The flawed case of Alan Dershowitz

A year and a half ago, I debated Alan Dershowitz on National Public Radio about the standards for impeaching a president. I followed his arguments in the impeachment trial of President Trump this week. I can attest that since 1999, when he affirmed that abuse of power was an impeachable offense, his position has changed not once, but twice, and that the third version presented in his case is flawed both logically and historically.

Although Dershowitz said he had not done the necessary research more than two decades ago, his new research has spawned two inconsistent positions in the year and a half between our debate and his testimony. During our debate, Dershowitz said, “I read the Constitution as requiring an indictable crime” for impeachment. This claim, he explained, was the “central feature” of his book “The Case Against Impeaching Trump.”

Apparently, he realized his central claim was too extreme for the Senate. At the trial, he transmuted the commission of an “indictable crime” into “criminal like conduct.” Dershowitz said the position that he “derived from history” would include “criminal like conduct akin to treason and bribery.” He continued, “There need not be, in my view, conclusive evidence of a technical crime that would necessarily result in a criminal conviction.”

His third take on impeachment does not withstand scrutiny. None of the Framers said impeachment requires a statutory crime or even “criminal like conduct.” So Dershowitz therefore distorts their views. His testimony rested primarily on a quote from the Constitutional Convention delegate Gouverneur Morris, who said, “Corruption and some other offenses ought to be impeachable, but the cases ought to be enumerated and defined.”

Dershowitz argued “the great fallacy of many contemporary scholars and pundits and, with due respect, members of the House” is their failure to heed the call by Morris for “the carefully enumerated and defined criteria that should authorize the deployment of this powerful weapon.” However, Dershowitz never disclosed the fact that Morris later said debates in the Constitutional Convention convinced him to embrace a more expansive view of impeachment. Morris declared, “The executive ought therefore to be impeachable for treachery, corrupting his electors and incapacity.”

Dershowitz strings together his own opposition to impeachment for abuse of power with a snippet from James Madison that a president would then serve “at the pleasure of the legislature.” But this juxtaposition is clearly misleading. Madison was objecting only to impeaching a president for maladministration rather than abuse of power. Contrary to Dershowitz, Madison affirmed impeachment as “indispensable” for defending against “the incapacity, negligence, or perfidy of the chief magistrate.” Madison warned that a president “might pervert his administration into a scheme of peculation or oppression” or even “betray his trust to foreign powers.”

Dershowitz, quoting Alexander Hamilton, said impeachment will “proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust.” He continued, “They are of a nature which may with peculiar propriety be denominated political as they relate chiefly to injuries done immediately to society itself.” In explaining away the plain meaning of what Hamilton wrote, Dershowitz puts words into his mouth.

Dershowitz then declared that “Hamilton was not expanding the specified criteria to include as independent grounds for impeachment, misconduct, abuse, or violation.” He added, “If anything, he was contracting them to require, in addition to proof of the specified crimes, also proof that the crime must be of a political nature.” This is simply what Dershowitz said. Nowhere within the Federalist Papers or his other writing does Hamilton endorse this kind of double barreled requirement for an impeachment.

Defenders of Trump moor their sinking ship on the claim by Dershowitz that even if the president conditioned release of the secretly withheld aid on a Ukrainian investigation of his rival, that it would not “rise to the level of an abusive power or an impeachable offense.” This argument fails both logically and historically. The abuse of power by the president is not truly maladministration, as Dershowitz has said, but constitutes the treachery, perfidy, and corruption of his electors, and betrayal of “his trust to foreign powers.” It even fits the criterion of Dershowitz for “criminal like behavior” because it is at minimum similar to the crimes of bribery and extortion.

In an opinion column that Dershowitz wrote for the Washington Examiner two and a half years ago, denying that the president obstructed justice in firing James Comey, he said, “Everyone who cares about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.” Surely, the Constitution demands that we can protest and remove a president who expands his power and authority to pressure a foreign nation “to get” his political opponents.

Allan Lichtman is an election forecaster and distinguished professor of history at American University. He is the author of the forthcoming book “Repeal the Second Amendment” and is on Twitter at @AllanLichtman.