media outlets as an expert resource on civil and constitutional law.The Case Against Impeaching Trump seeks to reorient the debate over impeachment to the same standard that Dershowitz has continued to uphold for decades: the law of the United States of America, as established by the Constitution. In the authors own words: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.

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Also by Alan Dershowitz The Case Against BDS Why Singling Out Israel for - photo 1

Also by Alan Dershowitz

The Case Against BDS: Why Singling Out Israel for Boycott Is Anti-Semitic and Anti-Peace

Trumped Up: How Criminalization of Political Differences Endangers Democracy

Electile Dysfunction: A Guide for Unaroused Voters

The Case Against the Iran Deal

Terror Tunnels: The Case for Israels Just War Against Hamas

Abraham: The Worlds First (But Certainly Not Last) Jewish Lawyer

Taking the Stand: My Life in the Law

The Trials of Zion

The Case for Moral Clarity: Israel, Hamas and Gaza

The Case Against Israels Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace

Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11

Finding Jefferson: A Lost Letter, a Remarkable Discovery and the First Amendment in the Age of Terrorism

Blasphemy: How the Religious Right is Hijacking Our Declaration of Independence

Pre-emption: A Knife That Cuts Both Ways

What Israel Meant to Me: By 80 Prominent Writers, Performers, Scholars, Politicians and Journalists

Rights From Wrongs: A Secular Theory of the Origins of Rights

America on Trial: Inside the Legal Battles That Transformed Our Nation

The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved

The Case for Israel

America Declares Independence

Why Terrorism Works: Understanding the Threat, Responding to the Challenge

Shouting Fire: Civil Liberties in a Turbulent Age

Letters to a Young Lawyer

Supreme Injustice: How the High Court Hijacked Election 2000

Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law

Just Revenge

Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis

The Vanishing American Jew: In Search of Jewish Identity for the Next Century

Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case

The Abuse Excuse: And Other Cop-Outs, Stories and Evasions of Responsibility

The Advocates Devil

Contrary to Popular Opinion

Chutzpah

Taking Liberties: A Decade of Hard Cases, Bad Laws, and Bum Raps

Reversal of Fortune: Inside the Von Blow Case

The Best Defense

Criminal Law: Theory and Process (with Joseph Goldstein and Richard Schwartz)

Psychoanalysis, Psychiatry, and Law (with Joseph Goldstein and Jay Katz)

Copyright 2018 by Alan Dershowitz All Rights Reserved No part of this book may - photo 2

Copyright 2018 by Alan Dershowitz

All Rights Reserved. No part of this book may be reproduced in any manner without the express written consent of the publisher, except in the case of brief excerpts in critical reviews or articles. All inquiries should be addressed to Skyhorse Publishing, 307 West 36th Street, 11th Floor, New York, NY 10018.

Hot Books may be purchased in bulk at special discounts for sales promotion, corporate gifts, fund-raising, or educational purposes. Special editions can also be created to specifications. For details, contact the Special Sales Department, Skyhorse Publishing, 307 West 36th Street, 11th Floor, New York, NY 10018 or .

Hot Books and Skyhorse Publishing are registered trademarks of Skyhorse Publishing, Inc., a Delaware corporation.

Visit our website at www.hotbookspress.com .

10 9 8 7 6 5 4 3 2 1

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

The Case Against Impeaching Trump - image 3

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 ContentsIntroduction: The Constitutional Case Against Impeaching Trump

The Case Against Impeaching Trump - image 4

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, fungible that 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.

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