Alan Dershowitz, the retired Harvard Professor of Law and well known defense attorney, has offered up a very interesting defense of Trump that deserves to be taken seriously, although I think it displays the limits of legal reasoning rather than the inadvisability of the impeachment proceedings. Dershowitz argues that an impeachment must be based on a violation of criminal law or something close to that, something that can be identified as a crime whether or not in the statutes, rather than on the rejection of a policy of the President where he is doing something of which the Congress may disapprove but is not outside his authority. Dershowitz argues that the Congress had in effect confessed to having engaged in this impropriety when they charged the President with “abuse of power” and “obstruction of Congress” because these charges are too vague to be impeachable offenses. They could have charged him with bribery or extortion, but did not, notwithstanding assertions that have been made by supporters of impeachment that a charge of bribery would run afoul of the way that crime is defined by statute as requiring a monetary transaction, which is not what happened in the case of Ukraine, where what Trump was asking for was an exchange of favors. Dershowitz cites Supreme Court Justice Curtis as his authority. At the time of the Johnson Impeachment, Curtis had argued that impeachment was not appropriate for this same reason. There was no crime, only the violation of the Tenure of Office Act, which had been passed only in order for Johnson to run afoul of it while carrying out his legitimate powers to pick his own cabinet. No real crime; no impeachment.
Invoking the Johnson trial, however, gets Dershowitz into the first of the quandaries that mess up his argument. The grounds for Johnson’s impeachment were more complicated than the Tenure of Office Act. The House was afraid that the pro-Southern Johnson would overturn the results of the war by reshuffling the Department of War so as to make the armies occupying the South ineffective. Johnson had said he wanted to defend the Constitution and for him that meant state sovereignty. Johnson wanted to get rid of all the generals who were in command in the South so that the rights of freedmen would no longer be enforced. The defeated Southerners had not relented in their disapproval of the North. Another Rebellion might well have been in the offing. And so maintaining the Secretary of War in his position was crucial to the objectives of Congress to somehow manage a Reconstruction that would alter the face of the South. They failed in that, but the attempt was still going on when Johnson was impeached.
Johnson’s real offense, therefore, was that he wanted to overturn the results of the Civil War. Was that a crime? It did not violate any statute but it was an abuse of power and so putting a legal face on that made sense. The intent of the Defense of Tenure Act was very serious, nothing less than to preserve the Union victory. That argument works both ways, however. The Congress had thought it needed some violation of law to serve as the basis of impeachment, and so that plays into the Dershowitz argument, but the onus that Johnson’s actions and remarks brought down on him was of a gravity to warrant thinking that only the extreme remedy of impeachment was capable of dealing with that offense. After all, it was remarkable that the North, at least, had remained intact throughout the war, Congress passing legislation about many other things than the war, such as Land Grant Colleges and a transcontinental railroad, and so it was not surprising that the real threat to the union came after the war was over and had to be addressed as the serious matter it was. So is it possible to separate out violations of law from affronts to the nature of the Union? Dershowitz thinks so, but I am not that sure.
What if Dershowitz is right? In that case, it would be very difficult to bring articles of impeachment which, Dershowitz and many others would argue, is just what the Founding Fathers had hoped, this just an ultimate remedy. But then the only impeachments that could be the easy ones, as was the case with Richard Nixon who had approved in his own office and on tape of conspiring to bribe people and cover up crimes. His were the actions of a guilty mind. Clinton was guilty only of betraying his wife and never felt he had betrayed his country. Was that enough to exonerate him? That would be too easy a standard. And there are all those other quasi-crimes that are weighty enough to warrant impeachment though they are somewhat short of violations of law that have not yet occurred but that might happen in the future. A President might engage in a wholesale attack on free speech or racial harmony without violating the law, just using his bully pulpit to poison citizens against one another. Never mind if a President shoots a fellow citizen on Fifth Avenue. What if he intimates that race war would not be a bad idea? Would Obama have been impeached if it turned out that he was a closet Farrakanite? That would be an abuse of power even if it only came close to being an incitement to riot. The Dershowitz holding would not allow the nation to come to terms with such outrages on the part of a duly elected President.
Dershowitz gets himself into a different legal tangle in addition to “the parade of horribles” that I have suggested. What was Trump’s intention in his “perfect” phone call? It was not, as his critics claim, to put himself in the hands of a foreign power. To the extent that was or is the case, it is Russia which pulls his strings. Ukraine is a dependant power and so is manipulated rather than the manipulator, and so what the Congress is saying is that you cannot toy with your dependants so as to illegally gain an advantage in domestic politics. The question of impeachment hangs on whether Trump intended to undermine Biden or, as his defenders suggest, contrary to what was said in that very phone call, to investigate corruption in general in Ukraine. It was either one or the other.
So did Trump or any other President faced with impeachment violate the letter of the law or the intent of the law? Dershowitz would say a President has to violate the letter of the law or at least of some law like criminal violation rather than the spirit of the Constitution as the impeachers think is the case. What we might consider the literalist view of the law and the Constitution is that only the wording of a statute need be consulted, in which case you could convict someone of crossing a stop sign near a railroad track that has long fallen into disuse rather than say that the intent of such a prohibition was that it apply only when the railroad track was in use. The intent of a law makes a difference. In similar fashion, if the intent of impeachment is to prevent a severe abuse of power, than that applies to Trump’s actions in Ukraine, whether or not there is a specific law barring the President from withholding funds-- though it appears that, in fact, it was illegal to withhold the funds, or at least so says the Government Accounting Office.
The point of the matter is that such judgments are subjective. There is no logical reason to prefer an interpretation of the law that considers only what a law says to an interpretation that includes a consideration of its intent, a law to be understood as inclusive of its intent. Either one can provide a feeling of satisfaction if you squint right, and so both sides of the current impeachment debate can feel righteous about what it is they maintain. Lawyers, however, are unwilling to consider these limits of legal argument and so will just fall back on declaring whichever side they maintain as the pure meaning of the law when it is the context of the case, which side one or another lawyer wants to prevail, that determines whether intent is included in the definition of a statute, Liberals tending to think that intent should be included while strict constructionists do not, although Liberals sometimes prefer a strict reading of the law, as in criminal law, where they want someone convicted only if the behavior meets as narrow a definition of the crime as possible. It all depends on your extra-legal point of view.
Consider a different issue where the law can be read as either inclusive or exclusive, that having to do with abortion rights, where the applicability of the law depends on extra legal considerations. Roe v. Wade guaranteed the right to abortion, pursuant to consultation with a doctor-- an element of the situation that no longer seems much invoked. Now, many states have passed laws that say abortion doctors have to have admitting priviledges at local hospitals, supposedly to increase the ability levels of those engaging in the practice, but actually a way to eliminate doctors who would not be welcome at local hospitals from taking on their roles in abortion clinics. So women have the right to an abortion but it is purely circumstantial that the doctors who attend them have to meet criteria put in place so as to make abortion more difficult. Is this a legitimate action on the part of the state or is it a violation of Roe v. Wade? The question boils down to whether the intent of Roe v. Wade is being violated or whether the state is exercising an independent power which happens to interfere with the right bestowed by Roe. That question cannot be settled by the law but by the politics of the moment, and so in that meta-legal sense, but only in that sense, is impeachment a political rather than a legal dispute.