The trial in the Senate on two articles of impeachment and whether to remove President Donald Trump from office has oftentimes been tedious, thus far. But Alan Dershowitz’s speech from the Senate floor last night was an exception.
Dershowitz has a lengthy resume: He began teaching law at Harvard when he 28 years old (the youngest ever to do so), and he has handled a slew of high-profile cases, from O.J. Simpson to Jeffrey Epstein to Harvey Weinstein. Now 81, Dershowitz retired in 2013, and has since been a regular media contributor, political commentator, and legal analyst.
He recently got the call to join Trump’s defense team, and on Monday held court for a little more than an hour. Below are the highlights of his speech.
“I stand before you today, as I stood in 1973 and 1974 for the protection of the constitutional and procedural rights of Richard Nixon, who I personally abhorred and whose impeachment I personally favored, and as I stood for the rights of Bill Clinton, who I admired and whose impeachment I strongly opposed,” he said as he opened his remarks.
“I stand against the application and misapplication of the constitutional criteria in every case and against any president without regard to whether I support his or her parties or policies. I would be making the very same constitutional argument had Hillary Clinton, for whom I voted, been elected and had a Republican House voted to impeach her on these unconstitutional grounds.”
He said he was there to answer one major question: “Do charges of abuse and obstruction rise to the level of impeachable offenses under the constitution?”
What follows is a transcript of portions of Dershowitz’s Senate floor speech.
WHAT IS IMPEACHABLE?
The main thrust of my argument, however, and the one most relevant to these proceedings is that even if that position is not accepted, even if criminal conduct were not required, the Framers of our Constitution implicitly rejected, and if it had been presented to them, would have explicitly rejected such vague terms as abuse of power and obstruction of Congress as among the enumerated and defined criteria for impeaching a president. …
Now here I am making, I think, a very important point. Even if the Senate were to conclude that a technical crime is not required for impeachment, the critical question remains — and it’s the question I now want to address myself to — do abuse of power and obstruction of Congress constitute impeachable offenses? The relevant history answers that question clearly in the negative. Each of these charges suffers from the vice of being, “So vague a term that they will be equivalent of tenure at the pleasure of the Senate.” To quote again, the father of our Constitution, abusive of power is an accusation easily leveled by political opponents against controversial presidents. …
‘WHAT WAS IN THE PRESIDENT’S MIND?‘
[Constitutional law] Professor [Josh] Blackman drew the following relevant conclusion from this and other historical events. He said, “Politicians routinely promote their understanding of the general welfare while in the back of their minds considering how these actions will affect their popularity. Often the two concepts overlap. What’s good for the country is good for the official’s reelection. All politicians,” he said, “understand that dynamic.” Like all human beings, presidents and other politicians persuade themselves that their actions seen by their opponents as self-serving are primarily in the national interest. In order to conclude that such mixed motive actions constituted abuse of power, opponents must psychoanalyze the president and attribute to him a singular self-serving motive.
Such a subjective probing of motives cannot be the legal basis for a serious accusation of abuse of power that could result in the removal of an elected president. Yet this is precisely what the managers are claiming. Here’s what they say, “Whether the president’s real reason, the ones actually in his mind are at the time legitimate.” What a standard. What was in the president’s mind? Actually in his mind? What was the real reason? Would you want your actions to be probe for what was the real reason why you acted? Even if a president were. It clearly shows in my mind that the Framers could not have intended this psychoanalytic approach to presidential motives to determine the distinction between what is impeachable and what is not.
ON QUID PRO QUOS
As a condition to sending aid to a foreign country, obviously a highly disputed matter in this case that would not by itself constitute an abuse of power. Consider the following hypothetical case that is in our news today, as the Israeli prime minister comes to the United States for meetings. Let’s assume a Democratic president tells Israel that foreign aid authorized by Congress will not be sent or an Oval Office meeting will not be scheduled unless the Israelis stop building “settlements.” Quid pro quo. I might disapprove of such a quid pro quo demand on policy grounds, but it would not constitute an abuse of power. Quid pro quo alone is not a basis for abusive power. It’s part of the way foreign policy has been operated by presidents since the beginning of time. The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the president was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase, “abusive power,” as a constitutionally permissible criteria for the removal of a president.
Now it follows that if a president — any president — were to demand a quid pro quo as a condition to sending aid to a foreign country, obviously a highly disputed matter in this case, that would not by itself constitute an abuse of power.
Let me repeat: Nothing in the [former National Security Advisor John] Bolton revelations — even if true — would rise to the level of an abuse of power or impeachable offense. That is clear from the history. That is clear from the language of the Constitution — you cannot turn conduct that is not impeachable into impeachable conduct simply by using words like “quid pro quo” and “personal benefit.”
It is inconceivable that the Framers would have intended such politically loaded and promiscuously deployed a term as “abuse of power” and weaponized it as a tool of impeachment.
ON ABUSE OF POWER, OBSTRUCTION OF JUSTICE
Sure, nobody was above the law, but they created a law. They created a law by which Congress could impeach and they did not want to expand that law to include all the criteria that permitted impeachment in Great Britain. The Framers would never have included and did not include abuse of power as an enumerated and defined criteria for impeachment. By expressly rejecting “maladministration,” they implicitly rejected “abuse.” Nor would the Framers have included “obstruction of Congress” as among the enumerated and defined criteria. It is too vague, indefinable — especially in a constitutional system in which according to [Alexander] Hamilton in Federalist 78, the legislative body is not themselves, the constitutional judge of their own powers. And the construction they put on them is not conclusive upon other departments. Instead, he said the courts were designed as an intermediate body between the people as declared in the Constitution and the legislature in order to keep the ladder within the limits assigned to their authority. …
By their very nature, words like “abuse of power” and “obstruction of Congress” are standard-less. It’s impossible to put standards into words like that. Both are subjective matters of degree and amenable to varying partisan interpretations. It’s impossible to know in advance whether a given action will subsequently be deemed to be on one side or the other of the line. Indeed, the same action with the same state of mind can be deemed abusive or obstructive when done by one person but not when done by another. That is the essence of what the rule of law is not. When you have a criteria that could be applied to one person one way and another person in another way, and they both fit within the terms abuse of power. …
You are entitled to use that rule of interpretation, as well, in deciding whether or not “obstruction of Congress” or “abuse of power” can be defined as fitting within the criteria of “high crimes and misdemeanors.” For the Senate to remove a duly elected president on vague non-constitutional grounds such as “abuse of power” or “obstruction of Congress” would create a dangerous precedent and be construed, in the words of Senator James N. Grimes, into approval of impeachment as part of future political machinery. This is a realistic threat to all future presidents who serve with opposing legislative majorities that could easily concoct vague charges of “abuse” or “obstruction.” The fact that a long list of presidents that were accused of “abuse of power” were not impeached demonstrates how selectively this term has and can be used in the context of impeachment.
I’m sorry, House managers, you just picked the wrong criteria. You picked the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents. The idea of “abuse of power” and “obstruction of Congress” are so far from what the Framers had in mind that they so clearly violate the Constitution and would place Congress above the law. Now, nor are these vague, open-ended and unconstitutional articles of impeachment that were charged here, they’re not saved by the inclusion in these articles of somewhat more specific, but still non-criminal, type of conduct. The specifications are themselves vague, open-ended, and do not charge impeachable offenses. They include such accusations as compromising national security, abusing the power of the presidency, violating his oath of office. In any event, it’s the actual articles that charge “abuse of power” and “obstruction of justice,” neither of which are in the Constitution — it’s the actual articles on which you must all vote, not on the more specific list of means included in the text of the articles.
Author: Joseph Curl
Source: Daily Wire: ICYMI: Dershowitz Obliterates Dems’ Case For Removing Trump From Office