Extreme impeachment argument further exposes Trump’s imperial presidency

Here’s a test of your understanding of the impeachment clause of the Constitution. Which of the following presidential conduct can constitutionally be the basis for impeachment, conviction and removal from office?     

(a) the president allows the Russian army to invade and occupy Alaska while ordering the American military to stand down;         

(b) the president declassifies top-secret information, including strategic military plans, the nation’s nuclear launch codes, the identity of CIA spies and troop dispositions;        

(c) the president grants pardons to every narcotics trafficker, organized crime figure and international terrorist incarcerated in federal prisons;       

(d) the president lies under oath about an extramarital affair.      

You might have answered (a), (b), and (c) or “all of the above.” But according to Harvard law professor and Trump attorney Alan Dershowitz, the correct answer is (d), lying under oath, because it is the only conduct involving a criminal law violation.  

Under his theory, the other incalculably catastrophic conduct only involved the president’s exercise of his power as commander-in-chief, including the power to declassify information, or his power to grant pardons, which did not violate criminal law and therefore cannot be a basis for removal (Dershowitz actually gave the Alaska example as a non-impeachable offense; I added (b), and (c)).  

Constitutional experts have debunked this theory. Indeed, as has been widely noted, Dershowitz once said the opposite about the constitutional requirements for impeachment and removal: “It certainly doesn’t have to be a crime.” Sen. Lindsey Graham (R-S.C.) once said the same thing too.

Nonetheless, this argument is about to air in the most solemn forum imaginable, the Senate trial of an impeached president, when Dershowitz steps to the podium to defend Trump from conviction and removal. If the Democrats’ case for is so weak, as the Republicans insist, why resort to such an extreme argument?

In fact, the Trump defense team may have created a live political hand grenade that could harm Republican prospects in the coming elections. Last July Trump drew criticism for sounding very much like a king when he told a conference of young conservatives that the Constitution says “I have the right to do whatever I want as president.” By eviscerating the congressional impeachment powers the Dershowitz argument further highlights Trump as an imperial president.  

Presidents have frequently pushed the envelope of their constitutional powers, especially in wartime. But in general they avoided looking imperial because it so directly undercuts America’s founding narrative in which the men who signed the Declaration of Independence pledged “our Lives, our Fortunes and our Sacred Honor” to free themselves and their countrymen from a king.   

Trump seems to love acting like, well, a king. He refused to cooperate with congressional investigations, even the impeachment inquiry; asked foreign adversaries to interfere in U.S. elections; unashamedly earned money when persons with U.S. government business booked his hotels; openly admired and praised foreign autocrats; demanded a military parade; declared that the weather is what he, and not the National Weather Service, says it is; and — well, it’s a long list.

Perhaps the White House’s bet is that Americans have an inner royal subject that secretly yearns for a strong, unrestrained leader to rule them. But I don’t think that we have changed that much since the delegates to the Constitutional Convention spent weeks considering and rejecting such titles for the chief executive as “His Exalted Highness” before settling on the humble “president.” Polls consistently show that most Americans fear a government that is too powerful, which Democrats have often overlooked to their sorrow (Sens. Bernie Sanders (I-Vt.) and Elizabeth Warren (D-Mass.), pay special attention).

Now, through Dershowitz, Trump is advancing the regal argument that, as long as the president avoids violating the criminal law, “the king can do no wrong,” regardless of how much he abuses the powers of his office and endangers or damages the country.  

Americans don’t want a king. Republicans and Trump may pay a price in November because a law professor dreamed up an argument worthy of one.

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.