Some of you remember Jonathan Turley. He is the George Washington University law professor who testified before the House Judiciary Committee during the impeachment inquiry. Turley argued that there was not enough evidence to impeach Donald Trump.
Turley still believes that the House did not have enough evidence (at least right now) to impeach Trump. But he also thinks the current Trump defense during the Senate trial is filled with problems. This is especially the case with Alan Dershowitz’s claims that removal from office in an impeachment trial requires a crime. Turley believes that abuse of power is an impeachable offense, he just doesn’t believe that the House has made its case for the abuse of power. Moreover, Turley rejects Dershowitz’s argument that Trump had every right to solicit Ukraine’s help in the investigation of his political rival because Trump believed he was doing so for the “public interest.”
While I praised Dershowitz’s presentation of his theory on Monday as cogently and powerfully argued, I still believe that he is fundamentally wrong in maintaining that impeachable offenses must be based on actual crimes or “crime-like” conduct. However, the tight argument on Monday seemed to gradually loose more and more definition with every hour and day. Dershowitz declared that “Every public official that I know believes that his election is in the public interest. And mostly, you’re right. Your election is in the public interest. And if a president does something, which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
It was a surprising and baffling statement. Where his definition of impeachable offenses would proscribe too little, this argument would protect too much in presidential misconduct. Clearly everything that a president does in office will come with a patina of politics. However, this argument would make that common denominator into an absolute defense. It is akin to saying that the Navy cannot commit maritime crimes carried out in water. Politics is the common element of presidential conduct just as water is the common element of naval action. That is why the argument becomes circular. Presidents cannot be impeached for politics but he argues all is politics for presidents. To use a Simpson-like construct: if it is political, there must be acquittal.
While Dershowitz encourages senators not to consider the overwhelming view of academics (who he described as biased and dishonest), his narrow view of impeachment quickly unravels using the very hypotheticals that he raised.
For example, Dershowitz repeatedly cited how President Abraham Lincoln’s call on General William Tecumseh Sherman to release Indiana soldiers to return to that state to vote in the key 1864 election. Dershowitz also noted that Lincoln unconstitutionally suspended habeas corpus but was not impeached for either act. The examples however prove the contrary to Dershowitz’s position.
Degrading our defenses for political benefits or suspending habeas corpus are non-criminal act that show why we cannot limit impeachable conduct to the criminal code. They are examples of potential impeachable abuses of power. While Lincoln could defend his authority or privileges in the courts, it is precisely such abuses that militate against the narrow definition advanced by Dershowitz. Otherwise, a president could be impeached for accepting a small bribe but not denying an entire nation the protections of its army or the great writ.
Read the entire piece here.