Today the eminent Harvard law professor Alan Dershowitz argued before the Senate that “abuse of power” could never be a legitimate ground for impeachment, and that the founders only intended impeachment for serious crimes or acts “akin to crimes”. I have a few questions for the professor. According to the Dershowitz theory, it would seem that none of the following would be impeachable conduct:
Let’s look at the text. The Constitution says that impeachment applies to “treason, bribery, or other high crimes and misdemeanors”. The record of the Constitutional Convention shows they all agreed just listing “bribery and treason” was insufficient. They considered adding “or maladministration” but revised that to “other high crimes and misdemeanors”. What does the professor suppose the founders had in mind by “misdemeanors”? Obviously we’re not talking about jaywalking here, but misdemeanor in the sense of bad behavior. True, that’s unspecific and there’s a danger there. But it’s far-fetched to assert that the same guys who spent so much time making clear that enumerations should not be misconstrued as limiting would write “and misdemeanors” and not mean anything by it. Or does the professor think “misdemeanors” is just another constitutional inkblot?
Let’s look at what the founders said. In records from the Constitutional Convention, Madison described impeachment as a mechanism to address “incapacity, negligence, or perfidy”. In Federalist No. 65, Hamilton characterizes an impeachable offense as “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” I can’t see how these descriptions square at all with the way that Prof. Dershowitz would limit impeachment. The founders don’t even seem to be thinking about crime per se at all so much as bad behavior, the civil equivalent of the military’s “conduct unbecoming of an officer”.
Let’s look at what the founders did. Case in point: John Pickering, who has the dubious distinction of being the first person impeached and removed from office by the US Congress. While we tend to think of impeachment only for presidents, it applies to all federal officers. Pickering was a US District Court Judge appointed by George Washington. By 1800, he was starting to get a reputation for being inebriated on the bench and making rulings with questionable relationship to the law. In 1804, he was impeached on the charges of “drunkenness and unlawful rulings”. If Prof. Dershowitz is to be believed about the founders’ intention that impeachment be only for crimes, that seems difficult to reconcile with the fact that the Senate voted to remove Pickering for those charges, with the support of over 80% of the senators voting for removal. In looking at our history since the founding, there have been 20 impeachments, and “abuse of power” has been the most common charge.
With all due respect, I don’t think this was Dershowitz’s finest hour.
- a president who doesn’t perform any of his duties, but just sleeps in, plays video games, and watches TV all day long, and collects his $400K / year
- a president who shows up obviously intoxicated, stumbling and slurring his speech, at all of his meetings and public appearances
- a president who uses the White House as a set to make You Tube videos which he heavily monetizes
- a president who actively engages in real estate investments based on his inside information of where government projects will be located
- a president who directs the IRS to audit those who criticize him on Twitter and to not audit his supporters
- a president who wantonly Tweets photos of his Oval Office desk, exposing top secret documents including names of CIA agents, locations of all our missiles, and the nuclear codes
- a president who makes $$$$ doing commercial endorsements while in office (“In the White House, we only serve Pepsi”)
- a president who directs the firing of any federal employee he catches criticizing him on social media
- a president who creates heavy tariffs and grants exemptions only for businesses he deems “loyal” to him
- a president who makes it known he’ll pardon anyone who commits any federal crimes in the service of his personal interests
- a president who takes regular joyrides on aircraft carriers and F-15s, insisting on flying himself, and occasionally crashing them.
Let’s look at the text. The Constitution says that impeachment applies to “treason, bribery, or other high crimes and misdemeanors”. The record of the Constitutional Convention shows they all agreed just listing “bribery and treason” was insufficient. They considered adding “or maladministration” but revised that to “other high crimes and misdemeanors”. What does the professor suppose the founders had in mind by “misdemeanors”? Obviously we’re not talking about jaywalking here, but misdemeanor in the sense of bad behavior. True, that’s unspecific and there’s a danger there. But it’s far-fetched to assert that the same guys who spent so much time making clear that enumerations should not be misconstrued as limiting would write “and misdemeanors” and not mean anything by it. Or does the professor think “misdemeanors” is just another constitutional inkblot?
Let’s look at what the founders said. In records from the Constitutional Convention, Madison described impeachment as a mechanism to address “incapacity, negligence, or perfidy”. In Federalist No. 65, Hamilton characterizes an impeachable offense as “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” I can’t see how these descriptions square at all with the way that Prof. Dershowitz would limit impeachment. The founders don’t even seem to be thinking about crime per se at all so much as bad behavior, the civil equivalent of the military’s “conduct unbecoming of an officer”.
Let’s look at what the founders did. Case in point: John Pickering, who has the dubious distinction of being the first person impeached and removed from office by the US Congress. While we tend to think of impeachment only for presidents, it applies to all federal officers. Pickering was a US District Court Judge appointed by George Washington. By 1800, he was starting to get a reputation for being inebriated on the bench and making rulings with questionable relationship to the law. In 1804, he was impeached on the charges of “drunkenness and unlawful rulings”. If Prof. Dershowitz is to be believed about the founders’ intention that impeachment be only for crimes, that seems difficult to reconcile with the fact that the Senate voted to remove Pickering for those charges, with the support of over 80% of the senators voting for removal. In looking at our history since the founding, there have been 20 impeachments, and “abuse of power” has been the most common charge.
With all due respect, I don’t think this was Dershowitz’s finest hour.
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