Alan Dershowitz on the Academic Margins

Dershowitz Senate

Alan Dershowitz‘s case against the removal of Donald Trump may have won over many GOP Senators during the president’s impeachment trial, but it has failed to convince law professors, legal scholars, and historians.  At one point during the trial, Dershowtiz ripped into his academic colleagues, suggesting that they are all “influenced by their own bias, by their own politics and their views.”  As I wrote last week, this plays into the belief, popularized by Fox News and other conservative media, that the opponents of Trump are liberal, ivory-tower elites who are out of touch with real people.  This is the kind of anti-elitism driving conservative activist Matt Schlapp’s recent tweet defending Donald Trump after the president thought the Kansas City Chiefs played football in Kansas.

Over at Inside Higher Ed, Colleen Flaherty has an informative piece on how Derhowitz’s views on impeachment are well outside the academic mainstream.  Here is a taste:

Does any of this challenge Dershowitz’s standing in academe? Is his expert analysis so left of field that he can no longer be deemed an expert, especially one affiliated with Harvard?

Bowman said Dershowitz has never really had such standing, and that he’s “never done any serious legal scholarship.” Instead, Bowman said he’s focused on op-eds and trying his own cases. (Perhaps most famously, Dershowitz defended O. J. Simpson.)

That Senate Republicans hail Dershowitz as an expert “just shows how desperate they are to find somebody, anybody, to tell them what they wanted to hear,” Bowman added.

Harvard had no comment on the matter of Dershowitz’s status, while Fried said that “even Harvard faculty members sometimes make arguments with absurd entailments.”

Dershowitz, of course, disagrees with his detractors. He says that he’s been intellectually alone often in his career, including in being against the death penalty in the 1960s and, more recently, for the limited use of what he’s called emergency “torture warrants.” He also said he wasn’t afraid to “impugn” his colleagues in asserting that they would not, in some alternative universe, support the same impeachment case against former Democratic presidential nominee Hillary Clinton.

“The burden of proof here is on those who ignore the plain language” of the Constitution on impeachment, which specifically mentions treason, bribery and high crimes and misdemeanors, he said.

“I think professors often allow, consciously or unconsciously, politics to seep into their constitutional analysis,” he added. “I’ve been proved right more often than not, and I think history will prove me correct here. The next time there’s a Democrat president and a Republican-controlled House, the president will be impeached and all the scholars criticizing me now will be making similar arguments.” (For the record, Dershowitz said during the trial that he voted for Hillary Clinton.)

Dershowitz is currently writing a book on impeachment.

Read the entire piece here.

Lamar Alexander’s Statement is Full of Historical Problems

lamar-alexander

If Lamar Alexander wants to oppose witnesses in the Donald Trump impeachment trial he has that right.  But spare us the “history” lesson.

Alexander statement says:

I worked with other senators to make sure that we have the right to ask for more documents and witnesses, but there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.

So it sounds like Alan Dershowitz’s “absurd” and “baffling” argument convinced the senior Senator from Tennessee.  In embracing the Dershowitz argument, Alexander has chosen to reject the consensus of legal scholars and American historians.

Alexander continues:

“There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a ‘mountain of overwhelming evidence.’ There is no need to consider further the frivolous second article of impeachment that would remove the president for asserting his constitutional prerogative to protect confidential conversations with his close advisers.

“It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate.

So what is the difference between an “impeachable” offense and an “inappropriate” offense?  Again, Alexander has been swayed by Dershowitz’s argument.  Alexander believes that the president is guilty, but he does not believe that Trump committed an impeachable offense.  (Dershowitz doesn’t think Trump is guilty of anything). This is also clear from the next part of Alexander’s statement:

“The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday.  

“The Senate has spent nine long days considering this ‘mountain’ of evidence, the arguments of the House managers and the president’s lawyers, their answers to senators’ questions and the House record. Even if the House charges were true, they do not meet the Constitution’s ‘treason, bribery, or other high crimes and misdemeanors’ standard for an impeachable offense.

Alexander goes on:

“The framers believed that there should never, ever be a partisan impeachment. That is why the Constitution requires a 2/3 vote of the Senate for conviction. Yet not one House Republican voted for these articles. If this shallow, hurried and wholly partisan impeachment were to succeed, it would rip the country apart, pouring gasoline on the fire of cultural divisions that already exist. It would create the weapon of perpetual impeachment to be used against future presidents whenever the House of Representatives is of a different political party.

“Our founding documents provide for duly elected presidents who serve with ‘the consent of the governed,’ not at the pleasure of the United States Congress. Let the people decide.”

On the issue of “partisan” impeachments and the founders, here is historian Joanne Freeman:

Moreover, as historian Kevin Kruse has been reminding us, there were no political parties when the founders wrote the Constitution:

Alexander also suggests that the “founding documents” teach that “the people” should decide whether to move a president.  Here he is connecting “impeachment” with the vote and will of “the people.” But the Constitution makes no such connection.

First, as James Madison made clear in Federalist 39, “The President of the United States is impeachable at any time during his continuance in office.” In other words, the president can be impeached during an election year.

Second, the framers were skeptical about trusting the people to make decisions about important matters such as impeachment.  The framers did not trust the “ballot”on impeachment.  Read the Constitution as it was written in 1787.  Senators were not directly elected by the people.  They were appointed by state legislatures. This is precisely why the framers believed that the Senate was best suited to serve as judges in an impeachment trial. The “people” in the House of Representatives brought charges in the president (impeachment), but the Senate, those so called “gods on Mount Olympus,” would decide whether or not the people were right (removal). As Madison wrote in Federalist 10, the passions of the people needed to be filtered through “a medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”  In fact, the framers of the Constitution had such a mistrust of the people that they did not allow them to vote directly for the president.  It is worth noting that they did not even record the popular vote in presidential elections until 1824.

In the end, Lamar Alexander can oppose impeachment trial witnesses for all kinds of reasons, but please don’t appeal to the founders.

Alexander’s sketchy use of the founding-era is particularly troubling considering that he has always been a strong advocate for more history and civics in public schools.

Jonathan Turley Criticizes Alan Dershowitz’s “Suprising and Baffling” Claims on the Floor of the Senate

Turley

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.”

Here is Turley today in USA TODAY:

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.

Heather Cox Richardson on Alan Dershowitz’s Absurd Argument on the Senate Floor

Dershowitz Senate

Here is Boston College history professor Heather Cox Richardson at her site, “Letters from an American“:

Today, on the floor of the Senate, retired Harvard Professor Alan Dershowitz said the quiet part out loud. Trying to argue that it was okay for Trump to withhold congressionally approved funds from Ukraine until Ukraine’s president agreed to smear Trump’s key rival in the 2020 election, Dershowitz said that Trump’s actions were in the public interest because Trump believes that his reelection is what’s best for the country. “Every public official that I know believes that his election is in the public interest… and if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz is so far out on a limb on this one he’s dangling out there on the fuzzy tips. Other legal scholars note that his interpretation of what is acceptable behavior from a president quite literally means that the president can do anything to stay in power. Republicans are flocking to Dershowitz’s argument, although some are willing to concede that if a president breaks a law, that would be an impeachable offense. That concession is marred in this case, of course, by the fact that the Government Accountability Office has concluded that Trump did, in fact, break a law by withholding funds from Ukraine, and also by the complication that currently, a 1973 Department of Justice memo does not permit a sitting president to be indicted. Trump’s lawyers are currently in court arguing that a sitting president cannot be investigated, either. So… how would we establish that a president had committed a crime?

In any case, this interpretation is so completely ahistorical and bonkers that lawyers and constitutional scholars are chewing it to bits all over the media tonight. If a president can do anything to get reelected, including using the power of the American government to pressure a foreign country into smearing a rival, under what possible circumstances would we ever have a change in president? He or his selected replacements will rule forever.

But this chilling perversion of the American presidency does say a great deal about today’s Republican leaders. They have bought into the idea that they, and only they, should rule. This has been a long time coming.

Read the rest here.

What Happened in the Senate Yesterday?

Impeachment Image

CNN has a nice overview. Here is a taste:

Republicans have variously argued that Trump did nothing wrong, the Democrats made up impeachment charges or that there was no quid pro quo in Ukraine. But they have apparently been pushed to this final, fallback position in the light of Bolton’s claim in a manuscript for his new book first reported by The New York Times that Trump did indeed tell him to withhold aid to Kiev until it opened probes into his domestic foes.

The legal reasoning from Dershowitz — while outside the mainstream — is giving Republican senators political cover to stand with the President.

The Harvard emeritus professor claimed on the Senate floor that if a politician thinks his reelection is in the national interest, any actions he takes towards that end cannot by definition be impeachable.

“And if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz argued.

Lead House impeachment manager Adam Schiff however argued that such a position suggested an interpretation of the Constitution that held it acceptable for a President to abuse his power and Congress could do nothing about it.

“You can’t do anything about it because if he views it as in his personal interest, that’s just fine. He’s allowed to do it. None of the founders would have accepted that kind of reasoning,” Schiff said, adding later, “In fact, the idea that the core offense that the founders protected against, that core offense is abuse of power, is beyond the reach of Congress through impeachment would have terrified the founders.”

CNN legal expert Carrie Cordero said that Dershowitz’s arguments — that CNN reporters in the chamber said were warmly received by Republican senators — were nonsensical.

“It basically means that a President can do anything and they can make a subjective determination that their reelection is in the national interest,” Cordero said.

“It invites and opens the door to anything that is in the realm of foreign influence.”

Dershowitz reacted angrily later on in the question-and-answer session to suggestions by the House impeachment managers that he was in a slim minority of legal thought, claiming that constitutional experts who did not agree with him treated Republican and Democratic presidents by different legal standards.

“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,” Dershowitz said.

The spectacle of Republicans adopting such arguments is remarkable since the party that once saw itself as the epitome of limited government is coalescing in an effort to broaden the unrestrainable power of the presidency. But it is also thematically compatible with the idea of a “unitary executive” — a theory that grants expansive powers to the presidency and is advanced by some conservative lawyers — including current Attorney General William Barr. In his own way, Trump has argued similar points, claiming that Article II of the Constitution gives him the power to do anything he wants.

Read the entire piece here.

I was struck by Dershowitz’s statement that all other Constitutional 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 constitutional history.”

Such a statement implies that Dershowitz is the only true, objective constitutional scholar in the world.   Everyone else is biased.  Only he is right.  This is like Trump saying “I alone can fix it.”

Dershowitz’s absurd argument is an appeal to the Trump base.  Dershowitz is telling Trump supporters that there is a deep state of elite liberal law professors who are out to get them and their president.  I have not had a chance to watch Fox News today, but I am imagine they are running with this argument.

“Dershowitz’s view is so absurd that I don’t know of even one legal scholar who studies the Constitution who agrees with him”

Dershowitz

During the impeachment trial, Trump defense lawyer Alan Dershowitz made the case that “abuse of power” is not an impeachable offense. Harvard University constitutional law scholar Noah Feldman (along with nearly all other constitution scholars) disagree.

Here is Feldman today at Bloomberg News:

As Republicans scramble to argue that they don’t need to call witnesses in Donald Trump’s Senate impeachment trial, one argument seems to be gaining traction: that witnesses are irrelevant, because even if Trump did everything he’s accused of doing, abuse of power is not an impeachable offense.

This argument isn’t merely wrong. It is the single most dangerous argument that any of Trump’s defenders have made during the entire impeachment process. If abuse of power isn’t impeachable, what is?

The strongest version of this argument has been made by Alan Dershowitz, who has insisted that the Constitution’s “high crimes and misdemeanors” include only crimes found in the statute books, not abuse of power.

That’s obviously wrong. In 1725, in a case the framers knew, Thomas, Earl of Macclesfield, was impeached by the House of Commons specifically for “Abuse of his Power” and “great Abuse of his Authority.” The House of Lords convicted him for it.

At the constitutional convention, on July 20, 1787, Edmund Randolph, the governor of Virginia who had introduced the Virginia plan, stated specifically that “the propriety of impeachments was a favorite principle with him” because “[t]he Executive will have great opportunitys of abusing his power.” In Federalist 65, Alexander Hamilton defined “high crimes and misdemeanors” as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Dershowitz’s view is so absurd that I don’t know of even one legal scholar who studies the Constitution who agrees with him. That includes Dershowitz himself, who in 1998 said (correctly) that impeachment doesn’t have to be for a crime.

Read the rest here.

Is Alan Dershowitz Secretly Working for the Democrats?

I am just kidding, but this was certainly strange:

Let’s summarize and breakdown this argument:

  1. Dershowitz says that a president can engage in three types of quid pro quos: for the public good, for the political interest of the president, or for the financial interest of the president.  It is often hard to distinguish which motive is at work at any given time.
  2. Trump, like any president, believes that his election is in the “public interest.” As a result, his call to investigate the Bidens was perfectly fine.  It is worth noting here that Dershowitz’s entire argument is built on the idea that Trump did ask the Ukrainians to investigate his political rival.  Not everyone on the Trump defense  team seems to agree with this.
  3. If Trump does something that he believes will get him get elected, “in the public interest,” then it cannot be “the kind of quid pro quo that results in impeachment.”  In other words, Trump can do whatever he wants because he believes his presidency to be in the national interest.  As several commentators have been pointing out in the last couple of hours, this is the equivalent of Richard Nixon telling David Frost “when the president does it that means that it is not illegal.”
  4. When Abraham Lincoln told William Tecumseh Sherman to “let the troops go to Indiana so that they can vote for the Republican Party” it was not an impeachable offense because Lincoln believed his own election was necessary for victory in the Civil War.  I am still trying to figure out how Dershowitz thinks this example has anything to do with the current impeachment case.  Lincoln was not soliciting foreign interference in an American election and withholding aid until he got it.
  5. It is dangerous to “psychoanalyze a president” or “get into the intricacies of the human mind.” I will let Adam Schiff handle this one in the video posted below.
  6. Presidents always balance national interest with motives rooted in party loyalties and personal interests when they make foreign policy decisions.  It is thus impossible to understand which motives are corrupt and which ones are not.  Again, I will let Schiff take this one.

Here is Schiff’s response:

This was one of the top moments of the entire trial.  Schiff completely dismantled Dershowitz’s argument using the Harvard professor’s own method of argumentation.

As I see it, the House case is getting stronger by the day.  This is happening for three reasons.  First, Adam Schiff has been amazing.  Second, the president has a weak defense.  Third, John Bolton has a book manuscript.

Watch Alan Dershowitz and Robert Jeffress Revel in Trump’s Support for Mike Pompeo’s Treatment of an NPR Reporter

Here is the video from today’s roll-out of Trump’s Middle East peace plan:

If you are unfamiliar with Pompeo’s treatment of NPR reporter Mary Louise Kelly get up to speed here and here.

At about the 0:25 mark of the video Trump says to Pompeo, “that reporter couldn’t have done too good a job on you yesterday, right?”  After the crowd laughs in approval, Trump says, “I think you did a good job on her actually.”

At the moment Trump praises Pompeo for his treatment of the reporter, a man pats Pompeo on the back in obvious support.  The man is Alan Dershowitz, the Harvard law professor who gave a speech last night on behalf of the president’s impeachment defense.

Seated two chairs to Dershowitz’s right is court evangelical Robert Jeffress, the pastor of the First Baptist Church of Dallas. You can see him in the top right-hand corner of the screen.  He did not pat Pompeo on the back, but he joins the rest of those present who are laughing about Trump’s support of Pompeo’s treatment of the reporter.  (This evening CNN showed a similar video with a better of view of Jeffress).

This is what happens when you spend too much time at the court.  You lose your moral focus.

ADDENDUM (January 29, 2020 at 8:41am)

Trump’s Defense Thus Far:

Impeachment Image

  1. There was no quid pro quo (Jay Sekulow and Robert Cipollone).
  2.  The Ukraine call was about “burden sharing.”
  3.  Joe Biden, Joe Biden, Hunter Biden, Joe Biden, Joe Biden (Pam Bondi and Eric Herschmann).
  4.  This impeachment is too partisan (multiple members of the defense team, including Ken Starr).
  5. This impeachment is too close in time to the last impeachment.  We are in an “age of impeachment” and this is not good for the country (Starr).
  6. Trump is a corruption fighter and was investigating corruption in the Ukraine by calling for the investigation of Biden (multiple members of the defense team).
  7. The call was perfect (Cipollone).  The call was not perfect (Robert Ray).
  8. There was a quid pro quo, but it doesn’t matter, because Trump did not commit crime (Dershowitz).

What a mess.

Unless something wild happens, the Senate will vote to keep Trump in office.  But the GOP Senators who vote against removal need an argument to take to their constituencies. This is especially the case for the Senators who are up for reelection in November.  The Trump defense team has offered an entire buffet of arguments.  GOP Senators can pick the one that will work best with the people in their states.  It doesn’t matter if the defense of Trump as a whole is coherent.  It doesn’t matter if one presentation contradicts another presentation.  There is something here for everyone.

“Mr. Dershowitz is an expert on civil liberties and criminal law and procedure, not constitutional law generally”

Dershowitz

Steven Harper is a lawyer, graduate of Harvard Law School, and an adjunct professor of law at Northwestern University.  While at Harvard he took a class with Alan Dershowitz, a member of Donald Trump’s impeachment defense team.  I think it is fair to say that Harper speaks for the overwhelming majority of legal scholars in the country.  Sure, Dershowitz might find someone who supports his defense of Trump, but this would be like a climate-change denier trying to find a legitimate climate scientist who says climate change is a hoax.

Here is a taste of Harper’s post on Dershowitz at The New York Times:

Two months before President Bill Clinton’s impeachment hearings began in 1998, Larry King asked Mr. Dershowitz whether he agrees that “some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law.”

“I do,” he answered. If those offenses “subvert the very essence of democracy.”

In the same interview, Mr. Dershowitz also said: “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty. You don’t need a technical crime. We look at their acts of state. We look at how they conduct the foreign policy. We look at whether they try to subvert the Constitution.”

But on Sunday, Mr. Dershowitz was acting as one of Mr. Trump’s lawyers when he said to George Stephanopoulos that abusive or obstructive conduct is not impeachable and that an “actual crime” is required. And although the evidence demonstrates that Mr. Trump has committed crimes, Mr. Dershowitz asserted that, unless those crimes are explicitly stated in articles of impeachment, they cannot lead to Mr. Trump’s removal from office.

Mr. Dershowitz said that he was defending Mr. Trump to protect the Constitution, but serious constitutional scholars didn’t buy his argument. Another of my former professors, the constitutional law expert Laurence H. Tribe, responded with an op-ed essay in The Washington Post. “The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject,” he wrote. “There is no evidence that the phrase ‘high crimes and misdemeanors’ was understood in the 1780s to mean indictable crimes.”

Mr. Tribe likewise debunked Mr. Dershowitz’s argument that the president could not be impeached for “abuse of power,” noting, “No serious constitutional scholar has ever agreed with it.” Among those scholars is the Republicans’ designated constitutional law expert, Jonathan Turley. He testified before the House Judiciary Committee that impeachment could result from conduct that was not technically a criminal act.

Mr. Dershowitz is an expert on civil liberties and criminal law and procedure, not constitutional law generally. Facing widespread criticism and trying to reconcile his 1998 statements with his new position, he now says that Congress doesn’t need a “technical crime” to impeach, but there must be “criminal-like” conduct, or conduct “akin to treason and bribery.” To the extent his earlier statement “suggested the opposite,” he retracts it.

Read the entire piece here.  I am not an expert on the legal profession, but it seems like this is the equivalent of picking a historian of China to provide expert testimony on Alexander Hamilton.  I am sure Jonathan Spence would be great in court, but if you had to pick a true expert wouldn’t you go with someone like Joanne Freeman or Ron Chernow?

I Think the Circus Just Came to Washington

Dershowitz

Alan Dershowitz

In case you haven’t heard, Trump has added Ken Starr, Alan Dershowitz, and Robert Ray to his defense team.  I think the days of Dershowitz receiving dinner invitations on Martha’s Vineyard are over.  The shunning will only get worse.

In case Trump needs more lawyers, Robert Shapiro, F. Lee Bailey, and Barry Scheck are still alive.  (Unfortunately for Trump, Johnnie Cochran and Robert Kardashian have passed away).

Let the show begin.  This trial is going to be reality television at its “finest.”