Dershowitz's Critics on the Right

The avalanche of denunciation that fell upon the head of Professor Alan Dershowitz after his address before the Senate’s impeachment proceeding was unsurprising.  In lending his stature and knowledge to the President’s defense, he, of course, became the enemy of Trump’s progressive pursuers.  The fact that Dershowitz is a lifetime Democrat and liberal made it worse.  The Left does not react well to apostasy.

But the adverse reaction to Dershowitz’s defense of the President emanated from the nominal right as well -- particularly from  National Review and the Dispatch.

Jonah Goldberg is not entirely persuaded that impeachable misconduct must be a defined criminal offense, as contended by Dershowitz. He thinks the very notion to be “logically, legally, morally, constitutionally, historically, and factually absurd.”  He cites first the remarks of Edmund Burke during the 1788 impeachment trial of Warren Hastings, Governor-General of India, suggesting that the House of Lords should not restrict its deliberations to the precepts of jurisprudence. The detail that Hastings was acquitted, Goldberg does not vouchsafe.

More importantly, the American Constitution dispenses with the British motion for a vote of no confidence. While the procedure of impeachment derives from the English tradition, impeachment under the provisions in Articles I and II is a procedure for removal on the basis of moral turpitude, not faulty performance. The British prime minister can be removed simply because a majority in Parliament think he is doing an unacceptably bad job. Churchill himself had to defend against a motion for a no confidence vote after Tobruk fell to Rommel’s Afrika Korps.  

Dershowitz’s critics insist that gross malfeasance must be a ground for impeachment.  Their refutations are a cornucopia of colorful hypothetical examples. “What if a president just walks off the job?” asks Goldberg. “Say the president decides to follow a Grateful Dead tribute band around the country for a year.”  Never thought of that, did you, Reader?

Now someone might object that the behavior described, suggesting insanity, would call for invocation of the 25th Amendment, by which the President is removed when the vice-president or a majority of the cabinet certify him to be incompetent.  But Goldberg has thought of that and points out that the 25thAmendment was only passed in 1967.  So before that, they must have relied upon the impeachment clause if the President went off his rocker.

Goldberg’s approach to statutory construction is innovative.  If a law (amendment) is passed to address a certain problem, it normally would be supposed that the hitherto existing law did not address it.  That is why a new law is necessary.  

While Woodrow Wilson did not have the opportunity to become infatuated with the Grateful Dead, he did suffer a debilitating stroke near the end of his administration.  As Dershowitz noted, he could not be impeached for that.  There was in the original 1787 text the Article II provision that let the vice-president take over in case of the president’s “Inability to discharge the powers and duties of the said office.”  No procedure for determining this inability was included.  What happened in the case of Wilson is a matter of some historical conjecture, but certainly impeachment was never involved.

Former federal prosecutor Andrew McCarthy suggests a president who “sits idle while a foreign power bombs Florida,” apparently not even negotiating with the foreign power to switch the locus of attack to a blue state. This shows that gross malfeasance without criminal offense can be the basis of impeachment.  But the example is a strange one.

If there were a genuine attack with mass destruction or invasion imminent and the president hid under his desk, the cumbersome process of impeachment and trial would be an unlikely recourse.  The intervention of the president’s national security advisers and vice-president, the invocation of the 25th Amendment, or extra-constitutional measures to deal with the emergency would be more probable.

The constitutional text says “bribery, treason or other high crimes and misdemeanors.” Must you not depart from it to include incompetence?

Both Goldberg and his former National Review colleague Romesh Ponnuru attach much importance to remarks by James Madison stipulating that the president could be impeached for inducing a crime by promising to pardon the criminal.  They seem to think that the president’s absolute pardon power would make this legal. But deliberately getting someone to commit a crime in exchange for a promised reward is itself a crime: criminal solicitation. If the President  intentionally entices criminal conduct he is himself guilty.

It is, moreover, extraordinary that both Goldberg and Ponnuru introduce this example as though it were hypothetical.  Is that not precisely what President Clinton did with Susan MacDougall? Was she not induced to defy a grand jury subpoena in the Whitewater investigation, jailed for the balance of Clinton’s second term, and then rewarded with a full pardon as he left office? Clinton was impeached all right, but never for that.

There is a certain selectivity in Goldberg’s use of Federalist No. 65 (Hamilton). He cites the famous passage in which Hamilton states that impeachment will concern political offenses, consisting in some “breach of the public trust.” Any offense for which presidential impeachment were brought undoubtedly would amount to that. This does not mean that the breach of public trust would not also be a prosecutable crime.

Hamilton observes, paraphrasing the final paragraph of Article I, Section 3:

[T]he punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.

How could the impeached president be subject to prosecution and punishment “in the ordinary course of law” if the grounds of impeachment were not also cognizable criminal offenses?  Dershowitz’s critics may reply that this merely covers a subset of impeachable offenses, but does it not suggest that actual criminal behavior was what the Founders had in mind?

At this point Goldberg argues that there were no federal criminal statutes at the time the Constitution went into effect and so if impeachment had to be based upon commission of a crime, nothing then would have constituted an impeachable offense.

Dershowitz actually covers the point, referring to the arguments of Andrew Johnson’s defender, Justice Benjamin Curtis.  Apart from the fact that federal criminal statutes would follow in short order, when the Constitution went into effect, common law crimes were regarded as cognizable federal offenses, even if notated only in state criminal codes.  

In fact, the constitutional text does not refer to “crimes against the United States,” although Curtis used that phrase.  Murder was a crime in 18th-century America. Murder today is not typically a federal offense apart from such esoteric exceptions  as assassination of the president and terrorism.  It obviously is defined in state criminal statutes. President Trump may have said that his followers would remain loyal even if he shot someone on Fifth Avenue, but I doubt that he would long remain president if he did so.  

McCarthy maintains that impeachment “is a common sense determination, though we more often refer to it as a political one.”  He elaborates, “the security of the United States” is the object of impeachment and “national security can be imperiled by an unfit president regardless of whether his acts are willful or negligent, and whether they take place before or during his presidency.”  Impeachment is not fundamentally a “legal problem” having a “strict legal test.”

How interesting that McCarthy’s advice to the President and his defenders in recent weeks has been precisely what would apply to a legal defense against criminal charges brought in a court of law.  Admit that Trump tried to extort a political investigation from the Ukrainians by withholding foreign aid but say that there was no investigation and they still got their aid (no harm, no foul). Let John Bolton be deposed before the Senate Judiciary Committee or stipulate that his testimony would be unfavorable. Get the president past conviction at the price of handing the Democrats a sword, or rather a poleax, to use against him in the election.

The reckless use of impeachment, removing the leader chosen by the American people at the ballot box because of policy differences and partisan hatred, is itself a threat to national security. It eviscerates the national comity and puts civil war on the horizon. Goldberg takes exception to the notion that the trial and removal of the President is a “draconian measure.”  It is really not that big a deal -- Congress chooses “to fire the chief executive.”  No, the people of the United States do that themselves if they wish, after four years, with the members of the Electoral College their only representatives.

Still in Federalist Number 65, Hamilton refers to the “awful discretion which a court of impeachment must necessarily have” and foresees “the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.”  What regulated the Democrats’ decision in the House of Representatives when they impeached President Trump?  What will regulate the decision to impeach in the future, if the machinations of Pelosi, Schiff, and Nadler form the precedent?

The avalanche of denunciation that fell upon the head of Professor Alan Dershowitz after his address before the Senate’s impeachment proceeding was unsurprising.  In lending his stature and knowledge to the President’s defense, he, of course, became the enemy of Trump’s progressive pursuers.  The fact that Dershowitz is a lifetime Democrat and liberal made it worse.  The Left does not react well to apostasy.

But the adverse reaction to Dershowitz’s defense of the President emanated from the nominal right as well -- particularly from  National Review and the Dispatch.

Jonah Goldberg is not entirely persuaded that impeachable misconduct must be a defined criminal offense, as contended by Dershowitz. He thinks the very notion to be “logically, legally, morally, constitutionally, historically, and factually absurd.”  He cites first the remarks of Edmund Burke during the 1788 impeachment trial of Warren Hastings, Governor-General of India, suggesting that the House of Lords should not restrict its deliberations to the precepts of jurisprudence. The detail that Hastings was acquitted, Goldberg does not vouchsafe.

More importantly, the American Constitution dispenses with the British motion for a vote of no confidence. While the procedure of impeachment derives from the English tradition, impeachment under the provisions in Articles I and II is a procedure for removal on the basis of moral turpitude, not faulty performance. The British prime minister can be removed simply because a majority in Parliament think he is doing an unacceptably bad job. Churchill himself had to defend against a motion for a no confidence vote after Tobruk fell to Rommel’s Afrika Korps.  

Dershowitz’s critics insist that gross malfeasance must be a ground for impeachment.  Their refutations are a cornucopia of colorful hypothetical examples. “What if a president just walks off the job?” asks Goldberg. “Say the president decides to follow a Grateful Dead tribute band around the country for a year.”  Never thought of that, did you, Reader?

Now someone might object that the behavior described, suggesting insanity, would call for invocation of the 25th Amendment, by which the President is removed when the vice-president or a majority of the cabinet certify him to be incompetent.  But Goldberg has thought of that and points out that the 25thAmendment was only passed in 1967.  So before that, they must have relied upon the impeachment clause if the President went off his rocker.

Goldberg’s approach to statutory construction is innovative.  If a law (amendment) is passed to address a certain problem, it normally would be supposed that the hitherto existing law did not address it.  That is why a new law is necessary.  

While Woodrow Wilson did not have the opportunity to become infatuated with the Grateful Dead, he did suffer a debilitating stroke near the end of his administration.  As Dershowitz noted, he could not be impeached for that.  There was in the original 1787 text the Article II provision that let the vice-president take over in case of the president’s “Inability to discharge the powers and duties of the said office.”  No procedure for determining this inability was included.  What happened in the case of Wilson is a matter of some historical conjecture, but certainly impeachment was never involved.

Former federal prosecutor Andrew McCarthy suggests a president who “sits idle while a foreign power bombs Florida,” apparently not even negotiating with the foreign power to switch the locus of attack to a blue state. This shows that gross malfeasance without criminal offense can be the basis of impeachment.  But the example is a strange one.

If there were a genuine attack with mass destruction or invasion imminent and the president hid under his desk, the cumbersome process of impeachment and trial would be an unlikely recourse.  The intervention of the president’s national security advisers and vice-president, the invocation of the 25th Amendment, or extra-constitutional measures to deal with the emergency would be more probable.

The constitutional text says “bribery, treason or other high crimes and misdemeanors.” Must you not depart from it to include incompetence?

Both Goldberg and his former National Review colleague Romesh Ponnuru attach much importance to remarks by James Madison stipulating that the president could be impeached for inducing a crime by promising to pardon the criminal.  They seem to think that the president’s absolute pardon power would make this legal. But deliberately getting someone to commit a crime in exchange for a promised reward is itself a crime: criminal solicitation. If the President  intentionally entices criminal conduct he is himself guilty.

It is, moreover, extraordinary that both Goldberg and Ponnuru introduce this example as though it were hypothetical.  Is that not precisely what President Clinton did with Susan MacDougall? Was she not induced to defy a grand jury subpoena in the Whitewater investigation, jailed for the balance of Clinton’s second term, and then rewarded with a full pardon as he left office? Clinton was impeached all right, but never for that.

There is a certain selectivity in Goldberg’s use of Federalist No. 65 (Hamilton). He cites the famous passage in which Hamilton states that impeachment will concern political offenses, consisting in some “breach of the public trust.” Any offense for which presidential impeachment were brought undoubtedly would amount to that. This does not mean that the breach of public trust would not also be a prosecutable crime.

Hamilton observes, paraphrasing the final paragraph of Article I, Section 3:

[T]he punishment which may be the consequence of conviction upon impeachment is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.

How could the impeached president be subject to prosecution and punishment “in the ordinary course of law” if the grounds of impeachment were not also cognizable criminal offenses?  Dershowitz’s critics may reply that this merely covers a subset of impeachable offenses, but does it not suggest that actual criminal behavior was what the Founders had in mind?

At this point Goldberg argues that there were no federal criminal statutes at the time the Constitution went into effect and so if impeachment had to be based upon commission of a crime, nothing then would have constituted an impeachable offense.

Dershowitz actually covers the point, referring to the arguments of Andrew Johnson’s defender, Justice Benjamin Curtis.  Apart from the fact that federal criminal statutes would follow in short order, when the Constitution went into effect, common law crimes were regarded as cognizable federal offenses, even if notated only in state criminal codes.  

In fact, the constitutional text does not refer to “crimes against the United States,” although Curtis used that phrase.  Murder was a crime in 18th-century America. Murder today is not typically a federal offense apart from such esoteric exceptions  as assassination of the president and terrorism.  It obviously is defined in state criminal statutes. President Trump may have said that his followers would remain loyal even if he shot someone on Fifth Avenue, but I doubt that he would long remain president if he did so.  

McCarthy maintains that impeachment “is a common sense determination, though we more often refer to it as a political one.”  He elaborates, “the security of the United States” is the object of impeachment and “national security can be imperiled by an unfit president regardless of whether his acts are willful or negligent, and whether they take place before or during his presidency.”  Impeachment is not fundamentally a “legal problem” having a “strict legal test.”

How interesting that McCarthy’s advice to the President and his defenders in recent weeks has been precisely what would apply to a legal defense against criminal charges brought in a court of law.  Admit that Trump tried to extort a political investigation from the Ukrainians by withholding foreign aid but say that there was no investigation and they still got their aid (no harm, no foul). Let John Bolton be deposed before the Senate Judiciary Committee or stipulate that his testimony would be unfavorable. Get the president past conviction at the price of handing the Democrats a sword, or rather a poleax, to use against him in the election.

The reckless use of impeachment, removing the leader chosen by the American people at the ballot box because of policy differences and partisan hatred, is itself a threat to national security. It eviscerates the national comity and puts civil war on the horizon. Goldberg takes exception to the notion that the trial and removal of the President is a “draconian measure.”  It is really not that big a deal -- Congress chooses “to fire the chief executive.”  No, the people of the United States do that themselves if they wish, after four years, with the members of the Electoral College their only representatives.

Still in Federalist Number 65, Hamilton refers to the “awful discretion which a court of impeachment must necessarily have” and foresees “the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.”  What regulated the Democrats’ decision in the House of Representatives when they impeached President Trump?  What will regulate the decision to impeach in the future, if the machinations of Pelosi, Schiff, and Nadler form the precedent?