Impeachment

Trump Lawyer Alan Dershowitz Abandons His Position That Impeachment Requires a Crime

He says "criminal-like behavior akin to treason or bribery" is enough, even if it's not "a technical crime with all the elements."

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Harvard law professor Alan Dershowitz, a member of Donald Trump's legal team who has argued that "abuse of power" and "obstruction of Congress" cannot be grounds for impeachment unless they involve a crime, has been trying to explain the inconsistency between that position and what he said during Bill Clinton's impeachment in 1998. "It certainly doesn't have to be a crime," Dershowitz said on CNN back then. "If you have somebody who completely corrupts the office of president, and who abuses trust, and who poses great danger to our liberty, you don't need a technical crime."

Dershowitz says his view has changed because of historical research he has done since then. At the same time, he has modified his current position in a way that resolves the inconsistency at the cost of making his argument much less helpful to his client.

In his 2018 book The Case Against Impeaching Trump, Dershowitz says the text of the Constitution, including the phrase "high crimes and misdemeanors," "implies that cases of impeachment require crimes." He allows that the crimes might be violations of state law or common law rather than violations of federal statutes. But he is explicit in opposing what he calls "advocates of eliminating the requirement of a crime for impeachment," saying the Constitution does not "permit the inclusion of bad, even dangerous, 'misdeeds' that did not fit the definition of 'crime.'" He illustrates his point with an "extreme example":

Assume [Russian President Vladimir] Putin decides to "retake" Alaska, the way he "retook" Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to "its" original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution. (It would, of course, be different if he did it because he was paid or extorted.)

The position Dershowitz takes in his 2018 book is plainly at odds with the position he took in 1998. Here is how Dershowitz explained that shift on Twitter this week:

Crucially, Dershowitz is now conceding that "criminal-like behavior" could suffice for impeachment, even if it is not "a technical crime with all the elements." In a letter to The New York Times published yesterday, he likewise says "criminal-type behavior akin to treason and bribery is constitutionally required."

That standard seems pretty similar to the one embodied in the articles of impeachment against Trump, which allege that he betrayed the public trust in a way "akin to treason and bribery." In fact, the central charge against Trump—that he held up congressionally approved military aid to Ukraine in order to coerce the announcement of an otherwise unjustified investigation in the hope of discrediting a political rival—looks very much like extortion or bribery, even if it does not satisfy all the statutory elements of those crimes. It is, in other words, "criminal-like" or "criminal-type" behavior.

Confusingly, Dershowitz's letter to the Times says his current view is the same as the one that former Supreme Court Justice Benjamin Curtis endorsed when he defended Andrew Johnson during the 17th president's impeachment trial in 1868. Although Dershowitz did not cite Curtis in his 2018 book, he says his "independent research conducted over the past two years" has led him to conclude that Curtis was right. Yet Curtis took the position that Dershowitz staked out in 2018, not the modified position he is advocating now.

"There can be no crime, there can be no misdemeanor, without a law, written or unwritten, express or implied," Curtis said in his opening argument. "There must be some law; otherwise there is no crime. My interpretation of it is that the language 'high crimes and misdemeanors' means 'offenses against the laws of the United States.'"

That argument is consistent with what Dershowitz said in 2018, and it is consistent with what Trump lawyer Jay Sekulow and White House Counsel Pat Cipollone say in their trial memorandum, i.e., that "an impeachable offense requires a violation of established law." Curtis' argument is not consistent with what Dershowitz said this week, since Dershowitz now allows that "criminal-like behavior" could be impeachable even if it did not violate a criminal statute.

As scholars such as Cato Institute Vice President Gene Healy and Princeton political scientist Keith Whittington have shown, the weight of the historical evidence indicates that Curtis was wrong in 1868, that Dershowitz was wrong in 2018, and that Sekulow and Cipollone are wrong now. "That actual crimes are not a prerequisite for impeachment is a settled point among constitutional scholars," Healy writes. "The president can commit an impeachable high crime without violating the federal criminal law," Whittington says. "To conclude otherwise would be to ignore the original meaning, purpose and history of the impeachment power; to subvert the constitutional design of a system of checks and balances; and to leave the nation unnecessarily vulnerable to abusive government officials."

Dershowitz, after defending this view in 1998 and repudiating it in 2018, now seems to be reconsidering his repudiation. There are sound reasons for doing so, regardless of what you think about Trump's impeachment.

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  1. The wrong people won and they must be taught a lesson. The end.

    I wonder how Reason would react if a real Libertarian made it to the White House with one or two houses of Congress (don’t laugh; this is my hypothetical) and was promptly impeached and removed by the permanent government that didn’t want the cuts a Libertarian would make because they aren’t in the permanent government’s best interest.

    1. If the recent libertarian presidential tickets have taught me anything it’s they’d graciously step down and nominate a hilary clinton type democrat to take over for them.

      1. “She’s a perfectly fine person,” or some other such drivel.

    2. How orange is this hypothetical Libertarian president?

      Does he tweet mean things?

      1. No, but he asks open questions, like ‘what is Aleppo?’.

      2. Every buddy knows Libertarians are blue, not orange.

    3. unreason staff hate actual Libertarianism so they would love it if the Deep State got rid of a Libertarian who wanted to cut social programs, cut the federal bureaucratic budget, and keep a tiny and limited government.

      1. They’re similar to establishment Republicans. They’d prefer to lose so they can be pure and whine about it.

    4. My hope is that their reaction would focus on the details of whether the real Libertarian President actually committed impeachable offenses, rather than irrelevantly focusing on the motives of those behind the impeachment like a fool.

      1. This comment is hilarious

        “rather than irrelevantly focusing on the motives”

        Ahahahhahahhaahahhaha

        1. Yeah, I know, it’s hilarious to expect that anyone not commit the genetic fallacy.

          1. Poor defective, the entire impeachment is built upon created motives.

            Each hearsay ‘witness’ as well as the single actual witness has plainly stated that, while Trump never actually SAID X, they felt that he meant X and so, based on their feelings, he should be impeached.

            1. No, you’ve just changed the subject. We weren’t talking about the motives imputed to Trump by the witnesses—those motives are relevant to determining what Trump is or isn’t guilty of. We were talking about the motives of those pushing for impeachment and removal—those motives are irrelevant to that determination.

              1. Actually we were talking about how you constantly think you can pull off sockpuppeting and how the impeachment only lured cretins into believing it was justified.

                1. No, you’re the first one to bring up sockpuppeting or cretin-luring.

                2. You only think that because you’re a cretin.

                  You stupidly sockpuppet obviously, then screech “genetic fallacy” when we are discussing a political process where the motives are very much part of the overall process, and you cretinoulsy don’t understand why you were laughed at.

                  Now that I’ve explained it to you cretin, you’ll see it’s all there to be understood if you weren’t an impenetrable cretin, cretin.

                  1. Motives being part of a political process has nothing to do with whether the accusations at the center of the process are true or false. Even supposing that Woodward and Bernstein, or the entire Democratic Party, were motivated by a vicious and irrational animus against Nixon, that wouldn’t change the fact that the charges against Nixon were true.

                    1. So then the motive behind the accusations against hunter biden doesn’t matter either then. Which means trump didnt do anything wrong and the investigation into burisma and the bidens should have happened.

                      Thanks for just losing your own arguenent lol

                    2. You’re right that the motive behind the accusations against Hunter Biden doesn’t matter to the truth of those accusations. But it certainly doesn’t follow that Trump didn’t do anything wrong. Even if we assume that the accusations against Hunter Biden are 100% correct, that doesn’t mean that Trump had any knowledge of that fact or that (if we assume Trump did have knowledge of that fact) his way of responding was at all appropriate. Police engage in terrible misconduct to frame criminals who are in fact guilty all the time.

                      If you want to find out whether Hunter Biden did anything wrong, it would be foolish to spend time on Trump or Giuliani’s motives. And if you want to find out whether Trump did anything wrong, it would be foolish to spend time on (e.g.) Pelosi or Schiff’s motives.

                    3. Dave2, the entirety of alleged “wrongdoing” consists of alleged motive.
                      You can’t have your cake and eat it too, no matter how much you want a pony

                    4. Again, the motive of the person accused of an offense is often relevant to determining whether they committed that offense. But the motive of those accusing or defending that person is irrelevant. Which of these statements do you dispute?

              2. Shorter Dave: motives only matter when they help my side.

                Seriously, fuck off with this pathetic shit, nobody’s buying it.

                1. No, it’s quite general: the motives behind an accusation have nothing to do with whether that accusation is true or false.

                  1. That’s comical.

                    1. So if Woodward and Bernstein, or the entire Democratic Party, were motivated by a vicious and irrational animus against Nixon, that might change the fact that the charges against Nixon were true?

                  2. Well I’m open to the argument it doesn’t matter what the Dems motivation is for impeaching Trump, whether it’s to keep him from winning the 2020 election, or even possibly because they thought he committed an impeachable offense. If there is any plausible case that actual wrongdoing was the motivation then let’s just let the Senate decide.
                    Butif that’s the case why are they focused on Trump’s motivation for asking for the investigation of the Bidens?

                    If there is any plausible motivation, then let’s check that box and move on to aquittal.

                    Either motivation matters, and both the House’s and Trump’s motivation should be a legitimate part of the inquiry, or only the facts matter and motivation isn’t a factor.

                    Either case works to Trump’s advantage, along with a 53-47 Senate majority of course.

                    1. Consider Nixon. It doesn’t matter what the Democrats or Republicans accusing or defending Nixon had as their motives. But it certainly matters what Nixon’s motives were if we’re trying to determine whether to impeach and remove him or not.

                      In general, if we’re trying to find out whether someone has committed an offense, the motives of those making the accusation are irrelevant. For that matter, the motives of those defending the accused against the accusation are also irrelevant.

                      But if the offense in question includes motivation (cf. the way intent is relevant to determining murder as opposed to negligent homicide), then the motives of the accused are perfectly relevant. So unless you think that impeachable acts are to be understood completely independently of the President’s motives, you’ll have to admit that the motives of Trump are relevant.

                    2. Dave2, everybody!
                      Be sure to tip your waitress

          2. Dave’s not home man.

    5. I wonder how real Libertarians can support Trump. Trump supporters believe lying about a b.j. is impeachable but withholding foreign aid already appropriated by Congress until the recipient agrees to investigate a political opponent isn’t. The end.

      1. “Trump supporters believe lying about a b.j. is impeachable but withholding foreign aid already appropriated by Congress until the recipient agrees to investigate a political opponent isn’t. The end.”

        Since what you claim didn’t happen, it sort of leaves you as a lying POS, doesn’t it?

        1. The bj didn’t happen? Because Trump withheld money already appropriated by Congress, asked the leader of the recipient country to investigate a political opponent, and then released it when his own Defense Department told him it was illegal to continue withholding it. I’m not sure why so many Trumptards are drawn to a Libertarian site…

          1. No, the blow job definitely happened. Bill was a horndog.

          2. I missed the public announcement by the Ukraine that they were investigating Biden? Or have they still not gotten the aid?

            1. Thank you for your understated humor, R Mac.

            2. Ukraine didn’t need the public announcement thanks to our Defense Department. But there is no question Zelensky told Trump he would do it. And then Trump told Zelensky to work with Guiliani, since it’s very common for a governmental investigation to be lead by a president’s personal attorney. And, of course, Trump has repeatedly changed his reason for the “investigation” – at first it was to make sure Ukraine isn’t so corrupt it isn’t eligible for the aid, despite the fact the Defense Department already certified it as being eligible, and then he threw in the argument that other countries aren’t contributing anything (which isn’t true, not to mention the fact he never asked them to contribute more). But keep drinking the Orange Kool-Aid. Perhaps you would feel more comfortable, and be more in your element, at InfoWars.

              1. Can I get a Faux News?!

            3. Well, R Mac ‘n’ Cheese, there is about $20 million Ukraine never received because of your beloved Trump fucking with the delivery.

              1. They should impeach him for that!

              2. “Well, R Mac ‘n’ Cheese”

                *cringe*

          3. No, the BJ happened, but that wasn’t what Clinton was impeached for. He was impeached for perjury and obstruction of justice, not for getting a BJ.

            The perjury was for lying under oath and the Starr report clearly specified what the lies were, with the court/deposition transcripts and the countervailing facts. The obstruction of justice was for trying to convince witnesses to lie about things to the authorities and illegally dispose of physical evidence. Feel free to read the actual report, it is an easy read and lays out the facts and evidence concisely and clearly.

            Then read, or try to, the second volume of the Mueller report. It is a tangled mess of “well here are bunch of perfectly valid reasons to do what is alleged – so they aren’t obstruction” mixed with “but if we ignore that and *assume* corrupt intent instead … some of these *might* be obstruction … but most aren’t even *with* a corrupt motive”.

            But more importantly to the thread, Clinton was not impeached over a BJ. Had he not lied under oath in a relevant case and had he not instructed witnesses to lie and destroy evidence, then he wouldn’t have been impeached – and he wouldn’t have had to cut a deal on his last day in office with the DoJ to avoid prosecution for said crimes.

      2. I haven’t seen any evidence Trump lied about a blow job, besides everyone lies about blow jobs.

        If I told you I had a blow job today then there is probably 95% chance I’m lying. If I said I didn’t have a blow job today there is also a 95% chance I’m lying, otherwise why would I bring it up?

        But I’ve never heard Trump actually talk about blowjobs, so I’m pretty sure he’s not lying about it, and didn’t commit an impeachable offense.

      3. Lying under oath isn’t impeachable now. Got it.

      4. Clinton was not impeached for lying about a blowjob. Anyone who spouts that nonsense is either, a liar, an idiot, or uninformed. There are no other reasons.

        Clinton was impeached for perjury. Lying, under oath, about whether or not he had a sexual relationship with an intern, suborning her perjury, and seeking to bribe her for it. All of which he absolutely did, for which they had direct evidence. All of which are felonies, for which he was stripped of his law license; one of which is an actual crime specified in the Constitution as deserving of impeachment.

    6. Reason proved Dershowitz did not “change his opinion” in the sub header of the article. Dershowitz said “technical crime”. Clinton was charged with process crimes, perjury and obstruction of justice.

  2. But having to punt to “criminal-like” behavior is not really a powerful persuader that Trump has to go right now! And let’s face it: when you get down to it this is an exercise in propaganda.

    1. Yeah, winning on a technical legalese argument doesn’t necessarily mean you win in the court of public opinion. Ask the folks who impeached Clinton if that matters or not.

      I’ve pointed this out before as well, but if Congress has such a problem with Trump’s behavior why has no legislation been introduced to make what he did illegal? Remove all doubt, if he (or anyone else) does it again then it’s illegal and definitely impeachable.

      I suspect the answer is that they want the executive to be able to do what Trump did, they just don’t want Trump to be able to do what Trump did.

      1. Ding! Ding!

        1. Indeed.

          We could make it a capital offense to ask a foreign government or official to investigate any American citizen for any reason whatsoever.

          Such a law would of course make what Trump is accused of doing illegal.

          What would be the downside?

      2. True.

        And….

        I’m almost certain Obama did way worse.

        1. Like running assault weapons to the drug cartels in the continuation of “Operation Fast and Furious”?

      3. I believe it was Warren who was pressed on this very topic. The mask slipped a bit for she initially said yeah that was bad, then immediately backtracked and said she’d have to go look it up or something. Basically as soon as she realized she had just confirmed Biden’s behavior as bad, she backpedalled.

        But they also can’t submit a bill to make it a crime because that hangs a lantern on the fact that it isn’t one right now and thus that they are not going after a POTUS for committing a crime. Just like they avoid talking about the treaty the U.S. has with several countries, including Ukraine, specifically to help each other in corruption investigations. That would no the so bad if they had actual proof of bad intent, but all they have are assumptions -as their witnesses have acknowledged. Somehow, Trump has the ability to predict the future a year in advance, given that some of what they claim supports his alleged intent to derail Biden started a year or more before Biden said he was running.

  3. dude’s been an attorney for 398 years he’s gonna have taken oppo-sides along the way

  4. At this point I want to see him get impeached just to see what happens. You really think people will take this sitting down? The man is driving crowds of 100,000+ and the election isn’t for another 10 months.

    400 million guns pointed at the swamp. Talk about a reduction in the size and scope of the federal government.

    1. All-talk, disaffected gun nuts are among my favorite no-count clingers.

      1. But enough about the FBI.

        1. We have had some problems at the FBI. A step in the right direction — the first Democratic FBI director in American history — seems likely to occur soon.

          1. Strange, I heard the FBI was nonpartisan and beyond reproach. Especially under the adept leadership of James Comey. Considering you only have 6 pre-programmed lines you’d think you wouldn’t forget last week’s talking points so quickly.

          2. Rev. Arthur L. Kirkland
            January.24.2020 at 3:34 pm
            “We have had some problems at the FBI…”

            YOU have problems with brain damage, asshole bigot.

            1. It’s weird he sounds like a sports fan with the “we” shit, talking about the FBI.

              1. They don’t admit 8th grade dropouts into the FBI Academy.

      2. Seriously though, don’t you ever get bored with copying and pasting the exact same thing into every thread Hihn? Or is your brain so rotted out from the senile dementia that you don’t even realize you’re doing it at this point?

        1. You’re a fan of vague threats of violence aimed at your betters, too, Meriwether?

          Getting your impotent ass kicked in the culture war has made you a lame whimperer.

          1. None of that was a threat of violence in any way shape or manner Hihn. I wouldn’t waste my time pissing on you if you were on fire. You should kill yourself because it’s the only way you’ll ever attain even the slightest shadow of some dignity, but I’m certainly going to do it. Didn’t threaten to do it. Never have.

            If rolling back 50 years worth of regulation and watching you lose control of congress because your party has unsuccessfully tried to coup the president for 3 and a half years constitutes getting my ass kicked in the culture wars then please keep at it. The more you regurgitate your 6 slack jawed bumper sticker slogans like the mentally defective worthless old piece of demented subhuman shit that you are the more you seem to keep losing and losing and losing and losing elections. It’s a good thing you’re so fucking stupid or else you might stop. LMAO. MAGA.

            1. The rev won’t stop. And hopefully he won’t change a thing. Haha

            2. The Rev isn’t Hihn. Arty came here when Coloma was integrated into Reason. Colony regulars say he has been slithering around there for over a decade.

              So likely not Hihn. Bu another loser that needs suicide right away.

          2. Rev. Arthur L. Kirkland
            January.24.2020 at 3:36 pm
            “Getting your impotent ass kicked in the culture war has made you a lame whimperer.”

            Getting your and that hag’s impotent asses seems to have caused your brains to leak out of your ear, asshole bigot.

      3. Antifa are your favorite? Ok I guess.

      4. Hey Rev, open wide, papa trump has a maga load for you, five more years worth

      5. Not surprising, given thatyou can’t actually handle a substantive discussion or rational argument.

    2. It really depends if Pence goes along with him.

      President Pelosi for 10 months…? Yeah, that’ll go over well.

      1. I think the consensus is Pelosi becomes President, appoints Hillary as VP and then steps down, putting Hillary in her ‘rightful place’.

      2. If they try to pretend that overthrowing an election is business as usual, I imagine a lot of republicans will be going into hiding to. The swamp still has a ton of neo cons

        1. Progtards violently jerk it to that fantasy.

    3. He already did get impeached.

      If you meant removal, then yes I think your cohort of overweight, underemployed, gun-obsessed weirdos would take it sitting down. You don’t need to stand up in order to whine about shit on the internet.

      1. The rally in Richmond says otherwise

        1. Nah. These dorks love cosplay, everyone already knew that.

          1. They’re not the cretins in Guy Fawkes or Commie bandanas.

            How’d your party’s attempts to work up a bunch of overweight, unemployed, handout-obsessed losers to overturn elections and stamp out free speech go?

    4. If President Trump were to be removed the uproar might last a week. President Pence would in place and would be boring as hell, and we would all be so happy to just to have a boring person doing his job as we expect. I am guessing by November no one will even remember that Donald Trump was once President.

      1. Wow….just curious. Do you actually believe that?

        1. That he’s actually moderate? Nah.

      2. “ I am guessing by November no one will even remember that Donald Trump was once President.“

        Possibly the dumbest statement ever posted here.

      3. If Any of the coup attempts against Trump were to succeed, it would get real fucking bad for you progtards at a rate that would astound you Mod.

        Seriously, if that shit happens, the gloves come off.

  5. Hey Sullum, take your fucking meds and stick to topics you can actually comprehend — like how wonderful weed is.

    1. Sullum has no topics he can understand. Hence the TDS. He can get input from other TDS inflicted that work at unreason to round out the Propaganda article.

      1. Wah. Wah. Wah. I don’t like what the constitution says.

        1. And they say the left can’t meme.

        2. I like your name. Have I correctly deciphered it?

          Lick Trump’s tit u ti pe on

          1. The gematria doesn’t quite work.

        3. “Wah. Wah. Wah. I don’t like what the constitution says.” – Barack H. Obama

        4. “Wah. Wah. Wah. I don’t like what the constitution says.”

          Wah, wah, wah! I and the hag lost! I want my mommy! I’m gonna hold my breath!
          Fuck off and die, shitstain.

  6. What I like about the law is that it can be endlessly interpreted to mean whatever a good lawyer wants it to mean. That the section names treason, bribery and high crimes and misdemeanors might mean an actual crime to an uninformed citizen like me. but must mean something else, like wearing white after Labor Day, or not turning off a cell phone in a movie theater.
    Or acting just like a predecessor in office, but as a member of a different political party.

  7. I’m beginning to doubt the reading comprehension abilities of Reason writers. Dershowitz has been very consistent. Maybe stop relying on the paraphrasing and snipping of WAPO and NYT and read full primary sources.

  8. Do you expect people to believe anything a lawyer says?

  9. Argue argue argue argue argue….impeachable conduct is whatever a majority of the House says it is, and removable conduct is whatever 2/3 of the Senate says it is.

    I mean, let’s get real. The rest is just mental gymnastics to get to where you want to go.

    1. This guy gets it

    2. “That’s not impeachable under the Constitution”, however, gives Senators an easy way out in swing states; that is, they don’t have to rule on the merits, they can simply rule on the constitutionality.

    3. I mean why even have laws. It is only what a d.a. chooses to charge with and a jury to convict. Why bother with laws.

      1. Completely off-topic analogy. Laws are administered by prosecutors and trial courts, which have appellate courts making sure the trials follow the law (2 levels of appellate in the federal system). It IS true, that once we reach the 9 people on the Supreme Court…..”mental gymanstics to get to where you want to go,” is EXACTLY what they do, much of the time.
        The Senate impeachment trial isn’t going to be reviewed by anyone. They can do whatever the fuck they want. The House impeachment wasn’t reviewed by anyone (subject to the actual removal going over to the Senate). They could do whatever the fuck they want, and did.
        I’m 100% right on this one. Our legal system is only “constrained” by the text of laws or Constitution when someone else is contraining you. For the 9 SCOTUS, or the majority House, or the 2/3 Senate, that’s no one.

        1. Theoretically, there are 300m+ citizens who have the right to hold their government accountable (nota bene: written by actual revolutionaries who included the 1st and 2nd amendments in the Constitution, and believe liberty requires bloodshed from time to time… the 9th amendment ain’t exclusively talking about written petitions)

    4. Finally…a voice of reason and logic.

  10. Lawyers are sophist, film at 11.

  11. I am no legal or Constitutional scholar but apparently I read something entirely different than all others when reading “Treason, Bribery, and other High Crimes and misdemeanors”. Misdemeanors are in fact crimes. I do not believe that is in dispute. I spent time in jail for a Class A misdemeanor. If misdemeanor IS a crime, then what is a High Crime? I would say a Felony. Treason and Bribery are both felonies. In my interpretation, They list what they feel to be the most egregious high crimes–or felonies–a government official could commit–treason and bribery— along with all other felonies and misdemeanors. I believe and will never waiver that a crime needs to have been committed to remove an official from office, say like lying to Congress under oath. Just may view.

    1. I am a legal scholar and I agree with you.

    2. Misdemeanors also have a specific context relative to the time the constitution was written. Progtards don’t like historical context. It interferes with their ongoing revisionism.

    3. Your interpretation is conveniently ignorant of English case law, but, hey, you need to make your interpretation come out in Trumpy’s favor.

      1. Got an example?

  12. I can’t wait to watch the Defense argument from the lawyers of OJ and Epstein.

    1. Are we back to defending bad people makes you immoral?

      1. 30-something going on 14; you expect more?

    2. Not enjoying the histrionics and devil-shouting of Goody Nadler?

    3. They’re gong to put democrats on trial. I can’t wait to see the Bidens under cross examination. And Schiff if they can do it. I would destroy these fuckers, and as many other complicit democrats as possible.

  13. Yet the constitution says “High Crimes and misdemeanors”. I would think if a President abused his power that badly, you could find a misdemeanor crime at the very least to charge the President. Abuse of power is little more than an opinion. So if Trump committed a crime, is it lack of courage to charge him with it, lack of evidence, why?

    1. In this case the abuse if power is setting foreign policy.. which is literally a listed power of the president.

      1. Funny, my copy of the Constitution says Congress has the power to regulate commerce with foreign nations, the House has the sole power to originate spending money, and the powers of the President has all kinds of advice and consent of Congress clauses. But you just like to make up shit.

    2. I doubt there has ever been a president, whose actions the opposition didn’t think was an “abuse of power”.
      That’s why it would need to be a truly bi-partisan vote of both Houses of Congress to impeach and remove.
      So far the only vote of one of those Houses has been bi-partisanly against impeachment.
      And it is doubtful that the other one will be anything different.

  14. Sullum, let me break it down for you.

    Technically, impeachment doesn’t “require” a crime; meaning, the Senate could remove someone from office without even the allegation of a crime.

    Practically, impeachment does “require” a crime, in that the Senate is not going to remove a president over the kinds of b.s. that Democrats are alleging.

    I know, Sullum, the English language can be a bit ambiguous at times and hard to follow. But do try to keep up.

    1. He can’t, and he won’t.

    2. Dershowitz is only talking about the technically part, idiot.

      1. Oh, you are a little slow, aren’t you? Reason accuses Dershowitz of flip-flopping. I’m saying Dershowitz isn’t flip-flopping because some of his remarks have been about the technical part, and some of his remarks have been about the practical part. Get it now?

  15. A lot of us who aren’t right-wingers or left-wingers are interested in this because of the bigger issue of ousting presidents, not just worried about what happens to Trump.

    Healy links to a helpful article that notes, “Many of the impeachments approved by the House of Representatives have included conduct that did not involve criminal activity. Less than a third have specifically invoked a criminal statute or used the term ‘crime.'”

    1. Name on President that’s been impeached sans a crime. Not a judge or other official, a president.

      There aren’t any.

      1. One: edit

    2. “not just worried about what happens to Trump.”

      Except the people running this impeachment are only doing it because it’s Trump. And they don’t give a shit about you, or your naive hopes for accountability of politicians in the future.

    3. Very few libertarians here or Reason, lots of conservatives (some with libertarian leanings) and a few liberal trolls.

  16. “Dershowitz now allows that “criminal-like behavior” could be impeachable even if it did not violate a criminal statute.”

    Sorry to rain on your parade, but the criminal like conduct still must be tantamount, under Dershowitz’ s abuse of power standard, to a high crime like bribery or treason.

    You can spin it all you like, but the charges against Trump fail that test. His criminal like conduct is status quo “abuse of power” that every president in some form or fashion has indulged. Try again.

    1. Uh no. No president would do what Trump did because it is so stupid. I think Trump is exponentially superior to W Bush and I know W Bush is smart enough to know not to do something like this. Cheney actually did commit an impeachable offense pressuring the CIA to water board detainees into giving false confessions to tie Iraq to 9/11—but that was because Cheney sent soldiers to die on a lie along with squandering trillions of dollars!?!

      1. “Uh no,” what? If you’re implying that abuse of power ain’t been status quo, my suggestion is to educate yourself.

        Start with George Washington, and epiphanies should follow.

        Ps. I’m not sure what Cheney has to do with my point.

        1. Cheney committed an impeachable offense it just didn’t come to light until he was out of office. Btw, I will give you the benefit of the doubt because you actually seem informed so I believe you are an imbecile and not an ignoramus.

          1. When did Cheney become president? (Not de facto, de jure.)

            1. A VP can be impeached.

              1. So how many have to get impeached until the hag ends up POTUS?
                Pretty sure a fucking lefty ignoramus like you has it all worked out.
                BTW, you and that hag lost. Grow up.

                1. I like your style, Sevo. Keep up the good work-seriously.

                2. I am a Republican.

              2. “A VP can be impeached. “

                That’s lovely. What’s that got to do with my assertion about Presidents?

      2. So you missed Obama’s executive and the FISA abuse to spy on people linked to Trump? You missed the use of the FBI under Hoover to help silence political opposition? Missed the IRS scandal?

        All trump dod was ask someone we have a joint legal pact with to look into corruption that both the NYT and Politico highlighted. What is it you think he actually did? Actually give Ukraine weapons? The prior president did even while they were being fucking invaded.

      3. I think Trump is exponentially superior to W Bush and I know W Bush is smart enough to know not to do something like this

        Do what? Ask Ukraine to cooperate with the US AG? Why the hell wouldn’t he do that? The only reason this is remarkable is because of the wild conspiracy theories Democrats have spun around it.

  17. Not only is everyone piling on, now they’re ponding with the elbows.

    What a fricken sham this whole thing is.

    1. How dare these Democratic peons besmirch Dear Leader like this! For shame!

      1. Meh.

        You and I both know the second a ‘deep state’ establishment President gets back into power they’ll go back to ignoring the transgressions they claim to be against at the moment.

      2. Dear Leader attended an anti-abortion rally, therefore anything He does is A-OK with Jesus. Why do you hate Jesus?!

        1. Funny how Leftists constantly use the terminology of totalitarians in North Korea and Iran so naturally

  18. The best reason not to impeach a president is generally because the VP would be worse. But that is also why you know Democrats really believe in this impeachment because President Pence is a Democrat’s worst nightmare. From a Democrat perspective Trump has been a pretty good Republican president.

    1. Trump has been solid.

      I find it perplexing Reason hasn’t covered prison and tax reform from a positive angle. Unless I missed it.

      Moreover, as we’ve noted repeatedly, no real military entanglements or unwise decisions like Obama did with Libya.

      And that economy. It keeps moving.

      Just how bad is this guy? Because he asked a favour? When Obama said ‘I’ll have flexibility after the election’ no one fainted. Trump does this and everyone needs a fainting couch. Never mind about the fishiness of the Bidens. Heck, I still want to know exactly what Hillary and Podesta were up to in Russia.

      Despite the entire media, celebrity and political classes against him plus Granny’s kitchen sink, it’s been a rather productive four years I’d say.

      Bunch of hypocrites.

      Damn you all for making me cheer Trump giving shitheads the (Italian salute) finger.

      1. Uh, 3 Americans were just killed by Al Qaida in Kenya because Trump stepped up attacks in Somalia. So unfortunately Trump has engaged in foolish entanglements like Obama. I guess they don’t cover Trump failing to protect Americans overseas on Fox News?!?

        1. I’ll grant that. But one has to admit there’s been more restraint.

        2. Yeah, because the only reason Al Shabab kills people is in response to Trump stepping up attacks, right? /sarc

          Seriously, blaming Trump for the actions (even retaliations) of terrorist organizations is absurd. Al Shabab/Al Qaeda will attack US interests no matter what.

          1. Then what was the point of the Benghazi investigation??

            1. Should’ve been about
              -why those Americans were in Benghazi
              -why security was minimal
              -why reinforcements weren’t sent earlier in the attack
              -why the nature of the attack was covered up by the administration

  19. Who the hell is Dershowitz trying to gaslight!

  20. You birds are fucking hilarious. Hey Trump just handed over the nuclear codes to V. Putin in exchange for a shiny new hotel in Vladivostok and, in return, Russia just launched all the missiles in order to turn the US into a radioactive wasteland. Well that’s not Technically a crime so fuck off in a 500 rad nuclear wasteland, whiny libtard, with all your impeachment talk.

    1. And he goes full Jeff.

    2. Do you understand the irony of your statement? Under obama, Hillary initiated a technical trade pact with Russia through firms on Skolkovo. This transfer was largely one sided. Eventually russia used some of the technology of this deal in their hypersonic program. So Obama actually helped build russias new threats.

      Hilarious the irony here.

      1. “Do you understand the irony of your statement?”

        This is a 30-something going on 14; s/he thinks ‘irony’ is what mom gets the cleaners to do with his Levis.

    3. Oh, look. Fuckhead’s projecting Democrats courting Iranian 12 Imam doomsday insanity onto everyone the Republicans.

  21. The last 2 hours of the opening statements were just plain pathetic. Russia Russia russia. Trump is a king. Committed crimes we didnt charge him with.

    It was 2 hours of spaghetti against the wall. Absoluty pathetic.

    1. Let’s be fair about this.

      The Team D presentation was very well rehearsed.
      The Team D presentation attempted to check all the boxes.
      The Team D presentation was agonizingly repetitive. Ouch!!!!!!!!

      1. Agreed.

  22. Sullum, Healy, et al, are just being silly. There is no “correct” answer to the question whether a “real crime” is required for impeachment. The Framers of the Constitution each thought whatever they thought, the state conventions which ratified the document each expressed the muddled views of those who participated in the state conventions, and the Impeachment Clause now means whatever the person reading it thinks it means.
    The House and the Senate decide what impeachment requires, and what conviction and removal require, and that is a purely political decision. Any pretense that there is some objective legal standard for determining whether impeachment is warranted, is into self-delusion.
    Why do people pretend that there is some correct answer?

    1. “Why do people pretend that there is some correct answer?”

      The answer to that question is in front of you, in front of us. Absent a “correct answer” to what criteria constitute impeachment/conviction, well, you end up with Adam Schiff and his cult of delusion. And worse.

      Absent cogent criteria or some objective limit test for igniting impeachment, you get crazy people making judgement calls that 1) contravene the will of the body-politic and 2) reduce the separation of powers doctrine to legislative schizophrenia.

      That’s just for starters.

      1. Or litmus test, even.

  23. Dershowitz today is like paying big bucks to see The Rolling Stones.

    He has had a stellar career. The Mick Jagger of lawyers but it is just nostalgia now. He still has some gas in the tank.

    So if you meet him have some sympathy.

    Have some courtesy and some taste.

  24. “That actual crimes are not a prerequisite for impeachment is a settled point among constitutional scholars,

    “The science is settled.” When your side’s position is that it’s not even worth having an honest discussion, you’re not on the side that’s acting intelligently. I’ve taken some time to become educated in what Dershowitz is saying, and there’s several degrees of nuance that Sullum seems to lack. Dershowitz is right now, and he was essentially correct in 2018, just like Curtis was right in 1868.

    Notably, Johnson did break the law, but it was a law that was designed entirely to entrap Johnson solely because he was unliked. Curtis was eloquent in convincing the Senate, which had an easy path to remove Johnson with 2/3 majority, to vote to acquit. You absolutely should read his opening argument, linked in the story and again here:

    https://famous-trials.com/johnson/482-curtisopening

    1. In 1868, Congress hadn’t had the time or the inclination to have made virtually everything the subject of their “legislation”. So, they needed to pass a law “that was designed entirely to entrap Johnson solely because he was unliked.
      Nowadays, there are so many “laws”, quite a few of which wouldn’t stand up to Constitutional scrutiny, that they probably could find one that any person would have committed, if they searched hard enough.
      In the TDS fevered minds of many in Washington, Trump has violated multiple “laws”, simply by drawing breath.
      That’s why they’ve been talking about his impeachment for 4 years and two months, which is three years and four months longer than his “latest” offense.

      1. The law that Johnson broke, also, was later described by the Supreme Court as unconstitutional. What’s interesting is that Johnson defying it was basically the only legal challenge it would ever entail because there’s no court system that can try the President, only Congress. Congress essentially passed a law dictated what the President could do in defiance of separation of Powers.

        The Supreme Court did make a note in a later case (Myers v United States) that the Tenure of Office Act of 1867 was invalid and should never have been passed.

        1. “What’s interesting is that Johnson defying it was basically the only legal challenge it would ever entail because there’s no court system that can try the President, only Congress.”

          That is merely an opinion of the DoJ, it is not in the constitution that the federal officers subject to impeachment can not be tried for crimes. Not only does it not say this, but early on impeachable officers were charged – right up to the VPOTUS – while in office for crimes committed while in office and some were indeed tried.

          If the constitution said, or even implied, that you couldn’t put an officer of the government on trial unless by impeachment in Congress then you would not be able to charge them either. If that were the case, then we wouldn’t have seen that very thing happening shortly after the signing.

          For example, Burr was charged with murder in two states for his famous duel in which he killed Hamilton. It didn’t reach trial but largely for things we would find alien today: the duel was illegal but the killing was not because it was the result of a choice to engage in a duel – possibly to the death. If it were the case that the VP under the constitution could not have been tried by any body save U.S. Congress, Burr would have been able to assert that rather than fleeing to avoid prosecution. (There was also disagreement as to whether Burr technically fired in self defense as he fired second – some claim Hamilton fired in the air, others that he just missed Burr – and I’m sure you can guess which side claimed what. 😉 )

          Burr, a sitting VP, was charged with a misdemeanor for the duel and murder in NY, and murder in New Jersey where the duel took place. If he, as VP, was immune under the impeachment clause he wouldn’t have had to flee to Georgia. As a lawyer he would have known this. Further when he returned to D.C. he presided over an impeachment trial for a SCOTUS justice.

          Not just Burr’s behavior after, and not just the state courts charging him, but his allies’ conduct betray the fact that his status as VPOTUS conferred no protection. They petitioned the courts to drop the charges but not due to some protection but to the fact that most duels never resulted in charges and that civilized nations didn’t consider a killing in a formal duel to be murder. The charges were eventually dropped – after Burr was no longer VPOTUS.

          Clearly, there was no belief at that time that impeachment being the only way to remove someone from that office meant they couldn’t still be charged and tried for actual crimes. If it were the case, that would have been argued and the situation settled. This was less than twenty years from the signing.

          Indeed, it would be far simpler and easier to dispense with that ridiculous notion of immunity. Let POTUSes, SCOTUS justices, and VPOTUSes (and anyone else covered by that clause) get convicted of a crime, let the House impeach on criminal conviction if they deem it serious enough, and let the Senate remove based on all of that if they believe the crime was worthy of removal.

          Note that the barrier for impeaching a SCOTUS justice is technically lower as the constitution says they serve for life “during good behavior”. This is relevant to the above example because the impeachment trial Burr presided over was for a SCOTUS justice who was accused by political opponents as acting partisan on the bench. Let that sink in for a moment.

          The outcome was: congress can’t force other branches to share Congress’ opinions. The Justice was acquitted.

  25. The Alaska example is bewildering. He’s actually arguing that a President that fails to defend the sovereignty of the United States in clear violation of his oath of office can’t be impeached?!? It’s hard to take someone like that seriously.

    1. Agreed, his example is terrible and illustrates a failed reasoning. In the best scenario of that it would require a treaty, which the POTUS can not do their own. Anything short of a treaty would be a literal invasion. Failing to defend a state from a foreign invasion would easily be treason.

  26. Hey, Sullum, do Nadler next. Explain the inconsistencies in his views on the Clinton impeachment and the Trump impeachment. Do Pelosi and Schumer as well.

    1. If you support the Clinton impeachment then you should have wanted Trump impeached after his first lie as president which occurred at his inauguration!?!

      1. You assume I do. Why?

        Nadler vehemently did not. Schumer did not. Pelosi did not.

        What, exactly, changed? Outside of no actual crime occurring here…

      2. If you think Clinton was impeached for lying to the public, you are ignorant of history. He was impeached for perjury and obstruction of justice. You know, federal crimes.

  27. Nit, nit, nit. The vote is still 51-50. Trump wins.

    1. Reason is a shit hole and little more than nevertrumper shillbots. It’s become disgustingly predictable.

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