There Is No Strict Legal Test of Impeachment

Alan Dershowitz arrives at the Manhattan Federal Court in N.Y., September 24, 2019. (Jefferson Siegel/Reuters)

It’s an eye test, a political determination, and even great lawyers trip up when they frame it as a legal question.

When you’re a hammer, everything looks like a nail. And when you’re a lawyer, particularly a constitutional scholar and criminal-defense practitioner of Alan Dershowitz’s caliber, everything looks like a legal problem.

Not everything is. Impeachment is not. Not principally.

Professor Dershowitz, for whom I have great respect, got a bit carried away in what was otherwise a bravura performance in the well of the Senate on Wednesday night, when he offered a constitutional defense against President Trump’s impeachment. As will be clear momentarily, I have never agreed with Dershowitz’s impeachment theory. Yet the excerpt of his argument at the Senate trial that has critics up in arms was a case of misspeaking; it was not an outrage that would effectively turn the president into a dictator.

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I believe Dershowitz was trying to make the uncontroversial point that executive acts a president subjectively believes are in the national interest do not become impeachable just because the president simultaneously believes such acts will help him politically. But Dersh garbled the point — which also occasionally happens, even to those of us who are not 81 and lack the professor’s vigor. Taken out of the context of his broader argument, he could be misunderstood as having asserted that, if a president believed his own reelection was in the national interest, no executive act he took in furtherance of being reelected could be impeachable.

That is not what he thinks or, overall, what he said (as he later explained in a Twitter thread that begins here). Dershowitz was explicit that presidents are not above the law, and that they may be impeached for criminal acts.

What he was attempting to refute, moreover, is the unworkable theory advanced by Democrats — a dangerous theory because of the partisan abuse of Congress’s impeachment power that it invites, to wit: A president may properly be impeached for what objectively appear to be legitimate exercises of his constitutional prerogatives if Congress — in particular, the president’s partisan opposition — decides the president was “corruptly” motivated to achieve some personal political advantage.

The Constitution vests a president with nigh-plenary authority over the conduct of foreign relations, and all presidents — especially first-term presidents who hope to be reelected — execute their official duties with an eye toward their political standing (just as all senators and representatives do).

On the matter of impeachment, the dispositive issue is always whether the acts in question are justifiable. If they are, a president cannot properly be impeached just because his critics think he had a dirty mind in taking them. If they are not justifiable, corrupt motive is obviously relevant, but the question of whether a president should be impeached and removed will hinge on how seriously wrong the acts are — in conception, execution, and consequence.

This is not a legal determination. It is a common-sense determination, though we more often refer to it as a political one. The Framers gave us a Constitution for the self-determination of a free people, not to establish rule by lawyers.

Where I have always thought Professor Dershowitz veers off the rails is in the conceit that the question of what “high crimes and misdemeanors” are can be answered by a fixed legal test.

He is far from alone in this. Some constitutional scholars get hung up on whether presidential misconduct is truly an abuse of the president’s “core” responsibilities (e.g., the Bill Clinton situation). Others make exacting temporal distinctions (even if the misconduct is serious, did it occur before the president took office, unrelated to his quest for office?). Still others distinguish affirmative criminal misconduct from omissions to act and gross incompetence or negligence (the hypothetical president who goes on vacation for months at a time, abdicating his responsibilities).

I do not see the sense in this. As I argued in Faithless Execution, impeachment implicates the question of fitness to wield the awesome powers of the presidency, based on egregious malfeasance or misfeasance.

Hamilton provided an abstract legal definition of what high crimes and misdemeanors are — essentially, “political” wrongs, in the sense that the acts are significant abuses of the trust reposed in public office. Gerald Ford, while serving as House minority leader, provided the blunt political reality that an impeachable offense is whatever the House decides it is, in the sense that the House undeniably has the raw power to impeach on a simple majority.

There is a great deal of running room between those two poles. But there is not a legal test workable for all conceivable scenarios.

Legal tests work when we are defining conduct that is fit for the making of antecedent rules; conduct that fits a pattern we can confidently predict based on human experience, and that does not require bringing to bear much wisdom and discretion. Murder, bank robbery, breach of contract — we can (and do) make laws about such behavior that are easy to grasp and apply.

Impeachment is not such a subject. There is an infinite variety of misconduct that might render a president unfit for office, and that might justify Congress in removing the president even though doing so would be an extraordinary departure from the default position, in our democratic republic, that the sovereign — the people, at the ballot box — should make that decision.

The subject does not lend itself to antecedent rules because we can’t predict every disqualifying scenario. You want to make a rule that it has to be an abuse of the president’s core duties? What if a president shoots his brother-in-law in a fit of pique at Christmas dinner? You want to require a felony? What if the president sits idle while a foreign power bombs Florida? You say impeachment is limited to presidential misconduct? What if we find out, two months after the president takes office, that he was secretly part of a racketeering ring complicit in mega-fraud and is looking at a potential 25 years in the slammer?

You can’t tell me the Constitution (putatively not a suicide pact) would not authorize impeachment in these situations. The Framers were not primarily concerned about fairness to the elected president; they were worried about the security of the United States. Plainly, national security can be imperiled by an unfit president regardless of whether his acts are willful or negligent, and whether they take place before or during his presidency.

Realizing this, the Framers designed a very practical impeachment test. The House may impeach based on what, in its judgment, is egregious misconduct; but the Senate may not remove without a two-thirds supermajority vote to convict — meaning: The misconduct must be so severe that a public consensus for the president’s ouster forms, pressuring senators to vote for removal regardless of partisan ties.

Historically, this high burden in the Senate has stopped the House from invoking impeachment over misconduct that is not sufficiently grave. This has prevented impeachments driven by partisan spite. We can certainly hope that the Senate’s imminent acquittal of President Trump will serve to restore that norm.

In any event, impeachment does not have a strict legal test. It has an eye test. We know impeachable misconduct when we see it. We will never know it based on a lawyer’s attempt to articulate an all-purpose formula for it . . . and even great lawyers can get themselves wrapped around the axle when they try.

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