Alan Dershowitz’s Standard for Impeachment Would Make the Constitution Self-Undermining

Attorney Alan Dershowitz addresses a question from senators during the impeachment trial of President Trump in the Senate Chamber in Washington, January 29, 2020. (U.S. Senate TV/Handout via Reuters)

Alan Dershowitz maintained in his Senate testimony this week that a president can be impeached only for treason and bribery (the two offenses that the Constitution specifically mentions as impeachable); “serious criminal behavior akin to treason and bribery”; and “criminal-like conduct akin to treason and bribery.” (His example of impeachable “criminal-like conduct” is that a president receives a bribe “outside of the United States and outside of the statute of limitations”: The president could not be prosecuted for that act in the U.S., but it would be close enough to the statutory crime of bribery that we should impeach him anyway.)

Dershowitz’s concern is to prevent the standard of impeachment from becoming vague and political, with the result that the president serves at the pleasure of Congress. Hence the need to anchor the definition of impeachable offenses in the criminal law. And since treason and bribery are the two crimes cited as impeachable in the Constitution, it is they that should guide us in deciding which other crimes are impeachable.

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Various writers, including the editors of National Review, disagree and have produced historical evidence that the Framers did not intend to limit impeachable offenses to certain statutory crimes and their close kin. My colleague Andrew C. McCarthy wrote a whole book making that argument.

What I want to focus on is, instead, a logical problem with Dershowitz’s standard: The president could subvert the Constitution itself in various ways without violating criminal statutes; but it is absurd to think the Constitution excludes its own subversion from the definition of impeachable offenses, because this would cause it to undermine itself and to treat discrete statutes as more important than the very constitutional order under which those statutes were enacted.

Article II, Section 3 requires the president to “take care that the laws be faithfully executed.” But suppose the president were an anarchist and simply refused to do this, instructing federal agencies to cease enforcing the law altogether. Suppose he were successful in the effort. Are we to conclude that this president can be impeached for violating particular statutes but cannot be impeached for rendering Article II, Section 3 — and thereby the entire body of statutory law — inoperative? However it is interpreted, the Constitution must be taken to assume its own authority and supremacy. It follows that it must regard the categorical destruction of that supreme authority as a more serious matter than violations of particular statutes under it, however important those statutes may be.

Similarly, consider an example, widely quoted in recent days, from Dershowitz’s book The Case against Impeaching Trump. “Assume,” Dershowitz writes, “that Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea. [“The way” being invasion — JLS.] Assume further that a president allows him to do it, because he believe[s] that Russia has a legitimate claim to ‘its’ original territory. . . . That would be terrible, but would it be impeachable? Not under the text of the Constitution” — unless, say, the president “did it because he was paid or extorted” and thereby violated a statute in a way akin to committing treason or bribery. Yet this would clearly be a violation of the president’s responsibilities as commander-in-chief under Article II, Section 2 — responsibilities that must include, if they include anything, the defense of the United States against foreign invasion so that the Constitution can remain the supreme law of the land. Again, it cannot be that the Constitution regards the preservation of its own supreme rule as less important than particular statutes in the criminal code, however important they may be. (It’s a bit murky, by the way, why allowing Russia to invade Alaska wouldn’t count as treason. Perhaps it is because the president would not be actively “giving aid and comfort to the enemy” — my emphasis. Or perhaps it is because, as Andy McCarthy informs me, most scholars hold that “aid and comfort” cannot be given to an enemy except in wartime and in the case of passively allowing an invasion there would be no war. But any such legal hair-splitting should point us once more to the inadequacy of Dershowitz’s standard if the Constitution itself is overthrown in part of our territory, since all such subtleties of interpretation become, for the citizens who live there and lose all their constitutional protections, irrelevant.)

We could make the point clearer by raising the stakes a bit: Suppose the president allows Putin to annex the United States entire and rule it according to the Russian constitution rather than the American one. Surely this would subvert the Constitution, and all statutory law with it, if anything would. But by Dershowitz’s standard even this conduct would not be impeachable.

The examples are outlandish and not remotely comparable in magnitude to the accusations against President Trump. But there is one important point of similarity: If, in order to boost his chances of being reelected, Trump was willing to thwart the execution of signed legislation concerning defense aid to Ukraine, and thereby to disregard Article II, Section 3, then he did display a willingness to subvert the constitutional order, in however limited and ultimately ineffectual a way. And that provides an answer to Dershowitz’s argument that “abuse of power” is too vague a standard for impeachment. Not every abuse of power calls into question the president’s fealty to the Constitution itself. This one does.

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