Michael Ejercito
2019-10-29 15:16:55 UTC
http://www.gatestoneinstitute.org/15069/impeachers-new-crimes
Impeachers Searching for New Crimes
by Alan M. Dershowitz
October 24, 2019 at 5:00 am
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Translations of this item:
German
The search for the perfect impeachable offense against President Trump is
reminiscent of overzealous prosecutors who target the defendant first and
then search for the crime with which to charge him. Or to paraphrase the
former head of the Soviet secret police to Stalin: show me the man and I
will find you the crime.
All civil libertarians should be concerned about an Alice in Wonderland
process in which the search for an impeachable crime precedes the evidence
that such a crime has actually been committed.
Under our constitutional system of separation of powers, Congress may not
compel the Executive Branch to cooperate with an impeachment investigation
absent court orders.
Conflicts between the Legislative and Executive Branches are resolved by the
Judicial Branch, not by the unilateral dictate of a handful of partisan
legislators. It is neither a crime nor an impeachable offense for the
president to demand that Congress seek court orders to enforce their
demands. Claims of executive and other privileges should be resolved by the
Judicial Branch, not by calls for impeachment.
The search for the perfect impeachable offense against President Trump is
reminiscent of overzealous prosecutors who target the defendant first and
then search for the crime with which to charge him. Or to paraphrase the
former head of the Soviet secret police to Stalin: show me the man and I
will find you the crime. (Photo by Tasos Katopodis/Getty Images)
The effort to find (or create) impeachable offense against President Donald
Trump has now moved from the subjects of the Mueller investigation --
collusion with Russia and obstruction of justice -- to alleged recent
political "sins": "quid pro quo" with Ukraine and obstruction of Congress.
The goal of the impeach-at-any-cost cadre has always been the same: impeach
and remove Trump, regardless of whether or not he did anything warranting
removal. The means -- the alleged impeachable offenses -- have changed, as
earlier ones have proved meritless. The search for the perfect impeachable
offense against Trump is reminiscent of overzealous prosecutors who target
the defendant first and then search for the crime with which to charge him.
Or to paraphrase the former head of the Soviet secret police to Stalin: show
me the man and I will find you the crime.
Although this is not Stalin's Soviet Union, all civil libertarians should be
concerned about an Alice in Wonderland process in which the search for an
impeachable crime precedes the evidence that such a crime has actually been
committed.
Before we get to the current search, a word about what constitutes an
impeachable crime under the constitution, whose criteria are limited to
treason, bribery or other high crimes and misdemeanors. There is a debate
among students of the constitution over the intended meaning of "high crimes
and misdemeanors." Some believe that these words encompass non-criminal
behavior. Others, I among them, interpret these words more literally,
requiring at the least criminal-like behavior, if not the actual violation
of a criminal statute.
What is not debatable is that "maladministration" is an impermissible ground
for impeachment. Why is that not debatable? Because it was already debated
and explicitly rejected by the framers at the constitutional convention.
James Madison, the father of our Constitution, opposed such open-ended
criteria, lest they make the tenure of the president subject to the
political will of Congress. Such criteria would turn our republic into a
parliamentary democracy in which the leader -- the prime minister -- is
subject to removal by a simple vote of no confidence by a majority of
legislators. Instead, the framers demanded the more specific criminal-like
criteria ultimately adopted by the convention and the states.
Congress does not have the constitutional authority to change these criteria
without amending the Constitution. To paraphrase what many Democratic
legislators are now saying: members of Congress are not above the law; they
take an oath to apply the Constitution, not to ignore its specific criteria.
Congresswoman Maxine Waters placed herself above the law when she said:
"Impeachment is about whatever the Congress says it is. There is no law that
dictates impeachment. What the Constitution says is 'high crimes and
misdemeanors,' and we define that."
So, the question remains: did President Trump commit impeachable offenses
when he spoke on the phone to the president of Ukraine and/or when he
directed members of the Executive Branch to refuse to cooperate, absent a
court order, with congressional Democrats who are seeking his impeachment?
The answers are plainly no and no. There is a constitutionally significant
difference between a political "sin," on the one hand, and a crime or
impeachable offenses, on the other.
Even taking the worst-case scenario regarding Ukraine -- a quid pro quo
exchange of foreign aid for a political favor -- that might be a political
sin, but not a crime or impeachable offense.
Many presidents have used their foreign policy power for political or
personal advantage. Most recently, President Barack Obama misused his power
in order to take personal revenge against Israeli Prime Minister Benjamin
Netanyahu. In the last days of his second term, Obama engineered a one-sided
UN Security Council resolution declaring that Israel's control over the
Western Wall -- Judaism's holiest site -- constitutes a "flagrant violation
of international law." Nearly every member of Congress and many in his own
administration opposed this unilateral change in our policy, but Obama was
determined to take revenge against Netanyahu, whom he despised. Obama
committed a political sin by placing his personal pique over our national
interest, but he did not commit an impeachable offense.
Nor did President George H. W. Bush commit an impeachable offense when he
pardoned Caspar Weinberger and others on the eve of their trials in order to
prevent them from pointing the finger at him.
This brings us to President Trump's directive with regard to the impeachment
investigation. Under our constitutional system of separation of powers,
Congress may not compel the Executive Branch to cooperate with an
impeachment investigation absent court orders. Conflicts between the
Legislative and Executive Branches are resolved by the Judicial Branch, not
by the unilateral dictate of a handful of partisan legislators. It is
neither a crime nor an impeachable offense for the president to demand that
Congress seek court orders to enforce their demands. Claims of executive and
other privileges should be resolved by the Judicial Branch, not by calls for
impeachment.
So, the search for the holy grail of a removable offense will continue, but
it is unlikely to succeed. Our constitution provides a better way to decide
who shall serve as president: it's called an election.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at
Harvard Law School and author of The Case Against the Democratic House
Impeaching Trump, Skyhorse Publishing, 2019.
Impeachers Searching for New Crimes
by Alan M. Dershowitz
October 24, 2019 at 5:00 am
Send
Share664
Translations of this item:
German
The search for the perfect impeachable offense against President Trump is
reminiscent of overzealous prosecutors who target the defendant first and
then search for the crime with which to charge him. Or to paraphrase the
former head of the Soviet secret police to Stalin: show me the man and I
will find you the crime.
All civil libertarians should be concerned about an Alice in Wonderland
process in which the search for an impeachable crime precedes the evidence
that such a crime has actually been committed.
Under our constitutional system of separation of powers, Congress may not
compel the Executive Branch to cooperate with an impeachment investigation
absent court orders.
Conflicts between the Legislative and Executive Branches are resolved by the
Judicial Branch, not by the unilateral dictate of a handful of partisan
legislators. It is neither a crime nor an impeachable offense for the
president to demand that Congress seek court orders to enforce their
demands. Claims of executive and other privileges should be resolved by the
Judicial Branch, not by calls for impeachment.
The search for the perfect impeachable offense against President Trump is
reminiscent of overzealous prosecutors who target the defendant first and
then search for the crime with which to charge him. Or to paraphrase the
former head of the Soviet secret police to Stalin: show me the man and I
will find you the crime. (Photo by Tasos Katopodis/Getty Images)
The effort to find (or create) impeachable offense against President Donald
Trump has now moved from the subjects of the Mueller investigation --
collusion with Russia and obstruction of justice -- to alleged recent
political "sins": "quid pro quo" with Ukraine and obstruction of Congress.
The goal of the impeach-at-any-cost cadre has always been the same: impeach
and remove Trump, regardless of whether or not he did anything warranting
removal. The means -- the alleged impeachable offenses -- have changed, as
earlier ones have proved meritless. The search for the perfect impeachable
offense against Trump is reminiscent of overzealous prosecutors who target
the defendant first and then search for the crime with which to charge him.
Or to paraphrase the former head of the Soviet secret police to Stalin: show
me the man and I will find you the crime.
Although this is not Stalin's Soviet Union, all civil libertarians should be
concerned about an Alice in Wonderland process in which the search for an
impeachable crime precedes the evidence that such a crime has actually been
committed.
Before we get to the current search, a word about what constitutes an
impeachable crime under the constitution, whose criteria are limited to
treason, bribery or other high crimes and misdemeanors. There is a debate
among students of the constitution over the intended meaning of "high crimes
and misdemeanors." Some believe that these words encompass non-criminal
behavior. Others, I among them, interpret these words more literally,
requiring at the least criminal-like behavior, if not the actual violation
of a criminal statute.
What is not debatable is that "maladministration" is an impermissible ground
for impeachment. Why is that not debatable? Because it was already debated
and explicitly rejected by the framers at the constitutional convention.
James Madison, the father of our Constitution, opposed such open-ended
criteria, lest they make the tenure of the president subject to the
political will of Congress. Such criteria would turn our republic into a
parliamentary democracy in which the leader -- the prime minister -- is
subject to removal by a simple vote of no confidence by a majority of
legislators. Instead, the framers demanded the more specific criminal-like
criteria ultimately adopted by the convention and the states.
Congress does not have the constitutional authority to change these criteria
without amending the Constitution. To paraphrase what many Democratic
legislators are now saying: members of Congress are not above the law; they
take an oath to apply the Constitution, not to ignore its specific criteria.
Congresswoman Maxine Waters placed herself above the law when she said:
"Impeachment is about whatever the Congress says it is. There is no law that
dictates impeachment. What the Constitution says is 'high crimes and
misdemeanors,' and we define that."
So, the question remains: did President Trump commit impeachable offenses
when he spoke on the phone to the president of Ukraine and/or when he
directed members of the Executive Branch to refuse to cooperate, absent a
court order, with congressional Democrats who are seeking his impeachment?
The answers are plainly no and no. There is a constitutionally significant
difference between a political "sin," on the one hand, and a crime or
impeachable offenses, on the other.
Even taking the worst-case scenario regarding Ukraine -- a quid pro quo
exchange of foreign aid for a political favor -- that might be a political
sin, but not a crime or impeachable offense.
Many presidents have used their foreign policy power for political or
personal advantage. Most recently, President Barack Obama misused his power
in order to take personal revenge against Israeli Prime Minister Benjamin
Netanyahu. In the last days of his second term, Obama engineered a one-sided
UN Security Council resolution declaring that Israel's control over the
Western Wall -- Judaism's holiest site -- constitutes a "flagrant violation
of international law." Nearly every member of Congress and many in his own
administration opposed this unilateral change in our policy, but Obama was
determined to take revenge against Netanyahu, whom he despised. Obama
committed a political sin by placing his personal pique over our national
interest, but he did not commit an impeachable offense.
Nor did President George H. W. Bush commit an impeachable offense when he
pardoned Caspar Weinberger and others on the eve of their trials in order to
prevent them from pointing the finger at him.
This brings us to President Trump's directive with regard to the impeachment
investigation. Under our constitutional system of separation of powers,
Congress may not compel the Executive Branch to cooperate with an
impeachment investigation absent court orders. Conflicts between the
Legislative and Executive Branches are resolved by the Judicial Branch, not
by the unilateral dictate of a handful of partisan legislators. It is
neither a crime nor an impeachable offense for the president to demand that
Congress seek court orders to enforce their demands. Claims of executive and
other privileges should be resolved by the Judicial Branch, not by calls for
impeachment.
So, the search for the holy grail of a removable offense will continue, but
it is unlikely to succeed. Our constitution provides a better way to decide
who shall serve as president: it's called an election.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at
Harvard Law School and author of The Case Against the Democratic House
Impeaching Trump, Skyhorse Publishing, 2019.
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