Why not add in a little Johnny Cochran to all this Dream Team debate? Alas, Alan Dershowitz never does invoke the famous OJ Simpson trial refrain, but he does argue that the allegations in the House’s articles of impeachment are constitutionally irrelevant. Dershowitz plans to make that argument on the Senate floor during the trial of Donald Trump, an argument that Adam Schiff called “absurdist” in the preceding segment on ABC’s This Week yesterday:
SCHIFF: Well, that’s the argument I suppose you have to make if the facts are so dead set against you, if the president has admitted to the wrongdoing, his chief of staff has confessed to the wrongdoing, his European Union ambassador has confessed to the same quid pro quo, you have to rely on an argument that even if he abused his office in this horrendous way, that it’s not impeachable, you had to go so far out of the mainstream to find someone to make that argument, you had to leave the realm of constitutional law scholars and go to criminal defense lawyers.
Even Professor Turley, who testified on behalf of House Republicans, couldn’t make that argument, in fact, in the House made exactly the opposite argument, that abuse of power is at the center of what the framers intended an impeachable offense to be. The logic of that absurdist position that’s being now adopted by the president is he could give away the state of Alaska, he could withhold execution of sanctions on Russia for interfering in the last election, to induce or coerce Russia to interfere in the next one.
That would have appalled — the mere idea of this would have appalled the founders, who were worried about exactly that kind of solicitation of foreign interference in an election for a personal benefit, the danger it poses to national security. That goes to the very heart of what the framers intended to be impeachable.
Actually, Turley did make that argument, and made it very well. The House may have made the opposite argument, as Schiff said, but that doesn’t mean it was the correct argument. It just meant that they had a bare majority to allow impeachment on a straight party-line vote. Isn’t the “Trump could give away Alaska” argument at least slightly more absurdist? Not only didn’t Trump even mention Alaska, all he did in this case was delay US aid to Ukraine, which makes Schiff’s comments ludicrously hysterical and hyperbolic. If Trump did try to give away Alaska without involving Congress, that would obviously be an impeachable act anyway.
Schiff’s argument proves Turley correct, Dershowitz responds (without mentioning Turley) and scoffs at the “absurdist” insult. Dershowitz cites James Madison and Alexander Hamilton, as did Turley, in warning that “abuse of power” as an impeachment standard creates a “nightmare” out of impeachment, where no president can serve outside the pleasure of a partisan House majority. Schiff and House Democrats have proven Madison and Hamilton prophetic, Dershowitz tells George Stephanopoulos:
DERSHOWITZ: Well it’s the same position that was successfully argued by former Justice Benjamin Curtis in the trial of Andrew Johnson. Andrew Johnson was impeached in part for non-criminal conduct. And Curtis, who was the dissenting judge in the Dred Scott case and one of the most eminent jurists in American history, made the argument that has been called absurdist, namely that when you read the text of the Constitution — bribery, treason, bribery, and other high crimes and misdemeanors — other really means that crimes and misdemeanors must be of kin — akin to treason and bribery.
And he argued, very successfully, winning the case, that you needed proof of an actual crime. It needn’t be a statutory crime, but it has to be criminal behavior, criminal in nature. And the allegations in the Johnson case were much akin to the allegations here — abusive conduct, obstructive conduct — and that lost.
So I am making an argument much like the argument made by the great Justice Curtis. And to call them absurdist is to, you know, insult one of the greatest jurists in American history. The argument is a strong one. The Senate should hear it. I’m privileged to be able to make it. I have a limited role in the case. I’m only in the case as of counsel on the constitutional criteria for impeachment. I’m not involved in the strategic decisions about witnesses or facts.
The articles of impeachment are so deficient by constitutional standards, Dershowitz argues, that one can accept everything in them as fact — and still the Senate would be required to acquit Trump. The case that the House makes, even if one accepts it, simply doesn’t meet the constitutional standard for impeachment and removal:
STEPHANOPOULOS: Let me press that, though. Is it your position that President Trump should not be impeached even if all the evidence and arguments laid out by the House are accepted as fact?
DERSHOWITZ: That’s right. When you have somebody who, for example, is indicted for a crime — let’s assume you have a lot of evidence — but the grand jury simply indicts for something that’s not a crime, and that’s what happened here, you have a lot of evidence, disputed evidence, that could go both ways, but the vote was to impeach on abuse of power, which is not within the constitutional criteria for impeachment, and obstruction of Congress.
Those are both the kinds of things that led Hamilton and Madison — talk about nightmare — to regard that as the greatest nightmare, number one, giving Congress too much power to allow the president to serve at the will of Congress. And number two, as Hamilton put it, the greatest danger is turning impeachment into a question of who has the most votes in which House, and rather than having a consensus and a broad view of impeachable conduct.
Will the White House embrace that argument? Perhaps, but only strictly out of necessity. It’s their contention that Trump did nothing wrong at all, that his call to Volodymyr Zelensky was “perfect,” and that this is all about the Democrats’ desire to get even for their 2016 loss. Dershowitz doesn’t contradict that directly, but by saying it doesn’t matter, he’s arguing for a more ambiguous outcome from the trial than Trump and his team would like.
Dershowitz also takes an agnostic view on the need to call witnesses, or even to limit those witnesses to the scope of the impeachment articles, noting that the Senate has plenary authority to make those choices. If they accept his argument, however, there is no need to call witnesses at all. If the articles don’t fit, you must acquit — right? Depends on which version of Dershowitz one asks, perhaps:
That’s not entirely inconsistent with Dershowitz’ argument on This Week, but it’s … nuanced. In yesterday’s clip, Dershowitz allows for this but says that the behavior has to rise to the same level as bribery and treason. Expect the House managers to emphasize the 1998 Dershowitz argument. And expect Dershowitz to be prepared for it, too.