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Sunday, January 26, 2020

Alan Dershowitz Is Barking Up the Wrong Tree

Tomorrow the President's lawyers will argue that an abuse of power, without an alleged violation of law, cannot be a high crime and misdemeanor under the Constitution. Alan Dershowitz, who is expected to make this claim, took the opposite view during President Clinton's impeachment. But he now says he's changed his mind, based in part on his research into President Andrew Johnson's impeachment trial. As someone who has studied and written about the Johnson trial, I cannot see how that precedent can lead to the conclusion that an abuse of power is not impeachable. Professor Dershowitz is wrong if says otherwise. Let me explain why.

President Johnson's lawyers did contend that an abuse of power--standing alone--was not impeachable. This  argument was made in response to one of the articles of impeachment--Article X--that did not allege a violation of law and only alleged an abuse of power. The Senate, of course, acquitted President Johnson. From this, I gather, Professor Dershowitz wants to argue that the Johnson trial created a precedent that an abuse of power cannot be an impeachable offense.

One problem with this claim is that many of the Senators in the Johnson trial explained their votes in written "opinions" published after the verdict was delivered. You can read those opinions here (from pages 417 to 524 in the Supplement to the Congressional Globe.) Guess how many Senators endorsed the view that an abuse of power alone cannot be a high crime and misdemeanor? Zero. That's right--zero. The Senators who voted not guilty and wrote opinions instead said that they either thought President Johnson did not abuse his power or that he did not do so in a manner serious enough to warrant removal. These written opinions are the law of the Johnson impeachment trial, just as written judicial opinions are for an ordinary court case.

Accordingly, the Johnson precedent does not support President Trump's claim than an abuse of power alone is not impeachable. There are other ways of making that argument, I suppose, but this is not one of them. 

Posted by Gerard Magliocca on January 26, 2020 at 07:59 PM | Permalink


Imagine a President who decides to consistently prosecute only his political enemies - whether supported by the facts or not, and let corruption of his political supporters go unchecked? Would there be a crime you could articulate to cover those facts? But would it be fair to say he has abused his power and should be removed from power?

How about a President who rewards - with taxpayer dollars -countries that invest in his building projects, and punishes or invaded countries who do not? Again, something unique to the President and there is probably not a statute involved here which could be called a crime, but hard to argue that he can’t be impeached if these facts can be shown to be true.

Posted by: John drew | Jan 27, 2020 5:53:36 PM

I don’t understand this post. I take Dershowitz to be saying that he rethought his position after studying the arguments made at Johnson’s trial; I don’t think Dershowitz is claiming that that proceeding yielded a legal precedent similar to a controlling judicial opinion. How could it? The Senators who voted to acquit carried the day, so in a sense their opinions “won,” yet they were a minority. The majority of Senators who voted to convict failed to effect the verdict they supported, so their views can’t be deemed precedential either.

Posted by: RQA | Jan 27, 2020 11:22:59 AM

Important, but it goes far beyond historical precedents ( although his lawyers claim also, that there is no such precedent). In the " Trial memorandum " they claim that, I quote:

" House Democrats’ novel theory of “abuse of power” improperly supplants the standard of “high Crimes and Misdemeanors” with a made-up theory that would permanently weaken the Presidency by effectively permitting impeachments based merely on policy disagreements. By limiting impeachment to cases of “Treason, Bribery, or other high Crimes and Misdemeanors,” the Framers restricted impeachment to specific offenses against “already known and established law.” That was a deliberate choice designed to constrain the impeachment power. In keeping with that restriction, every prior presidential impeachment in our history has been based on alleged violations of existing law—indeed, criminal law. House Democrats’ newly invented “abuse of power” theory collapses at the threshold because it fails to allege any violation of law whatsoever. 2. House Democrats’ concocted theory that the President can be impeached for taking permissible actions if he does them for what they believe to be the wrong reasons would also expand the impeachment power beyond constitutional bounds. It would allow a hostile House to attack almost any presidential action by challenging a President’s subjective motives. Worse, House Democrats’ methods for identifying supposedly illicit motives ignore the constitutional structure of our government. As proof of improper motive, they claim that the President supposedly “disregarded United States foreign policy towards Ukraine,”4 that he was “briefed on official policy” but chose to ignore it, and that he “ignored, defied, and confounded every office and agency within the Executive Branch.”6 These assertions are preposterous and dangerous. They misunderstand the assignment of power under the Constitution and the very concept of democratic accountability. Article II states that “[t]he executive Power shall be vested in a President.” It is the President who defines foreign policy, not the unelected bureaucrats who are his subordinates. Any theory of an impeachable offense that turns on ferreting out supposedly “constitutionally improper”8 motives by measuring the President’s policy decisions against a purported inter agency consensus is both fundamentally anti-democratic and an absurdly impermissible inversion of the constitutional structure."

One may reach it here:



Posted by: El roam | Jan 26, 2020 8:41:24 PM

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