Monday, February 3, 2020

Let Us Bury Prof. Dershowitz' Inane Impeachment Theory

By David Post - February 03, 2020 at 08:03AM

Much has been written about what Prof. Alan Dershowitz's idiosyncratic (to put it mildly) views on the scope of the impeachment clause. Here's what he said Wednesday on the Senate floor, responding to a question about whether a quid pro quo can ever constitute an impeachable offense:

The only thing that would make the quid pro quo unlawful is if the quo were in some way illegal. Now, we talked about motives.  There are three possible motives a public official might have.  The first is in the public interest…. The second is in his own political interest. And the third would be in his own financial interest, just putting money in the bank….

I want to focus on the second. Every public official believes that his election is in the public interest…. And if a president does 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.

The emphasis, I think it's fair to say after watching the video, is Professor Dershowitz's.

He clarified his position on Friday morning in an NPR interview:

NPR:  Some people understood you to say the president can do anything to get reelected just by saying his reelection is in the public interest. Did you mean to say the president can do anything?

DERSHOWITZ: I not only didn't mean to say it. I didn't say it. I never said anything like that. In fact, in the beginning of my statement, I talked about how strongly I supported the impeachment of Richard Nixon. Obviously, Richard Nixon committed many crimes in an effort to get reelected. He thought his reelection was in the public interest. My response was to a question about quid pro quo. The question was, if a person does something completely legal, the president does something legal completely within his power, but he was motivated in part by a desire to get reelected, would that turn that motive into a corrupt motive? And my answer was, no, it wouldn't turn into a corrupt motive. It would turn it into a political motive. But if he did something unlawful, if he did something improper, if he did something that violated the law, clearly a good motive would not serve as a justification.

I gave as an example President Lincoln, who called the troops back from the battlefield to go to Indiana to vote for the Republicans in Indiana. He was motivated in part by the public interest. He was motivated in part by his partisan interests. That clearly would not be an impeachable offense.

Law professors—even Harvard law professors—say a lot of ridiculous things from time to time, and I do not ordinarily use this platform to comment on them. Dershowitz's preposterous theory—that "purely noncriminal conduct including abuse of power and obstruction of Congress are outside the range of impeachable offenses," as he put it in his lengthy House testimony—has, as far as I can tell, virtually no support in the legal community. Quite the opposite; it has been roundly condemned and thoroughly discredited by scholars and commentators across a very broad spectrum of opinion and political persuasion, from Phillip Bobbitt and Laurence Tribe to Jonathan Turley (yes, the same Jonathan Turley who testified on behalf of the Republicans in the House impeachment hearings) to John Dean to my co-bloggers Keith Whittington, Ilya Somin, and Josh Blackman.

The only people other than Prof. Dershowitz himself (and Benjamin Curtis, White House Counsel to Pres. Andrew Johnson**) who took it seriously are those Republican Senators for whom it conveniently served as a kind of Harvard-certified constitutional patina for their decision not to call any witnesses to the impeachment trial: "After all, as Prof. Dershowitz demonstrated, even if the President's quid (military assistance) was offered explicitly and intentionally in exchange for the sole quo of Ukrainian help in discrediting a political opponent—even if John Bolton had secretly taped Trump saying that very thing to Zelensky ("You're not getting a nickel, Mr. Z., until I hear on CNN that you're investigation Joe Biden")—the President cannot be removed from office. So what's the point of hearing additional evidence on the matter?"

** Curtis advanced a version of the Dershowitz theory—which should perhaps be called the Dershowitz-Curtis theory, in honor of the only two prominent legal scholars who have adopted it—at Johnson's impeachment trial, and Dershowitz, in his extended remarks earlier in the week in the President's defense, cited to Curtis (and to no one else) in support of his theory no fewer than 24 separate times.

For a professor of constitutional law, this is quite an achievement: Concocting some personal theory, mostly out of constitutional fluff and nonsense, and then persuading people at the highest reaches of the US government to adopt it and act upon it! This would ordinarily be cause for congratulations, but I very much doubt that history will congratulate Prof. Dershowitz for his accomplishment.

I don't claim to be an expert with any deep knowledge of the history of the Impeachment Clause.  But one hardly has to be an expert to see how thoroughly odious and dangerous the Dershowitz-Curtis theory is.

A few examples. Remember Nixon's "enemies list"?  The American people, Prof. Dershowitz is telling us, cannot remove from office a president who orders the IRS and other federal agencies to harass those on the list of his political opponents.  Or a president who withholds federal highway funds earmarked for State X until the State agrees to disable some fraction of the voting machines in its big cities. Not impeachable. The president tells the leader of Y that (quid) he will veto any NATO action to counter Y's upcoming invasion of Z, as long as Y invests $100 million in a disinformation plan targeting the president's opponent in the upcoming election. Nothing we can do about it until that president is up for re-election.

Keith Whittington gives his own examples:

A president who brazenly granted pardons to minions who engaged in criminal activity to advance the president's own goals should not be tolerated until election day. A president who categorically refused to cooperate in any way with congressional investigations into misconduct in the executive branch need not be tolerated for another four years. A president who sweepingly refused to enforce laws with which he disagreed under the cloak of prosecutorial discretion need not be left in the position of chief executive. A president who rashly used American military power to assassinate American citizens and foreign leaders abroad or invited cataclysmic war need not be left as commander in chief. A president who stubbornly refused to use military force to protect American citizens and territory from foreign military aggression need not be left to serve out his term. A president who directed executive branch officials to use all available lawful tools to harass and intimidate their political enemies without any credible rationale for doing so need not be left in office to continue his campaign of governmental harassment.

According to Dershowitz, a president who did any of these things—indeed, a president who did all of these things—cannot be removed from office.

That is pernicious nonsense. As Whittington correctly points out, it is "contrary to the very purpose of including the impeachment power in the constitutional scheme. The framers recognized that the president, and other government officers, might abuse the discretionary power with which they are entrusted and they might do so in ways that are simply intolerable."

And incidentally, the example Dershowitz uses in support of the D-C theory is telling: Lincoln, he argued, could not be impeached for "call[ing] the troops back from the battlefield to go to Indiana to vote for the Republicans in Indiana," even if he was motivated "by his partisan interests."

Now, Lincoln didn't do what Dershowitz said he did. He didn't actually order that the troops be allowed to go "vote for the Republicans" in Indiana; he ordered that the troops be allowed to go vote, period—in the hope and expectation, of course, that they would vote Republican.

But suppose he had allowed them to return home only if they would "vote for the Republicans"? What if he let the soldiers return home only if they took an oath to vote Republican? Or if he gave those willing to take such an oath (but not others) $20 to defray their traveling costs?

In Dershowitz' view, that could not be an impeachable offense; Lincoln's "partisan motive" can't convert something not otherwise illegal into something for which he can constitutionally be removed from office.

If for some reason you are not deeply troubled by that outcome, do bear in mind that there might come a time when a president who does not share your particular political persuasion acts in this way.

Someone once defined chutzpah as the child who, after being convicted of murdering his/her parents, begs the court for mercy on the ground that he/she is an orphan.  I've got another illustration: Senators who say "Let the people decide in the 2020 election!" while simultaneously giving the President the tools to do whatever he wants and whatever he can, short of outright criminality, to distort that very process. We are likely to pay a high price for this perversion of our constitutional checks and balances, if not in 2020 then sometime down the road.

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