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The dishonest hackery of Alan Dershowitz


I’m going to extend Alan Dershowitz the backhanded compliment of assuming he’s not going senile, and that his recent advocacy is a product of unctuous groveling before his new master, rather than sudden severe cognitive decline.

Dershowtiz’s argument is that it’s up to the Chief Justice of the Supreme Court to decide whether the House’s passage of articles of impeachment warrants a trial of the president in the Senate:

If the House were to impeach for a non-crime, the president’s lawyer could make a motion to the chief justice to dismiss the case, just as a lawyer for an ordinary defendant can make a motion to dismiss an indictment that did not charge a crime. The chief justice would be asked to enforce the senatorial oath by dismissing an impeachment that violated the words of the Constitution. There is no assurance that the chief justice would rule on such a motion, but it is certainly possible. 

He also argues that’s it’s up to the SCOTUS as a whole, after the Senate convicts an impeached president, to essentially take on the role of an appellate court in a criminal case:

The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.  

Were Congress to try to impeach and remove a president without alleging and proving any such crime, and were the president to refuse to leave office on the ground that Congress had acted unconstitutionally, there would indeed be such a constitutional crisis. And Supreme Court precedent going back to Marbury v. Madison empowers the justices to resolve conflicts between the executive and legislative branches by applying the Constitution as the supreme law of the land. 

This is all complete nonsense. It would warrant a failing grade if put forward in a first-year law student’s Con Law final.

First, speaking of Marbury, the Supreme Court has explicitly dealt with the question of what sort of role it has in reviewing impeachment proceedings, and the answer is literally “none.” None role. The law on this question is crystal clear: the Supreme Court has held that even the most basic procedural questions of what constitutes a proper “trial” under the impeachment clause are non-justiciable — a technical legal term meaning that the Supreme Court does not have the power, under the Constitution, to rule on such questions.

The current law on the matter is that both the House and the Senate could decide to hold simple up or down votes on articles of impeachment, with no prior debate of the matter, and the Supreme Court would be powerless to review such a procedure.

Now this strikes me as an extreme position, but my opinion on the matter, like Dershowitz’s, is irrelevant to the actual state of the law. Dershowitz knows this of course, and simply lies about it by omission to his lay audience.

Even more outrageous is Dershowitz’s assertion that Congress must prove the president is guilty of a crime to remove him via the impeachment process, and that the Supreme Court should and will review whether the conviction was warranted, just like a normal appellate court in an ordinary criminal proceeding.

Leaving aside that, again, the Supreme Court has ruled specifically that it doesn’t have anything remotely like the constitutional authority to do something like that, there’s universal agreement among scholars that the constitutional phrase “high crimes and misdemeanors” did not and does not mean only crimes in the statutory sense. That phrase was, at the time of its adoption by the framers of the Constitution, a very well known technical term from British legal practice, and it didn’t mean just criminal conduct: indeed, quite the opposite. The phrase was chosen precisely because it had a much broader meaning — essentially, serious abuse of the powers of office by high officials, whether or not that abuse involved criminal conduct.

There is absolutely no basis in text, history, or precedent for the idea that an official has to be guilty of a literal crime to be removed via the impeachment process.

Even if we ignore the fact that, legally speaking, the law is that impeachable conduct is literally whatever Congress decides constitutes such conduct, the very narrowest, defendant-friendly historical reading of the relevant phrase would still allow Congress to remove a president it believed was abusing the powers of the office, as such official abuse was understood by the framers of the Constitution. And Donald Trump’s admitted conduct is way past that line.

That Dershowitz has become a shameless hack is not exactly breaking news, but this is egregious even by his non-existent standards.

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