Dershowitz to The Atlantic: Do not violate Constitution to safeguard it

Dershowitz to The Atlantic: Do not violate Constitution to safeguard it
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In the lengthy and thoughtful new cover story in The Atlantic magazine, senior editor Yoni Appelbaum has demanded that Congress immediately begin impeachment proceedings against President TrumpDonald John TrumpWatergate prosecutor says that Sondland testimony was 'tipping point' for Trump In private moment with Trump, Justice Kennedy pushed for Kavanaugh Supreme Court nomination: book Obama: 'Everybody needs to chill out' about differences between 2020 candidates MORE. He marshals a number of arguments in support of his thesis that President Trump has violated his oath of office, evinced little respect for the rule of law, and attacked the very foundations of our American constitutional democracy.

Appelbaum argues that these political sins demand the impeachment of President Trump regardless of whether or not he has committed any crimes. He suggests that the criteria for impeachment should be whether the “continued tenure” of President Trump poses a threat to the republic.


The fatal flaw in his thesis, a flaw that Appelbaum sometimes seems to note, is that the Framers explicitly rejected his proposed criteria for impeachment and demanded that the high constitutional threshold of “treason, bribery, or other high crimes and misdemeanors” be met. Appelbaum cites the Constitutional Convention during which an early draft included “treason, bribery, and corruption” but acknowledges that the final word was eliminated. He also acknowledges that the term “maladministration” was rejected as legal criteria for impeachment.

Yet, Appelbaum insists that the Constitution “as it was written” authorizes impeachment based on the subjective and expandable criteria that he proposes. He specifically wrote as his reasons for impeachment that today “the United States once more confronts a president who seems to care for only some of the people he represents, who promises his supporters that he can roll back the tide of diversity, who challenges the rule of law,” and finally, “who regards constitutional rights and liberties as disposable.”

These political criteria could be applied to nearly every president. Would Hillary ClintonHillary Diane Rodham ClintonDemocratic strategist laments 'low bar' for Biden debate performance Wasserman Schultz makes bid for House Appropriations Committee gavel Trump to hold campaign rally in Pennsylvania next month MORE have cared as much for the “basket of deplorables” who voted against her as for her base? How many Republican presidents have wanted to “roll back the tide of diversity”? What about when President Roosevelt challenged the rule of law when he decided to confine more than 100,000 Japanese Americans in detention camps and proposed adding justices to the Supreme Court to overturn decisions with which he disagreed? What about President Lincoln when challenged constitutional rights and liberties when he in fact suspended the writ of habeas corpus?

The Framers explicitly rejected, as grounds for impeachment, the various criteria offered by Appelbaum. James Madison objected that accepting subjective terms such as “maladministration” for impeachment will be “equivalent to a tenure during pleasure of the Senate.” Gouverneur Morris thought that an election every four years will “prevent maladministration.”

Despite this history, Appelbaum persists in rewriting the Constitution to incorporate as grounds for impeachment precisely those grounds that were rejected by the Framers. He argues that is “unfitness for office that necessitates impeachment” of President Trump. Appelbaum further argues that “his attacks on American democracy should be sufficient.” While perhaps they should be sufficient under a different Constitution, they plainly are not sufficient under the Constitution “as it was written.”

So the crowning irony of his interesting and challenging article is that, in order to safeguard the Constitution from President Trump, Appelbaum wants us to violate the Constitution, as it relates to impeachment. He acknowledges that it is unlikely that President Trump will be removed by the Senate even if he were to be impeached by the House. But he argues that impeachment by itself, even if it is not followed by removal, can have salutary political and tactical consequences. It would, essentially, disable President Trump from governing during the last two years of his first term.

Appelbaum argues that as soon as Congress begins the impeachment proceedings, “the president loses control of the public conversation.” His bottom line is that “there may be no more effective way to run out the clock on the administration than to tie it up with impeachment hearings.” Such a partisan approach to impeachment violates both the letter and the spirit of the Constitution. It would encourage wrongful weaponization of impeachment as a partisan political tactic to be deployed by both parties.

When the Republicans impeached President Clinton, they did it precisely because they thought that it was an “effective way to run out the clock” on the Clinton administration. To some degree, Republicans succeeded, as Clinton was tied up during the impeachment proceedings. But that is not the proper constitutional function of impeachment. The presidency of any particular incumbent is relatively short at four years or eight years, but the precedential consequences of impeaching a president without complying with the specific provisions of the Constitution “as it was written” are enduring. We should not violate the Constitution in order to safeguard it.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.