Not to be confused with Leeroy Jenkins, and with much arm-waving Alan Dershowitz affirmed that the House has charged IMPOTUS* with impeachable offenses, despite declarations to the contrary. He also tried to apply a critique that trashes the recently revealed Bolton book in his speech to the Senate.
“Abuse of power may be “unwritten” in any code, and obstruction of Congress may be “implied” by statutes, but these crimes are now as well established, well defined and destructive of the public trust as bribery or treason. If the president did what the House accuses him of doing, he can and should be punished.”
Dershowitz asserts that nothing in Bolton's testimony would amount to impeachable conduct. So, if that's the case, let's hear it and let Congress & the American people decide the matter. Why hide it?
— Joyce Alene (@JoyceWhiteVance) January 28, 2020
.@AlanDersh thinks he’s shown something significant by demonstrating that lots of things can be called “abuse of power.” Not so. What counts is whether the SPECIFIC ACTS charged in articles 1 and 2 meet the standard the Constitution sets for removal.
— Laurence Tribe (@tribelaw) January 28, 2020
Alan Dershowitz, the president's lawyer, just conceded on the Senate floor that the House has charged the president with impeachable offenses.
— Niko Bowie (@nikobowie) January 28, 2020
But as I write in the oped, that case (which predates 1868) said nothing about Congress's *own* power to punish people for common law crimes, e.g., via impeachment. So he just conceded that, if not for a case he is misreading, Congress can impeach for abuse of power & obstruction pic.twitter.com/Ty9Xm0mTuS
— Niko Bowie (@nikobowie) January 28, 2020
Watching CNN last week, I learned that I’m partly responsible for President Trump’s legal defense.
On the screen was one of the president’s lawyers, Alan Dershowitz, explaining his new position that impeachment requires “criminal-like behavior.” When the legal analyst Jeffrey Toobin interjected that “every single law professor” disagreed with him, Mr. Dershowitz rejoined that one professor — me! — was “completely” on his side.
Mr. Dershowitz encouraged Mr. Toobin to read a law review article I wrote on the impeachment of President Andrew Johnson, in which a former Supreme Court justice, Benjamin Curtis, successfully argued that no one should ever be punished for doing something that wasn’t a crime. Mr. Dershowitz apparently thought my article supported his view that even if Mr. Trump did everything the House has accused him of doing, the president shouldn’t be convicted because he hasn’t been accused of criminal behavior.
As an academic, my first reaction was to be grateful that someone had actually read one of my articles.
But as a legal academic, my second reaction was confusion. Even if you think impeachment requires a crime, as I do, that belief hardly supports the president’s defense or Mr. Dershowitz’s position. President Trump has been accused of a crime. Two in fact: “abuse of power” and “obstruction of Congress.”
The phrase “abuse of power” appears nowhere in the federal criminal code, which lists thousands of criminal laws passed by Congress over the years. But many crimes aren’t written down in codes. Crimes derived from the “common law” — the body of law developed from judicial opinions and legal treatises rather than statutes — have been a staple of American law for centuries. Today in many states, district attorneys routinely charge people with things like “assault,” “forgery” and “indecent exposure” even where no statute makes those things a crime.
Common-law crimes are no harder to define with precision than crimes written down in a statute. Ask any first-year law students for the common law’s definition of burglary and they’ll (hopefully) be able to tell you: “the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.” If someone is accused of burglary in a state where the crime isn’t defined by statute, no defense lawyer would respond by announcing that burglary is vague or made up. Burglary is an established crime, even where its definition exists only in legal treatises and judicial opinions.
President Trump’s defense falls apart for precisely the same reason. As with burglary, American legal treatises and judicial opinions have long recognized the criminal offense of “abuse of power,” sometimes called “misconduct in office.” In 1846, the first edition of the pre-eminent treatise on American criminal law defined this common-law offense as when “a public officer, entrusted with definite powers to be exercised for the benefit of the community, wickedly abuses or fraudulently exceeds them.” The treatise noted that such an officer “is punishable by indictment, though no injurious effects result to any individual from his misconduct.”
Anyone looking for a thorough takedown of @AlanDersh’s whole argument need only check out pgs 259 -266 of the 2019 epilogue to my book with @JoshuaMatz8, “To End A Presidency: The Power of Impeachment.” Just saying.
— Laurence Tribe (@tribelaw) January 28, 2020
"We do not know precisely what James Madison said on September 8, 1787, and we shouldn’t imply to the American people that we do—nor that we need to," argues the historian Mary Sarah Bilder. https://t.co/m0KapVLRiV
— John Mikhail (@_John_Mikhail) January 28, 2020
Here’s a scenario:
1. House Managers invoke Rules VII & XXIV to ask the CJ to subpoena Bolton & all relevant documents
2. CJ Roberts issues subpoena
3. Trump lawyers realize Senate can’t overrule this order
4. Trump sues Roberts in DC district court
— Laurence Tribe (@tribelaw) January 27, 2020
NEW: Trump turned the Senate floor Monday into an alternate-reality impeachment of Biden and Obama.
While Senate Rs discussed the real impeachment behind closed doors, Trump's lawyers acted out a virtual prosecution of his rivals.https://t.co/uJYrc43J3L
— Kyle Cheney (@kyledcheney) January 28, 2020
I would like to remind those of you that are excited that Republicans might agree to call witnesses of the time that Jeff Flake called for an FBI investigation of allegations that Kavanaugh had committed sexual assault—only to vote to approve his appointment to the Supreme Court.
— Julia Ioffe (@juliaioffe) January 28, 2020
Sleight #3: His throwing out a lot of things that sound like historical “fact” to establish his credibility. He’s trying to make the Senators think that he is smarter and more learned than they.
Almost every “fact” he’s stated thus far, is irrelevant.
Sleight #4: Dersh says that he’s not implying that the Senate is not “legally bound” to the arguments that impeachment requires a crime.
FOLKS, DERSH JUST GAVE AWAY THE WHOLE GAME. If the Senate, in it’s power, is not legally bound to find a crime, THEN A CRIME IS UNNECESSARY.
It has NOTHING TO DO with the finding of a crime. Game set match.
Dersh: For Congress to ignore the words of the Constitution itself, would place Congress about the law.
Again, Dersh JUST TOLD YOU that Congress can do just that. You’re just supposed to forget that as he continues talking.
He’s got no historical evidence that “abuse of power” was specifically excluded by the Framers. Because, of course they excluded no such thing.
Evidence? Lol, it’s Derh y’all.
Sleight #8: Dersh is trying to parse… the jurisdiction of the court of impeachment from… the grounds for impeachment itself.
His argument only works if you think there is SPACE between what the House can impeach FOR, and what the Senate can convict for. Which there ISN’T.
All right, well here’s something: UNLIKE STARR… Dershowtiz at least admits his hypocrisy. He says that he hadn’t “researched” impeachment thoroughly enough when he spoke about the Clinton impeachment.
One only imagines what new thing he’ll research for his next defendant.
Sleight #9: Omg, he’s talking about the rule of lenity.
Okay peeps, this is an OLD standard of interpretation that says, basically, “tie goes to the defendant.”
If we still applied this rule today, we’d have to release more prisoners than I can estimate.
mentions Basically, we get out of “lenity” today by striking laws that are not sufficiently *definite* by ruling them unconstitutional as to vagueness.
I imagine that Dersh would LIKE to say Impeachment is unconstitutionally vague, but he can’t so… lenity.
Sleight #10: Dersh is making an argument for why Abuse of Power should NOT be grounds for impeachment. Because basically, it can be used politically.
Maybe, but of import here, Abuse of Power IS ground for impeachment, whether Dersh thinks it’s a good idea or not.
Dersh is arguing motive, like a good criminal defense attorney.
Unfortunately for Dersh, @realDonaldTrump actually told us his motive. On the call, he asked for an investigation into his political rivals. Motive established, counselor.
And then he gives a bad analogy, and says quid pro quo alone is not an abuse of power.
“Nothing in the Bolton revelations would rise to the level of abuse of power.”
… this is just wrong.
He’s wrong, because tying a quid pro quo to FOREIGN ELECTION INTERFERENCE, is the abuse of power.
International election interference: clearly an abuse of power.
Sleight #12: He’s back to maladministration, arguing that when it was rejected, they also rejected abuse of power.
He’s got nothing here. He keeps saying it together as if repetition makes it so, but he’s got no quote or, PRECEDENT, saying that abuse of power is not impeachable.
“By expressly rejecting maladministration, they implicitly rejected abuse.”
Again, he hasn’t come CLOSE to establishing that using any legal means: precedents, texts, nothing. He’s using the word “implicit” to serve the function of “take my word for it.”
Sleight #13: He’s naming all these things that the President might be impeached for (tweets, policies) and saying that this is the danger of “standardless impeachment.”
YEAH BUT, he’s not being impeach FOR A TWEET now is he, Dersh.
This, per usual, is the intellectually soft “slippery-slope” argument. Let’s just name some other random things that *could* happen (but won’t) if we do this ONE thing that clearly should happen.
Slippery slope arguments deserve C’s.
Sleight #14: “abuse of power and obstruction of congress are so far from what the Founders intended…”
You’ll notice that this is the first time he’s mentioned the obstruction charge. He doesn’t even have an argument for obstruction, he’s just roping it in there.
Sleight #15: Dersh is complaining that because his arguments have been roundly rejected by nearly everybody with standing, people should take his arguments seriously.
My four year old asks me to do this all the time.
Sleight #16: Dersh says that he would be making the same Constitutional arguments regardless of party.
YES. HE’S A CRIMINAL DEFENSE ATTORNEY. He would be making the arguments ON BEHALF OF THE ALLEGED CRIMINAL.
This is such a dumb argument.
I will close with what Dershowitz said 50 minutes before he stopped talking:
Dershowitz admitted that THE SENATE is not bound to the legal interpretation that impeachment requires a crime.
Literally, EVERYTHING he said after that was an dedicated attempt to obscure that torpedo he took to his own argument almost as soon as he began it.