Laurence Tribe is someone I’ve respected and followed for some time. So, when I saw he’d given an opinion in the Washington Post: ‘Trump’s lawyers shouldn’t be allowed to use bogus legal arguments on impeachment‘. It’s mainly in relation to the argument Alan Dershowitz is making in opposition to President Trump’s impeachment.
I’m obviously no scholar of the US Constitution. It’s not exactly a Need To Know document when you’re a New Zealander. However, over the years I believe I’ve picked a few things up.
More importantly, recently I’ve been listening to, and reading, some of the arguments. My conclusion is that Dershowitz is wrong. I do worry though, that my long-term opinion that Trump is unfit for any leadership role is influencing me.
The Republican Argument
Before we get to the disagreement between Tribe and Dershowitz, we need to know the argument Trump’s legal team are presenting in support of the president. As described by Tribe in the Washington Post article:
The president’s lawyers have made the sweeping assertion that the articles of impeachment against President Trump must be dismissed because they fail to allege that he committed a crime — and are, therefore, as they said in a filing with the Senate, “constitutionally invalid on their face.”
Tribe has this to say about their argument:
… these arguments are baseless. Senators weighing the articles of impeachment shouldn’t think that they offer an excuse for not performing their constitutional duty.
The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject, but it staggers on like a vengeful zombie. In fact, there is no evidence that the phrase “high Crimes and Misdemeanors” was understood in the 1780s to mean indictable crimes.
On the contrary, with virtually no federal criminal law in place when the Constitution was written in 1787, any such understanding would have been inconceivable. Moreover, on July 20, 1787, Edmund Randolph, Virginia’s governor, urged the inclusion of an impeachment power specifically because the “Executive will have great opportunitys [sic] of abusing his power.” Even more famously, Alexander Hamilton in Federalist 65 defined “high crimes and misdemeanors” as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
Any number of such violations of the public trust — such as working with foreign governments in ways that make the president beholden to their leaders, or cooperating with those governments to bolster the president’s reelection — clearly must be impeachable even though they might violate no criminal law and indeed no federal statute at all.
The Dershowitz Argument
Alan Dershowitz (Source: Wikipedia)
My understanding of Alan Dershowitz’s argument is that it has two prongs.
Firstly, he appears to consider that proving abuse of power is irrelevant. Now that he’s a Trump lackey, his opinion mirrors Trump’s i.e. it’s impossible for Trump to abuse power because, as president, he can do whatever he likes. He appears to base this on the “fact” that a sitting president cannot face indictment. (This “fact” appears never to have been tested, is not part of the constitution, and has no precedent.)
The other is that obstructing Congress is not an impeachable offence. To me, that’s an admission that Trump did obstruct Congress. Again Dershowitz seems to be relying on his opinion that Trump can do whatever he wants simply because he’s president.
Tribe has just as much difficulty making sense of Dershowitz’s argument. He has this to say:
The related suggestion that, even if some noncriminal offenses might be impeachable, “abuse of power” is not among them is particularly strange. No serious constitutional scholar has ever agreed with it. The suggestion turns the impeachment power on its head.
The Tribe Argument
One of the great things about Tribe is his eloquence in the face of a non-expert audience. Indeed it’s a feature of all the best experts: they’re able to discuss their field in a way we can all understand. The basis of Tribe’s argument, in his words (there’s more in the Washington Post article):
The logic of impeachment as applied to the presidency is that the president has unique authority conferred by Article II. If he abuses that authority for personal advantage, financial or political, he injures the country as a whole. That is precisely why the framers rejected the idea of relying solely on an election to remove an abusive president from office. Indeed, waiting for the next election is an option that is obviously insufficient when the abuse of power is directed at cheating in that very election.
Justice Joseph Story wrote in 1833 that there are “many” impeachable offenses, none of which is “alluded to in our statute book,” because the abuses of power that constitute “political offences” are “of so various and complex a character, so utterly incapable of being defined, or classified, that the task” of enumerating them all through “positive legislation would be impracticable.”
Dershowitz Takes a Leaf from Trump’s Book of Tricks (i.e. He Lies)
As if to match one great justice with another, Dershowitz on Sunday cited Justice Benjamin Curtis, a dissenter from the infamous Dred Scott decision. Curtis, after stepping down from the court, represented President Andrew Johnson in the 1868 impeachment trial and, Dershowitz claimed, prevailed by insisting that abuse of power is not an impeachable offense.
That is false. They actually lost a Senate majority … only because one senator appears to have been bribed to vote for the president. And, so far as the arguments themselves were concerned, Dershowitz is also misrepresenting. The fact is that Curtis, in his opening statement representing the president, and Attorney General Henry Stanbery, in his closing statement, insisted both that Johnson had broken no valid law and that he had not abused his presidential powers in any way.
…
Tribe then outlines the arguments made in the Johnson case.
Tribe’s Conclusion
Tribe says, “The president is entitled to robust legal representation.”
No reasonable person can, or should, disagree with that. Dershowitz himself has a client list that includes some high profile baddies. We should not hold that against him. Everyone should get the best legal representation possible, regardless of the circumstances.
However, as Tribe goes on to say, “But his lawyers should not be allowed to use bogus legal arguments to mislead the American public or the senators weighing his fate.”
Just What is up with Dershowitz
In recent years I’ve come to wonder if Trump doesn’t have something he’s holding over Dershowitz. I began saying that at the time the Epstein case came up again. Dershowitz was part of the legal team that gave him such a sweetheart deal, and was friends with Epstein.
Dershowitz is trying to make the point that his current opinion in relation to impeachment has undergone no change. However, as CNN is showing with video from previous impeachment trials, Dershowitz is taking a different position than he has in the past. Showing these videos to Dershowitz changes nothing in him; he doubles down. But the change is obvious to anyone. Trump’s actions are not defensible according to Dershowitz’s previous criteria. In fact, in the past he took basically the same position as Tribe.
Dershowitz also going to great lengths to state he’s still a liberal in his beliefs, and his position on Trump is one of principle. To me, that’s a sign that I’m not the only one wondering if there’s more to this than meets the eye.
To me, he even looks uncomfortable when talking about the issue.
Like some other people in Trump’s orbit, he seems to have lost the plot at bit. Small errors that someone like him would normally never make are happening. Tribe himself pointed one out during a Twitter battle between the two:
Oh for g-d’s sake, @AlanDersh, you’ve gotta be kidding! I’m not trying to “sensor” — or censor — anyone. Have you even lost the ability to get a figure of speech? Go ahead and keep talking. The more you say, the weaker your pretense to speak as Counsel for the Constitution gets. https://t.co/KAbJv50j8r
— Laurence Tribe (@tribelaw) January 20, 2020
Counsel for the Constitution
Another sign (to me at least) is that Dershowitz is trying to distance himself as much as possible from the rest of Trump’s legal team. He is insisting that he’s not really a part of it, and that he’s actually Counsel for the Constitution, not Trump. CNN Legal Advisor Jeffrey Toobin is a former student of Dershowitz. He thinks that Dershowitz is, “trying to have it both ways.” I can only agree.
I think this shows Dershowitz knows what he’s saying isn’t correct, and that there’s some other reason for taking this stance. He knows Trump isn’t fit to be president in any way. For some reason he’s arguing the opposite, and we can only speculate why.
New CNN Poll: 51% Want the Senate to Vote Trump Out of Office
I’m running out of time, so I’m going to be lazy and just copy this from the CNN website. If you go to the link you’ll be able to get more information:
About half of Americans say the Senate should vote to convict President Donald Trump and remove him from office in the upcoming impeachment trial (51%), according to a new CNN poll conducted by SSRS, while 45% say the Senate should vote against conviction and removal.
Nearly seven in 10 (69%) say that upcoming trial should feature testimony from new witnesses who did not testify in the House impeachment inquiry. And as Democrats in the Senate seek to persuade at least four Republican senators to join them on votes over allowing witnesses in the trial, the Republican rank and file are divided on the question: 48% say they want new witnesses, while 44% say they do not.
Note to Readers
I’m going to post this now as my body has reached the end of its tether. I’ll fix all the errors, including style and sentence structure errors, tomorrow. I’ll probably add more to the post too. Please feel free to let me know of any errors as I know there are a lot and I doubt I’ll pick them all up.
Another Note to Readers
Okay, it wasn’t “tomorrow”, but the next day. The impeachment trial is ongoing now. McConnell has made a minor adjustment to the rules, meaning arguments can be made over three days instead of two. Reportedly, the change came after vociferous complaints from his own caucus. Still, it’s not long enough, and senators will be sitting into the wee hours for several days in a row.
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Thanks for your always cogent discussion of the issues! I hope you’ll be feeling better soon!
Great analysis, thanks. Take care of yourself.
Thanks Colin. I’m looking forward to seeing you both again in a few days.
Dershowitz gets off on defending the indefensible. As we know, every person being judged is entitled to a legal defense. Many times this means a lawyer has to represent that person without having to believe in their innocence. Dershowitz loves this kind of challenge, especially when the trial has the highest possible profile. Dershowitz is in legal heaven.
The Dems clearly need to do what they can to counter Dershowitz’s arguments. My fear is that they won’t do it aggressively enough and that it will all be portrayed with the “both sides” argument we know so well now. I guess we’ll see. I’m going to tune in to the “show” in about 45 minutes from now.
Thanks for this Heather. I too admire Tribe and I’m glad he’s an advocate for impeachment. Unfortunately, McConnell is hell-bent on making sure the trial is a mockery. He wants the impeachment trial done by the weekend, packing 4 day 12-hour sessions for the House prosecutors and Trump’s lawyers. And if he allows witnesses, they will first be deposed behind closed doors. It’s a sham as I knew it would be (we’re talking McConnell here). Oh well, I guess it’s up to voters to decide the ultimate fate of the most corrupt POTUS and administration in American history. I sit on my hands and watch the country spiral down the toilet. The GOP is basically a criminal enterprise. “All the President’s Henchmen” to quote Nancy Pelosi.
“…wonder if Trump doesn’t have something he’s holding over Dershowitz…”
Putin has access to all the dirt on all of them, and of course all the US secret services will are being burrowed into from all directions.
I think it’s something related to Epstein. That appears to me when he went off the rails, and is what most of his denials of wrongdoing appear to be associated with. And remember, the (then) minor who had sex with Trump, and had a witness, did it at one of Epstein’s homes. I don’t know what Trump did to make that one go away, but it never even gets a mention along with all the other accusations these days.
You’re right about Putin too, of course.
You did an excellent job of going for the facts and you can never go wrong with advice from Mr. Constitution, Lawrence Tribe. He is the best. In fact, I believe the current Chief Justice was a student of his some time ago.
Dershowitz is a clown lawyer. He is so far off the reservation here it is a joke. I think they picked him to do this argument because he is about the only lawyer who believes it. Certainly no constitutional lawyers do. That is why they have Dershowitz. When he is done here he will go back to Fox news and thrill them with his BS over there. But what do I know…not much. I’m the strange one that said they would impeach Trump about two years back. Now, will they finish the job in the Senate, not likely. But the crook has been impeached .
You had the two year prediction because back then you still thought our institutions were strong/unbreakable/stalwart.
Now we know it is not true. Our institutions are only as good as those who hold the positions. Cheats are easy. Corruption normal. Lies a strategic weapon. Sad. While learning civics as a youth, I was never taught the obvious that a few corrupt politicians could overturn American democracy. We were taught the good and optimistic bits. A random exercise in playing a “what-if” scenario like a Trump presidency didn’t exist…unprecedented is never taught.
The sham trial is not going to be effective for the GOP.
Hi Heather. I see the direct reply button still doesn’t work. We fly out on Monday, and discovered by accident yesterday that there’s a new entry requirement, an Electronic Travel Authority, which we had to apply for online. Fortunately it only took a couple of minutes to arrive by email, but they warn it can take up to three days! I mention it here in case any of your overseas followers are planning a visit.
This one is mostly for Mark above but thought it might be a good time to mention. Back in our earliest days when the originals were creating the Constitution it was a different concept. When we see what the Senate has become today it might be good to remember. Senators were never to be elected by the common people and there was no running for the office. The Senators were to be appointed by the state legislatures and those chosen were to be of the highest quality the state could provide. People of the highest quality and character. The thought of the people being allowed to vote from any random quantity was simply not considered. That kind of democracy was not what they were after. Do you think they might have known what they were doing?
I’m always wondering what motivates characters like Dersh (or tRump, for that matter). Some bee in their bonnet engenders a need in them to throw rationality out the window and to further evil forces which are corrupting society. Unloved as a child?
To me, and I assume most of you, Trump is a very psychologically damaged character. Imo, one of the reasons is he’s still looking for the approval of his long-dead father. He’s the most powerful man in the world, but he’s constantly portraying himself as a victim. However, because of the way he’s pulled back from the Western alliance, NATO, and alliances with other democratic nations, he’s lessened the power of the US presidency and thus himself. At the same time, his actions have allowed Putin to manoeuvre himself international influence way beyond what he should have given his level of economic/political/etc. power.
In Dersh’s case, hasn’t he long devoted his career to legal stardom? As with people who seek positions in the Trump administration, they see it as their ticket to success. Once they start down that road, publicity and notoriety are coins of the realm and the keys to success.
All through the 3 years of the Trump administration, Dershowitz seemed to take contrary and baffling positions during his appearances on CNN. Jeffry Toobin, CNN’s resident legal mind and Dersh’s former student, often pointed out that Dersh’s positions seemed to contradict commonly accepted legal positions and even those previously held by him.
I suspect that Dersh played the contrarian because he knows that the MSM these days thrive on controversy. Once he started doing that in the Trump years, these positions were bound to be Trump-friendly as Toobin’s were against Trump. This got the attention of the Trump admin who are always on the lookout for a prominent legal scholar who has friendly legal positions and good TV chops. It was only a matter of time before Dersh got the call to play on the biggest stage there is.
I think he’s probably addicted to being in the spotlight too, whatever it takes. Just like Rudy. It somehow makes them feel more important/relevant/approved if they get attention on TV.
Very interesting, as we expect from you.
Note I had a little confusion and was highly puzzled by initially mistaking Mr Alan Dershowitz with IG Mr Michael Horowitz (well they are both ‘witzes’, ‘jokes’ in German, my only excuse).
Mr Schiff quoted Mr Alexander Hamilton:
“When a man unprincipled in private life desperate in his fortune, bold in his temper, possessed of considerable talents, having the ability of military habits—despotic in his ordinary demeanor—known to have scoffed in private at the principles of liberty—when such a man is seen to mount the hobby horse of popularity—to join in the cry of danger to liberty—to take every opportunity of embarrassing the General Government & bringing it under suspicion—to flatter and fall in with all the non sense of the zealots of the day—It may justly be suspected that his object is to throw things into confusion that he may ‘ride the storm and direct the whirlwind.”
Now I find it eerie how Mr Hamilton’s premonition -except for the ‘ability of military habits’- describes Mr Trump to a T. Even directing the whirlwind…. with a sharpie!
I fully agree with Mr Tribe that Mr Dershowitz’s argument is neither here nor there.
Abuse of power of the office for personal gain clearly is one of the reasons the US has the impeachment procedure in the first place.
Schiff has done a really good job here. His skills from his previous job as a lawyer have served him well. I suspect a lot of people are seeing him in a new light.
Paul, I like your answer. It doesn’t make me feel good about human integrity though. I will reluctantly admit, the tRump presidency has lowered my estimation of human dignity. I’m ashamed of my species.
Jeffrey Toobin was one of Dershowitz’s students, but he knows more about the constitution than Dershowitz ever did, and Tribe is many times smarter. Roberts, and Obama were students of Tribe I understand.
However bad most of us think Trump is, he is actually much worse. Most of his impeachable offenses have been done in broad daylight so how will he be defended. He won’t. Instead they will bring in the clowns to defend the clown with Fox lawyers. For the cult that surrounds Trump, it makes no different and the fix is in. All you need is a majority cult in the Senate, along with an AG as part of the cult and a Supreme Court as well.
Think of how stupid it will be when his defense team gets going today. They will highlight Biden and the corruption of Biden should be the real concern. No one believe that crap not even the liars gas lighting us. If Trump had really thought Biden did something in Ukraine, why would he not have put the full force of the U.S. intelligence and investigation agencies on it? Just think about it. He puts Rudy and Lev Parnas on the job. This president is much worse than crazy, he is also extremely stupid. Remember, all roads lead to Putin.
For many of those watching the last few days, it’s the first time they’ve heard much of the evidence against Trump. They only watch Fox, and listen to people sympathetic to him. It will have been quite an eye-opener for many. Even most Republicans now want to at least hear the evidence. We can only hope that it makes the public turn against Trump because that’s the only thing that will get GOP senators to vote for impeachment.
Of course, if that looks likely Trump will throw his toys on the floor and tell everyone he doesn’t want to play with them anymore, and it’s they’re all liars. Unfortunately, there will be a sizable minority who will stick with him. Then we’ll have to hope they don’t protest using weapons.
Now that the defense team has had a full day of taking, including the great Dershowitz argument do we hear the thunder of agreement from the crowd. I don’t watch Fox so I missed the thunder. What I did see besides the Bolton news that kind of buried the defense were constitutional opinions that contradict Dershowitz, to no surprise. One person even made note that he contradicted Alexander Hamilton on impeachment and that should end Dershowitz and his 15 minutes of fame.
I did note that Dershowitz himself said that more scholars disagreed with him than agreed with him. I think that’s another sign he’s only making this argument because for some reason (like blackmail) he has to. He knows he’s wrong, but can’t or won’t admit it. It’s either blackmail, he’s as enamored as a right-wing evangelical. or his need to be in the spotlight means he’ll do anything to get there.
When Dershowitz said that his position was in the minority among constitutional scholars, I imagine Trump yelled out “No!”. He would never do something like that.
I was very surprised to hear Dershowitz admit it. Jeffrey Toobin noted it on CNN later too.
Trump probably thinks people don’t agree with Dershowitz because it’s a never-Trump attitude, not because Dershowitz is wrong.