Before we move on I wanted to say a few words about this spectacularly self-regarding man, Alan Dershowitz, and his argument about the constitutional, rather than factual, insufficiency of the impeachment charges brought against President Trump. It is no exaggeration to say that the overwhelming bordering on universal weight of scholarly and historical opinion is that Dershowitz is wrong. But mine isn’t an argument to authority. It’s an overwhelming consensus because it is almost certainly correct. To note just one example, literally during the months in which the Constitution was being written Britain was roiled by an extremely high profile campaign for an impeachment which was on the basis not of statutory crimes but corruption and misrule.
My aim here is not to rehearse the arguments about what constitutes an impeachable offense. Others are doing that. What is so notable is that not only is Dershowitz no expert on this issue and in no way knowledgeable about it. He positively advertises the fact, as part of his own self-glorification and self-involvement. Dershowitz explains that he took a diametrically opposed position about what constitutes an impeachable offense in 1998-99 because he hadn’t yet “researched” the topic. But in recent weeks, he points out, he’s ‘read all the books’ and come to this new conclusion. (Note that in 1998-99 Dershowitz had already been a professor at Harvard Law School for thirty-five years.)
To use Dershowitz’s own words, he took the earlier erroneous opinion because …
I simply accepted the academic consensus on an issue that was not on the front burner at the time. But because this impeachment directly raises the issue of whether criminal behavior is required, I have gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit the criteria for impeachment to criminal type acts akin to treason, bribery, and they certainly did not intend to extend it to vague and open-ended and non-criminal accusations such as abuse of power and obstruction of Congress.
Dershowitz is justifiably acclaimed as a criminal defense and a particularly appellate defense attorney, notwithstanding decades of escalating notoriety as a grandstanding attention whore. He is not a constitutional attorney. He is not an historian. And he is not any other kind of expert on impeachment. But now he’s spent a few weeks ‘reading all the books’ and he’s got it figured out.
This is the most classic sort of dilettante’s history. Understanding the past means more than just ransacking the library for proof texts and quotes. If we are trying to reconstruct the range of arguments the authors of the Constitution were making and how most Americans – who were indirectly responsible for ratifying the document – understood them you need a grounding in the history and debates of the time. Words do not speak for themselves. They have meaning in a particular historical context. We are not bound in our use of these words by their original historical context but we cannot make sense of them or any use of them for our own purposes if we are ignorant of that context.
To put it baldly, if it’s a topic and area of study you know nothing about and after a few weeks of cramming you decide that basically everyone who’s studied the question is wrong, there’s a very small chance you’ve rapidly come upon a great insight and a very great likelihood you’re an ignorant and self-regarding asshole. Needless to say, those are odds Dershowitz is happy to take. Dershowitz has now ‘read all the relevant historical material’ and has it covered.
But wait … there’s more!
If we take the most generous view of what Dershowitz is arguing, it is this: Impeachment was not intended to remove a President over policy disagreements or even being a terrible President. It is designed to remove Presidents over grave, high level wrongdoing, either statutory crimes or offenses against the constitution or society itself. All you need to know the absurdity of Dershowitz’s argument is that the most important kinds of wrongdoing a President can commit are ones that only he or she is even capable of given their unique position and powers. Congress would need to enact a special batch of special President crimes to cover this. A few days after announcing his new position, Dershowitz himself recognized this. So after declaring flatly that only statutory crimes were impeachable, he sensed the insupportability of this position and added a catch-all that “crime-like” wrongdoing or “criminal-like behavior” could also count.
Again, broadly speaking, this is not that far off the truth of the matter.
With this caveat in hand, Dershowitz argues that “abuse of power” is basically a meaningless phrase which can mean anything and nothing. It’s too vague to be a standard for impeaching the President. In his presentation last night, he listed basically every President from the 20th century who someone at some point accused of “abusing their power.”
Again, if you back up to 30,000 or maybe 50,000 feet this is kinda true too. If a future House passed articles of impeachment which simply said the President abused his or her power and didn’t give any specific or detailed instances or explanation that really wouldn’t cut. If they listed something trivial the Senate would be correct to reject the articles on those grounds. But of course the ‘abuse of power’ article contains a very specific and lengthy indictment about how the President solicited bribes, violated statute law and subverted the country’s security for his own personal gain. In other words, the ‘abuse of power’ article of impeachment contains precisely those “crime-like”, indeed criminal offenses Dershowitz says are necessary. Dershowitz’s entire argument, which purportedly rules out the entire impeachment on constitutional grounds is a purely semantic one and that in the most trivial sense.
The most magical part of this presentation was that Dershowitz recognized this and felt the need to address this particular point. He grants that the actual articles of impeachment do include these things but it’s not enough because the House collected them under the rubric of “abuse of power.” As he puts it, the articles are “not saved by the inclusion in these articles of somewhat more specific but still non-criminal-type conduct.”
It’s worth listening to this actual passage both to hear the specific language but also to hear the timbre of Dershowitz’s voice as he unleashes the full measure of his self-regarding militant ignorance.
Dershowitz is just a toweringly self-regarding and self-serving individual. Here he lectures the House Managers on how it doesn't matter what is actually in the Articles of Impeachment. They used the wrong titles basically. So they goofed. pic.twitter.com/jCKFxyfKe8
— Josh Marshall (@joshtpm) January 28, 2020
Strip away all the self-involvement and flimflam and Dershowitz’s argument on the Constitution is that the House chose the wrong label. That’s really the whole thing.