Impeachment

Let Us Bury Prof. Dershowitz' Inane Impeachment Theory

It is the crowning achievement of Professor Dershowitz' long career. Not in a good way.

|The Volokh Conspiracy |

Much has been written about what Prof. Alan Dershowitz's idiosyncratic (to put it mildly) views on the scope of the impeachment clause. Here's what he said Wednesday on the Senate floor, responding to a question about whether a quid pro quo can ever constitute an impeachable offense:

The only thing that would make the quid pro quo unlawful is if the quo were in some way illegal. Now, we talked about motives.  There are three possible motives a public official might have.  The first is in the public interest…. The second is in his own political interest. And the third would be in his own financial interest, just putting money in the bank….

I want to focus on the second. Every public official believes that his election is in the public interest…. And if a president does something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

The emphasis, I think it's fair to say after watching the video, is Professor Dershowitz's.

He clarified his position on Friday morning in an NPR interview:

NPR:  Some people understood you to say the president can do anything to get reelected just by saying his reelection is in the public interest. Did you mean to say the president can do anything?

DERSHOWITZ: I not only didn't mean to say it. I didn't say it. I never said anything like that. In fact, in the beginning of my statement, I talked about how strongly I supported the impeachment of Richard Nixon. Obviously, Richard Nixon committed many crimes in an effort to get reelected. He thought his reelection was in the public interest. My response was to a question about quid pro quo. The question was, if a person does something completely legal, the president does something legal completely within his power, but he was motivated in part by a desire to get reelected, would that turn that motive into a corrupt motive? And my answer was, no, it wouldn't turn into a corrupt motive. It would turn it into a political motive. But if he did something unlawful, if he did something improper, if he did something that violated the law, clearly a good motive would not serve as a justification.

I gave as an example President Lincoln, who called the troops back from the battlefield to go to Indiana to vote for the Republicans in Indiana. He was motivated in part by the public interest. He was motivated in part by his partisan interests. That clearly would not be an impeachable offense.

Law professors—even Harvard law professors—say a lot of ridiculous things from time to time, and I do not ordinarily use this platform to comment on them. Dershowitz's preposterous theory—that "purely noncriminal conduct including abuse of power and obstruction of Congress are outside the range of impeachable offenses," as he put it in his lengthy House testimony—has, as far as I can tell, virtually no support in the legal community. Quite the opposite; it has been roundly condemned and thoroughly discredited by scholars and commentators across a very broad spectrum of opinion and political persuasion, from Phillip Bobbitt and Laurence Tribe to Jonathan Turley (yes, the same Jonathan Turley who testified on behalf of the Republicans in the House impeachment hearings) to John Dean to my co-bloggers Keith Whittington, Ilya Somin, and Josh Blackman.

The only people other than Prof. Dershowitz himself (and Benjamin Curtis, White House Counsel to Pres. Andrew Johnson**) who took it seriously are those Republican Senators for whom it conveniently served as a kind of Harvard-certified constitutional patina for their decision not to call any witnesses to the impeachment trial: "After all, as Prof. Dershowitz demonstrated, even if the President's quid (military assistance) was offered explicitly and intentionally in exchange for the sole quo of Ukrainian help in discrediting a political opponent—even if John Bolton had secretly taped Trump saying that very thing to Zelensky ("You're not getting a nickel, Mr. Z., until I hear on CNN that you're investigation Joe Biden")—the President cannot be removed from office. So what's the point of hearing additional evidence on the matter?"

** Curtis advanced a version of the Dershowitz theory—which should perhaps be called the Dershowitz-Curtis theory, in honor of the only two prominent legal scholars who have adopted it—at Johnson's impeachment trial, and Dershowitz, in his extended remarks earlier in the week in the President's defense, cited to Curtis (and to no one else) in support of his theory no fewer than 24 separate times.

For a professor of constitutional law, this is quite an achievement: Concocting some personal theory, mostly out of constitutional fluff and nonsense, and then persuading people at the highest reaches of the US government to adopt it and act upon it! This would ordinarily be cause for congratulations, but I very much doubt that history will congratulate Prof. Dershowitz for his accomplishment.

I don't claim to be an expert with any deep knowledge of the history of the Impeachment Clause.  But one hardly has to be an expert to see how thoroughly odious and dangerous the Dershowitz-Curtis theory is.

A few examples. Remember Nixon's "enemies list"?  The American people, Prof. Dershowitz is telling us, cannot remove from office a president who orders the IRS and other federal agencies to harass those on the list of his political opponents.  Or a president who withholds federal highway funds earmarked for State X until the State agrees to disable some fraction of the voting machines in its big cities. Not impeachable. The president tells the leader of Y that (quid) he will veto any NATO action to counter Y's upcoming invasion of Z, as long as Y invests $100 million in a disinformation plan targeting the president's opponent in the upcoming election. Nothing we can do about it until that president is up for re-election.

Keith Whittington gives his own examples:

A president who brazenly granted pardons to minions who engaged in criminal activity to advance the president's own goals should not be tolerated until election day. A president who categorically refused to cooperate in any way with congressional investigations into misconduct in the executive branch need not be tolerated for another four years. A president who sweepingly refused to enforce laws with which he disagreed under the cloak of prosecutorial discretion need not be left in the position of chief executive. A president who rashly used American military power to assassinate American citizens and foreign leaders abroad or invited cataclysmic war need not be left as commander in chief. A president who stubbornly refused to use military force to protect American citizens and territory from foreign military aggression need not be left to serve out his term. A president who directed executive branch officials to use all available lawful tools to harass and intimidate their political enemies without any credible rationale for doing so need not be left in office to continue his campaign of governmental harassment.

According to Dershowitz, a president who did any of these things—indeed, a president who did all of these things—cannot be removed from office.

That is pernicious nonsense. As Whittington correctly points out, it is "contrary to the very purpose of including the impeachment power in the constitutional scheme. The framers recognized that the president, and other government officers, might abuse the discretionary power with which they are entrusted and they might do so in ways that are simply intolerable."

And incidentally, the example Dershowitz uses in support of the D-C theory is telling: Lincoln, he argued, could not be impeached for "call[ing] the troops back from the battlefield to go to Indiana to vote for the Republicans in Indiana," even if he was motivated "by his partisan interests."

Now, Lincoln didn't do what Dershowitz said he did. He didn't actually order that the troops be allowed to go "vote for the Republicans" in Indiana; he ordered that the troops be allowed to go vote, period—in the hope and expectation, of course, that they would vote Republican.

But suppose he had allowed them to return home only if they would "vote for the Republicans"? What if he let the soldiers return home only if they took an oath to vote Republican? Or if he gave those willing to take such an oath (but not others) $20 to defray their traveling costs?

In Dershowitz' view, that could not be an impeachable offense; Lincoln's "partisan motive" can't convert something not otherwise illegal into something for which he can constitutionally be removed from office.

If for some reason you are not deeply troubled by that outcome, do bear in mind that there might come a time when a president who does not share your particular political persuasion acts in this way.

Someone once defined chutzpah as the child who, after being convicted of murdering his/her parents, begs the court for mercy on the ground that he/she is an orphan.  I've got another illustration: Senators who say "Let the people decide in the 2020 election!" while simultaneously giving the President the tools to do whatever he wants and whatever he can, short of outright criminality, to distort that very process. We are likely to pay a high price for this perversion of our constitutional checks and balances, if not in 2020 then sometime down the road.

NEXT: Today in Supreme Court History: February 3, 1812

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  1. Sort’a reminds me of the gun grabbers argument that we can’t allow people to have guns because they might possibly at sometime in the future shoot someone with them. If you impute the worst possible motives to anyone’s actions, and make the rules based on that, then any action is an offense.

    1. This makes no sense. You don’t think we should take into account, in designing public policies and rules, the possibility that people with bad motives could take advantage of those rules or policies?? Among other things, we’d have a very different Constitution if the framers had adopted this view. And though I don’t consider myself a “gun grabber,” I hardly think it is unwise that we take into account, when designing our gun laws, that some proportion of people will indeed act out of “the worst possible motives.” To do otherwise is like an ostrich with its head in the sand.

      1. The problem with the gun grabbers isn’t that they want to “take into account” the possibility of wrongful acts. It’s that they don’t think that the constitutional right they’re organized to destroy constrains HOW they take it into account.

        On the contrary, they always try to “take it into account” in ways that reduce the scope of the right.

      2. The reality is that what we have here is a case of mixed motives. There were personal motives, public interest motives, and security motives. This goes to the heart of this impeachment case.

        So Professor, how do we draw the line on when something is impeachable when there are mixed motives? No House manager has really given a particularly good answer.

        What do you say?

        (PS: I think the question of motive is irrelevant)

        1. “…how do we draw the line on when something is impeachable when there are mixed motives?”

          You review evidence to determine the extent to which the motives were public-oriented or private-oriented. If the evidence persuades you that the impeached acted for the public benefit, rather than private benefit, that would be a good reason to acquit. But if the evidence leads you to believe that the public-oriented explanation was pretext for a private-oriented benefit, that’s a good reason to remove from office.

          I think you should reconsider this “motive is irrelevant” business. Suppose that tomorrow we discover a recording from the President saying: “I don’t care about corruption in the Ukraine and I know that Hunter Biden didn’t do anything wrong. But I am going to withhold funds as a quid pro quo anyway, because I want to win an election against Joe Biden.” Are you sure motive is or should be irrelevant?

          1. In other words we employ magical mind reading powers and pre-existing prejudices.

            1. It doesn’t take “magical mind reading powers”. They look at evidence and evaluate witness credibility. Or is it your view that in every case in which one witness says something that another disagrees with, the fact-finder has to just throw up its hands because we don’t have “magical mind reading powers”?

              Set aside testimony. There are emails involving the administration, with direct communications related to the Ukraine funding withholding. You don’t need magical powers to interpret the emails. You just need the emails. As to “pre-existing prejudices” that’s what a 2/3rds majority vote is for. If the Constitution had intended for unbiased fact-finders, it wouldn’t have submitted impeachment to the House and trial to the Senate.

              1. OK, let’s do a case example.

                Let’s say Trump decides that he doesn’t like Biden very much. And because of that, he says “I’m going to direct the DOJ to form a special new task force, fully funded and empowered, to investigate and prosecute any and all corruption by Joe Biden, Hunter Biden, and their associates”.

                Would that be an abuse of power, and would that be impeachment worthy?

                  1. Pathetic.

                    IOW N2J doesn’t want criminal actions to be investigated, if the perpetrator is someone N2J supports.

                    1. Wut? No, I’m against a President setting up a special task force and directing American law enforcement to specifically target just his political opponents. I assume you’d have a problem with President Obama setting up a special task force to investigate only Republicans? I mean, it was objectionable when the IRS independently of any command from the President, (was alleged) to have specifically targeted conservative groups for special scrutiny for charitable designation. If that’s objectionable, why wouldn’t it be objectionable if President Obama had created a special IRS task force to perform the same act?

                      It’s odd to me that there’s something “Pathetic” about not wanting the President to engage in targeted investigations of his political opponents. This isn’t Nicaragua, man.

                      But let me remove any doubt. If the DOJ thinks Hunter Biden or Joe Biden are violating American law, I would expect the DOJ to investigate. But that investigation should not be directed from on high, and certainly should not be driven by the President prioritizing resources on his political opponents. That’s not, in my view, an appropriate use of prosecutorial discretion. At any level. If a local sheriff decided to spend 100% of his time parked in front of a vocal critic’s house, waiting for that person to commit crimes, I think most of us would find that objectionable. Would you?

          2. Yeah, I hear you. The fact is, the aid was delivered, it was delivered within the statutory deadline. No investigation was announced. You seem to advocate an arbitrary standard. Define persuade. Is that 20% sure? 50% sure? Something else?

            To me, actions are the standard. They can be objectively, and impartially measured.

            Other: Thanks for taking a shot at answering. Because to me this was the crux of the matter.

            1. The fact that the aid was delivered is some evidence, I suppose, that the President was just performing due diligence on Ukraine corruption? The fact that it was delivered only after a whistleblower complaint and House investigation suggests otherwise. Ukraine’s President had planned to have an interview with CNN in which he would make public statements on the Hunter Biden investigation (according to William Taylor), but the aid was released before that happened. I think reasonable people can wonder why the President held up the aid and then only released it after an investigation into the hold up. At the very least, it casts doubt on the President’s arguments re: corruption and European contribution to Ukraine spending.

              Persuade can mean anything to anyone. I’m not persuaded by things if I’m 20% sure of, and if I ran into a person who so believed, their reasoning is alien to me. So, start at 51% for persuasion. Since impeachment and removal is a big deal, if I’m a Senator (or arguing for a standard) I’d probably want a heightened confidence quotient. Maybe 70%, 80%, or 90%. But that’s just me.

  2. Question for Professor Post: If Trump is re-elected despite impeachment, what do you think that means politically? Constitutionally?

    1. That’s not an easy question. It depends, first, on whether or not the election process turns out to be reasonably fair. I have my fears that the Senate has given this president a green light to take all sorts of actions whose purpose is solely to help ensure his re-election, and that he is going to accept the invitation to do so in ways that could well cause the election to be far from fair and legitimate.
      Putting that aside, and assuming the election is not fatally tainted by foreign interference and voter suppression, if Trump is re-elected with substantially less than a majority of the popular vote, I would view that as further evidence that the electoral college gives too much weight to the smaller states, and has outlived its usefulness. If he comes close to an actual majority, I would view that as evidence that the American people, like the Italians in the 1920s, like autocratic and domineering strongmen.

      1. “I have my fears that the Senate has given this president a green light to take all sorts of actions whose purpose is solely to help ensure his re-election, and that he is going to accept the invitation to do so in ways that could well cause the election to be far from fair and legitimate.”

        Could you be a bit more specific here? Because it seems to me that Presidents routinely take political effects into account when crafting their policies, and we don’t normally, in a democracy, consider that an illegitimate motive for decision making.

        What sort of actions did you have in mind?

        Also, you’ve set up somewhat of a “Heads I win, tails you lose” argument here: If Trump wins the EC without a popular vote majority, it indicts the EC. If he wins the popular vote, too, it indicts the American people.

        Why don’t you just come out and say that Trump can’t legitimately win, and what the voters might happen to think about who should be President has no bearing on it?

        1. “Why don’t you just come out and say that Trump can’t legitimately win, and what the voters might happen to think about who should be President has no bearing on it?”

          Why do you think the fact that Americans may like autocratic and domineering strongmen means “Trump can’t legitimately win”? I didn’t read “illegitimacy” into David Post’s conclusion.

          I assume that if the American people choose Bernie Sanders as President, you will “indict[] the American people” and criticize that decision, would you not? Maybe explain what you mean by “indicts the American people”.

          1. Fair enough, I WOULD consider the public electing Bernie Sanders an indictment of the American people, and yet, if all the formalities were followed, he’d legitimately be President.

            Alright, I retract that particular complaint.

          2. The American people will never choose Bernie Sanders. He might win with the votes of American citizens, 90% of whom who immigrated after the 1965 law are not real Americans.

            1. Turnabout’s fair play. I excommunicate you from being an American on account of your being mentally unfit to live in an open an diverse society.

        2. Examples of proper use of a president’s power to influence an election would be Trump increasing ethanol in gasoline to 15%, making steel more expensive with tariffs like Trump did, and Obama building a high speed rail line in the most important swing district in the country. Trump’s attempt to strong arm a foreign leader to engage in corrupt behavior by leveraging taxpayer funds is an example of improper behavior that amounts to an abuse of power.

          1. So you admit that Obama abused his power by spying and paying foreigners against the Trump campaign?

            So tell us again how it was ok for Obama and not ok for Trump?

      2. The gold standard for election purity is of course that the winners are the Democrats. Any other outcome is suspect, if not actual grounds for denial of the outcome.
        The Electoral College was put into the Constitution to ensure that voters in large cities do not pass laws denying rights of those in more rural areas. I do not see where anything in the present century has changed this concern. Want to mandate electric cars for rural inhabitants? I live in an area of California with high rainfall, where people do not water lawns, but was faced with a penalty for flushing the toilet because that was the only way to reduce water use. Metropolitan citizens view the rural areas as either vacation spots or pass-through farming lands.

        1. The Electoral College was put into the Constitution to ensure that voters in large cities do not pass laws denying rights of those in more rural areas.

          No it wasn’t. Your statement is nonsense.

          And do you think it better that the minority in small states dominate the majority who live in large ones?

          1. Ideally, nobody dominates anybody else.

            The original model for state legislatures, prior to Reynolds v. Sims, had one chamber representing population, and one chamber representing geography, (Just like the US House and Senate.) and neither could dominate the other, because both had to be in agreement to do anything.

            There’s a difference between the power to act, and the power to block action, IOW.

            1. The original model for state legislatures, prior to Reynolds v. Sims, had one chamber representing population, and one chamber representing geography, (Just like the US House and Senate.) and neither could dominate the other, because both had to be in agreement to do anything.

              No, the House didn’t represent “population” prior to 1P1V, because state legislatures were free to cram as many people as they wanted into one district in order to dilute their voting strength. That’s what Reynolds fixed. Amazing that anyone would think this was some sort of golden age.

              1. I don’t think there IS such a thing as a “golden age”.

                The “House” in question is the federal House of Representatives, which has always had a constitutional requirement that the states be allotted representatives in proportion to population, though it’s true they weren’t formally required to make the House districts equal in population.

                What Sims did was prohibit the states from following the model of the Federal government, in having one chamber based on population, and one on geography. They explicitly prohibited this model.

                And, yes, that model had been a mechanism to prevent urban areas from dominating states.

              2. “That’s what Reynolds fixed.”

                It fixed nothing, it just created other problems and made the courts more powerful.

                1. If you consider “allowing non-whites and homosexuals, along with their white liberal apologists in urban areas to run roughshod over the rest of the country,” then yes, Reynolds “fixed” the problem.

            2. I think we should try Heinlein’s model, one house requires 2/3 majority to pass laws, the other house’s function just repeals laws, and it takes just 1/3 of that house to repeal something.

        2. “The Electoral College was put into the Constitution to ensure that voters in large cities do not pass laws denying rights of those in more rural areas.”
          Not according to Madison. He said it was the option that took care of the extent to which the, ahem, limited franchise in the South led the South to reject an election of the Pres directly by the people.

          1. IOW it prevented the more urban North (cities) from dominating the rural South (farms).

            1. No. When the constitution was enacted, 50% of the nation’s population was located in southern states.

            2. No, most everywhere was rural then. The two factors Madison mentions are that 1) with a direct election, the count of 3/5 per slave would be irrelevant; and 2) even among white males, the franchise was more limited in the south than in the north. Mathematically, the 1st factor was more important.
              I am not therefore concluding that the EC should be dropped. But let’s be correct about why we have it in the first place.

      3. As opposed to an autocratic and domineering strongwoman?
        No, I think fear of batshit crazy proggies is more plausible.

      4. That’s not an easy question. It depends, first, on whether or not the election process turns out to be reasonably fair.

        Do you think the 2016 election was “reasonably fair”?

        1. Of course he doesn’t think the 2016 election was fair because HRC lost.

  3. Dershowitz refers back to the words from the constitution “Treason, Bribery, or other high Crimes and Misdemeanors”

    Is abuse of power akin to Treason or Bribery? You can find numerous essays arguing yes or no. The argument can never be settled.

    1. Pass a law defining abuse of power and the problem can be solved. Good luck with that, though.

      1. Why? It won’t bind either the House or the Senate in deciding the next impeachment. The best it could do is provide a talking point.

        1. Moreover, there’s no possible way to itemize in advance all the acts that could constitute abuse of power.

        2. Why wouldn’t it bind the Congress? A one-camber resolution wouldn’t, but a full bill, approved by both chambers and signed by the President?

          Congress passes laws all the time to provide details and definitions for things in the Constitution. How would this be different?

          1. It would only work if it was an Amendment to the Constitution. Passing a law, even just defining terms, would still be overcome by the Constitution itself.

            1. Your civics teacher completely failed you.

    2. Depends what you mean by “abuse of power.”

  4. I don’t entirely support Dershowitz’ position, but I do think you’re being unfair to him in your restating of it.

    The first question Dersh asks is, “Was the act itself criminal?” (Or very crime-like, anyway.) If the answer is “yes”, we need go no further, it’s impeachable. Good motives can’t redeem objectively criminal acts.

    If the answer is, “no”, let me quote Dersh: “the president does something legal completely within his power, but he was motivated in part by a desire to get reelected, would that turn that motive into a corrupt motive?”

    in part by a desire to get reelected.

    What he’s saying here is that having a political motive for doing something doesn’t taint an act which could otherwise be justifiable.

    Most hostile analysis of Trump asking Ukraine for an investigation just dismisses out of hand the possibly of a non-corrupt motive, and assumes that political motives where the whole of it. They’re ruling out a priori the situation Dersh is discussing.

    1. Trump violated the Control of Impoundment Act. No question about that. Unless you think it’s perfectly legal to rob a bank as long as the guards apprehend you before you get out the door.

      1. Absolutely question about it, because the money got paid on time.

        Even the Democratic House managers didn’t think this was a charge they could defend. The conduct in question is too common.

        1. Did it show up as a hard charge of lawbreaking? Nixon’s would have. Clinton’s did. Johnson’s did, even if it was ruled unconstitutional years later.

        2. Absolutely question about it, because the money got paid on time.

          Please stop telling this lie. Even if the Sideshow Bob defense were valid, it’s not true.

          1. Which part are you denying? That the money was paid on time, or that paying the money on time constitutes not impounding?

            The money was released on September 11th, it was due on September 30th. I’m pretty sure 11 is less than 30.

            Did it all get spent by the end of the fiscal year? No. Perhaps Trump was unaware as yet of just how inefficient government is at these things.

            1. Hey, the guard stopped me and took the money out of my hands. It never left the bank. No harm, no foul.

              1. Funny how you always build the guilt right into your scenarios, instead of leaving it to be deduced.

            2. Which part are you denying? That the money was paid on time

              Yes, that part.

              Perhaps Trump was unaware as yet of just how inefficient government is at these things.

              The “Trump’s not too corrupt to be president; he’s too stupid to be president” defense is not actually a defense. Moreover, the email chains in which DOD repeatedly told the WH that they were out of time to finish the process to comply with the law refutes that argument.

              1. Citation please, then?
                From the public records made available during this impeachment, it certainly seems that all expenditures were authorized weeks before the deadline.

              2. “Which part are you denying? That the money was paid on time

                Yes, that part.”

                So far your assertion is about as well supported as your blind adherence to the “Hands up, don’t shoot” narrative.

              3. This happens every year within every department of the US government. There are always outstanding orders at the end of the fiscal year. Some are because of government laws requiring invoices however the invoices cannot be sent if the goods/services have not been completed.

                Are you really that ignorant of government process David?

                Hell, I’ll bet the Congress itself had not spent funds before the fiscal year and had to reconcile and keep those prior year funds to complete transactions.

                IOW Congress did exactly what they accuse the President of doing!

      2. And there’s no question that the GAO found Obama’s admin violated the law at least 7 times. And Bush and Clinton before him. What exactly is your point?
        Selective enforcement against someone you dont like isn’t the answer. We may someday hold our leaders accountable but screaming into the void over this is weak sauce.

        1. What exactly is your point?

          His point is that “Trump didn’t break the law” isn’t true. What Obama did or didn’t do has nothing to do with whether Trump violated the law, so what’s your point, other than “Look, a squirrel!”?

          1. I don’t think you understand that there is a difference between “law on the books” and “law on the ground”.

          2. “Look, a squirrel” is my point. No one cared about the squirrels before, so why are you shooting them now?

            1. Dersh is the one requiring squirrels.

            2. Brett claimed there were no squirrels. captcrisis pointed out that there were one. If you think that the existence vel non of squirrels is irrelevant, talk to Brett, not us.

          3. He’s also j walked, and frequently blocks traffic when he travels. Yet these are not the charges that the house presented for the senate to consider.

          4. The Senate told the Dems where they could put the squirrel.

            I didn’t hear any of the Senators using the whataboutism, or look a squirrel defense. I did hear Lindsey Graham say he now recognizes that the Clinton impeachment was a mistake. I also heard him say one of his first priorities after the impeachment is to launch an investigation of exactly what happened in the Shokin firing.

          5. David, the GAO issued an opinion. An opinion that DOJ disagreed with. I don’t see a legal violation worth impeaching for.

            1. I don’t either. It’s the abuse of office, not a technical violation of the Impoundment Control Act, that justifies impeachment. But some people seem really hung up on identifying a specific statute that was violated. Right up until the point where such a statute is cited to them. Then they wish to claim it doesn’t matter.

          6. Unfortunately for David, Trump didn’t break the law. Perhaps you should look again at the law before making such bold claims.

      3. “Trump violated the Control of Impoundment Act.”

        The Act authorizes the Comptroller General to bring an enforcement action if an appropriation is not spent. There is no criminal sanction.

        Its not at all like robbing a bank.

        1. If we’re going to limit it to criminal sanctions, this administration’s position is that the President isn’t subject to them, anyway.

          1. There is not even a civil penalty.

            Captcrisis is the one who compared it to a violent felony.

    2. Well, I see your point. But I think Dershowitz is trying to sound reasonable when his theory has no room for reasonableness. Let’s suppose Trump had no other motive than ensuring his own re-election; suppose Bolton has the tape where Trump says “I don’t give a damn about Crimea or corruption in Ukraine – I’ll release the money when he announces he’s investigating Joe B (even if he’s not actually doing the investigation).” What would Dershowitz’ actually say about that? The “quo” is not “illegal,” (putting aside for the moment that actually it is illegal, under the Impoundment Act), so it can’t be impeachable. I don’t think that D. requires there to be some other “legitimate” justification in order to conclude that it’s not an impeachable offense – he may say that, but I think he’s just trying to make his theory sound reasonable. The “partisan motive,” for D., is not an illegitimate one.

      1. I don’t know what he’d say. I’d say, go ahead and impeach: As far as I’m concerned, using the resources of government for NO purpose but political, without even a fig leaf of public good, is beyond the pale.

        But it’s not the situation Dersh was addressing, because you haven’t got that tape.

        1. Well what about issues like ethanol subsidies for corn farmers in Iowa? There is no rational basis for continuing them other than buying votes. It is bad for the economy, it’s bad for the environment, it ruins engines, it causes needless expense for oil companies, it requires changing the fuel mix seasonally.

          Yet it’s an untouchable, because the subsidies buy in an electorily significant state votes.

          I’m not sure I buy the whole Desrshowitz argument either, but if the conduct is legal then it needs to have a very high bar to trigger impeachment.

          Here is one example, what if the President trades a pardon for an endorsement and a commitment to vigorously campaign for him. Volunteer services are not a thing of value, and no money changes hands, but the President is only doing it do get reelected. Is that impeachable?

          1. Yes, let’s use this example. What is the President said he would withhold ethanol subsidies for corn farmers in Iowa unless the state took Joe Biden off its ballot?

            1. Seems a case that gets made by the illegal nature of the ask.

              Back in the real world we’really talking about a legal ask.

              1. Which law would this violate?

                1. Well the Hatch Act surely? Aren’t state officials responsible for administering Federal grants covered?

                  And in your hypothetical does it matter if Trump’s insisting Iowa take Joe Biden’s name off the ballot, or if Trump is insisting Iowa takes his own name off the ballot? No, in either politically absurd scenario what matters *with respect to Dershowitz’s theory* is whether Trump has purely political motive, there is some mixture, or if it is done to benefit only the republic. Your hypo is not clear about that.

                  1. The issue is whether the President is breaking the law. The Hatch Act excludes the President. 5 USC 7322(1).

                    To answer your question, the hypo is that Trump is insisting that Iowa take Joe Biden’s name off the ballot. If there is no violation of the law by President Trump, under Dershowitz’s theory you’d look to motivation. That drives head first into the absurdity. It is enough for the President to assert that he was in part motivated to benefit the republic. That’s why the legal/illegal line drawing can’t work.

        2. It still amazes me that people cannot see that the evidence is strong enough to conclude Trump was almost exclusively motivated by political interest. And sadly, these folks won’t be persuaded no matter what Bolton says. Nor will they accept that Trump’s actions were akin to extortion.

          1. Personally, it still amazes ME that impeachment proponents can’t recognize that, if your case only persuades people who already hated the defendant, (And not all of those!) you’ve got a remarkably weak case.

            1. You would have a point if it weren’t also the case that impeachment opponents have only persuaded people who support Trump.

              1. Not so: The House vote lost several Democratic members. And there’s a significant chance the same will happen Wednesday.

                1. Only two Democrats voted against both articles of impeachment. One of those is now a Republican. The other is a conservative who represents a district Trump won b 30%-points.

                  1. Josh, sorry guy. Give that one a rest. This impeachment was a nakedly partisan act. There really is no getting around that.

                    What is done is done. POTUS Trump was impeached, the Senate will acquit. The best outcome is that this does no further damage to the fabric of our Republic. I don’t think that will be the case.

                    How long do you think before Team D starts murmuring about a second bite at the impeachment apple? I give it to July 4th.

                    1. The issue of another impeachment — inquiry or vote — should hinge on evidence, all of which should be sought and considered.

                    2. Wow, you’re sure optimistic. I give it until Valentine’s day.

      2. Your hypo removes the “in part” in D’s analysis so if there is no reason for the action other than political advantage then it cannot be defended. That was not proven in the impeachment process. The violation of the Impoundment Act is minor, especially considering Trump’s stated concerns about burden sharing and Ukraine corruption. Ask yourself if you would have supported impeaching Obama for the same infraction.

        1. Your hypo removes the “in part” in D’s analysis so if there is no reason for the action other than political advantage then it cannot be defended.

          Yes, that is such an obvious response that I frankly question the Professor’s good faith.

          Ask yourself if you would have supported impeaching Obama for the same infraction.

          We know that Obama told the Russian PM: “After my election I have more flexibility.” The clear implication is that he was withholding some action or position because he thought it would weaken his re-election chances. Is that impeachable? Granted, you can spin his words differently, and besides, all Obama did was refrain from some action. But a hostile House of Representatives could interpret it negatively.

          Dershowitz’s point, which is almost pedestrian, is that Presidents take actions (or nonactions) and take into account their effect on their own election chances, as well as those of their parties. That alone does not make something impeachable. If it did, everyone since Washington could have been impeached.

      3. Mr. Post: “I don’t think that D requires there to be some other legitimate justification… he may say that, but I think he’s just trying to make his theory sound reasonable.” Here’s an idea: shoot down his actual theory. Don’t say his theory is BS and then use as your justification that his theory isn’t what he says it is. If you had any evidence at all that D doesn’t mean what he says, why didn’t you make your post about that, instead of making an argument that makes no sense?

    3. Brett is clearly correct here; how does a lawyer of Post’s ability so badly deform Dershowitz’s argument?

      The Scholastics believed that such errors could not be from the Intellect, and were caused by the Will. I could speculate as to why Post *wants* Dershowitz’s argument to be wrong but I still expected an evenhanded analysis.

      1. He didn’t deform D’s argument. He ignored it. And I don’t think it was an accident, because when Brett clearly pointed that out out Post went to the argument that “Dershowitz didn’t mean what he said.”

    4. Basically Post is using the Progressive legal position that is used against the travel ban, etc. While it would be legal for other Presidents; Orange Man Bad so his usage is illegal.

      Once again showing that Progressives hate the Constitution and attempt to circumvent it to attain their desired goal.

      Note that Post says if the next election isn’t “fair” according to him then we have to get rid of the Electoral College and institute Direct Democracy (the antithesis of a Constitutional Republic.)

  5. Now we come to the real, glaring problem with this essay:

    “I’ve got another illustration: Senators who say “Let the people decide in the 2020 election!” while simultaneously giving the President the tools to do whatever he wants and whatever he can, short of outright criminality, to distort that very process.”

    And, what, pray tell, is the nature of this “distortion”? Are people being prevented from voting? Are the tallies being rigged? Electors being threatened? I suppose this is the implied meaning.

    No, the “distortion” literally consists of campaigning for the office. Attempting to obtain (Possibly true!) negative information about a possible opponent, which presumably would hurt them politically. A normal campaign activity, which is even admirable if the information is true and relevant; We don’t expect candidates to reveal their own dirt, now, do we? We count on their opponents to do it.

    In 2016, Hillary Clinton commissioned a work of fiction, the Steele dossier, in an attempt to distort the election process, no differently from what Trump is accused of. Save, of course, that the Steele dossier was such a steaming heap that even her allies in the media wouldn’t touch it until Trump was actually President, and all scruples were cast aside.

    1. Trump didn’t attempt to obtain possibly negative information. He attempted to create negative information.

      Hillary did not “commission a work of fiction.” She hired an oppo research firm to conduct opposition research. Even if the dossier isn’t true, hell, even if Steele deliberately fabricated it (something for which there’s no evidence), that’s not what Hillary did.

      But for the sake of argument, let’s assume she actually said, “Get someone to tell lies about Trump.” That’s not “no differently from what Trump is accused of,” because she was a private citizen. Such action might be sleazy and dishonest, but it can’t be abuse of office because she had no office.

      1. I assume there’s some objective facts involving Hunter Biden that an investigation could uncover, such facts would not be “created” out of whole cloth. If those facts were not negative, the attempt to obtain negative information would fail.

        “Hillary did not “commission a work of fiction.” She hired an oppo research firm to conduct opposition research.”

        She hired an oppo research firm whose specialty is collecting and/or fabricating scurrilous rumors, and then getting the media to credit them. (Apparently by hiring relatives of key figures in the media…) I have no doubt that she’d have preferred that the scurrilous rumors be true, the truth is harder to fend off. But you don’t hire Fusion GPS if the truth is a significant consideration.

        1. Brett, in your first paragraph, you argue that there’s nothing wrong with demanding an investigation because it would simply reveal the truth… and then in your second paragraph, you argue that there’s something wrong with an investigation because it would lead to lies.

          1. There’s something wrong with “an investigation” by Fusion GPS, because they’re notorious smear artists. They’re guaranteed to find something awful even if they have to make it up.

            1. Fusion GPS wasn’t Hillary’s choice. Her campaign (its lawyers, actually) accepted Fusion’s offer to continue the oppo research it was already conducting for the Washington Free Beacon.

            2. There’s something wrong with “an investigation” by Fusion GPS, because they’re notorious smear artists. They’re guaranteed to find something awful even if they have to make it up.

              Whereas the government of Ukraine is notorious for its integrity? Unlike the thing you just made up about Fusion, Trump himself said he thought Ukraine was corrupt.

      2. ” because she was a private citizen”

        She was a private citizen who was a leading contender for the office of President, AND in fact got the nomination of one of the two major parties. If Trump’s action were “intereference” in an election, then so was hers.

        The only real difference is that Trump used public money, while she used donated money. Count me unimpressed with the distinction.

        1. “The only real difference is that Trump used public money, while she used donated money. Count me unimpressed with the distinction.”

          I doubt very much that you don’t care about this distinction generally. But setting that aside, specifically where “abuse of office” is concerned, the salient distinction is between public and private conduct. If the President wants to use his campaign funds to hire people to advertise on his behalf, great. If he orders the military branches to march the streets in support of him, that’s an “abuse of office”.

          1. IIUC you are ok with campaign funds being used to pay foreigners to interfere in our elections? As long as the candidate is a private citizen?

            1. You do not UC. I may not be “ok with campaign funds being used to pay foreigners to interfere in our elections” depending on what you mean by “interfere in our elections”. If you mean a candidate paying a foreign power to murder Americans who might vote against the candidate, the answer is no. If it’s a candidate paying a foreign opposition research firm to perform opposition research, I’d probably be “ok” with it, depending on who the foreign firm is, their reputation, etc. Although I could be talked out of the position. If, for example, the foreign opposition research firm was harassing Americans, or just routinely making shit up, I’d personally hold that against the candidate, and would expect them to part ways with the foreign firm.

              But what you definitely don’t UC, is that this wasn’t a discussion about feelings of whether I am “ok” with something. It was about whether abuse of office is something that a private person can commit, and the answer is, obviously, no. And as between the private person paying a foreign firm to kill Americans for political gain, and a public official using the American military apparatus to murder Americans for political gains, I’d say the latter is more troubling, given the scale, and the fact that in addition to being a murderer, the person has made the American public complicit.

        2. If Trump’s action were “intereference” in an election, then so was hers.

          Trump’s action wasn’t interference in an election. It’s the actions that Trump was trying to get Ukraine to do that would’ve been interference in the election. Candidates trying to convince people to vote for them, and not to vote for their opponents, is called campaigning, not interfering. Foreign countries trying to affect the outcome of an election is called interfering. And it’s the latter which is what Trump was trying to arrange.

          The only real difference is that Trump used public money, while she used donated money. Count me unimpressed with the distinction.

          The only difference between the mayor of your town being guilty of embezzlement and him doing nothing wrong is whether he uses public money to renovate his vacation home in the Caribbean or whether he uses his own money. If you’re unimpressed about the difference between legitimate and illegitimate, that’s on you.

          1. The only real difference is that Trump used public money, while HRC used Campaign Funds.

            Remind me again, isn’t there a law about expenditures of campaign funds?

            1. There are many laws about expenditures of campaign funds. Do you have a point? Paying for services rendered to a campaign with campaign funds is entirely legal.

            2. Indeed, ask co-conspirator #1.

          2. Your comparison with the mayor might illustrate something if Trump was accused of a crime such as embezzlement. Neither article of impeachment did that.

            So as it stands you haven’t shown Trump’s actions to be illegitimate or Hillary’s to be legitimate. Bored Lawyer is right to be unimpressed.

      3. Nobody found the dossier credible — not even the FBI agents who dishonestly used it as the basis for a FISA warrant to spy on the Trump campaign.

        1. They didn’t get a FISA warrant to surveil (not “spy on”) the Trump campaign. They got a FISA warrant for Carter Page, who no longer even worked for the Trump campaign.

      4. David — you make the mistake of assuming that just because the rumors about Ukraine’s chicanery are generally accepted as being nothing more than crackpot conspiracy theories, Trump and Rudy must also believe them to be untrue.

        Based on their words and deeds, the opposite appears much more likely – that they indeed believe the “crackpot” theories.

        Once you accept that, their actions look a lot less nefarious. Rather, Trump and Rudy look a lot more like old men who believe in conspiracy theories. Occam’s razor leads me to believe this is the true state of affairs.

        1. And, why should they not? They believed they were being spied on, everybody assured them they were paranoid, and… Oops, turned out they were being spied on!

          1. And this, Brett, is how people come to believe you’re a birther. “I’m not saying the birth certificate is phony. People are saying it. I just think they’re entitled to an answer.”

        2. The ‘Trump was a birther so he’s dumb enough to believe just about anything, which totally exonerates him’ argument?

          Do your damnedest while you have the chance, conservatives.

          See you on the long, severe, demographically predictable rebound.

        3. “Occam’s razor leads me to believe this is the true state of affairs.”

          This conclusion is no less disqualifying for the President than nefarious motives.

      5. Here’s one of the many things I don’t get in this entire sorry saga: Why do people think Trump was seeking information (or an investigation in name only) to use against Biden. Has anyone seen Trump? Does he need facts generated out of Ukraine to make an argument against Biden? Of course not. His campaign style oerates in a fact-free zone as it is. I don’t think this event amounts to anything because I don’t think Trump actually needed anything from Ukraine to make exactly the arguments he will in fact make if Biden is the candidate. The House fulminations implicitly assume that Trump is someone who campaigns with a set of references for all his assertions and that he needs representations from Ukraine before he can make allegations against Biden. This is ludicrous. Thus, the quid in this case is of virtually no value to him.

        1. I agree Trump will accuse Biden of corruption independent of what the Ukrainian government does. But, an announcement from the Ukrainian government that Biden is under investigation will help Trump persuade voters Biden is corrupt.

          1. What voters? Surely not those who could be influenced by such a thing, who are just as susceptible (it seems to me) to a “Ukraine should investigate….” plea. Only uninformed voters would have any response to either entreaty.

      6. Nice double standard you got there. Nowhere did Trump ask for the manufacture of anything beyond a lawful investigation.

        Claiming Hillary was a private citizen, while true, ignores her connections to the upper echelons of power involved as well as the connections of her agents and surrogates.

        1. Not to mention HRC violated campaign finance laws; paying foreigners to interfere in the US election. Let alone the Obama admin spying on candidate Trump’s campaign using foreign propaganda paid for by HRC to interfere in the US election.

          1. No.

            1) Hillary paid Fusion GPS, which is an American company, not a foreigner.
            2) Hillary paid Fusion GPS to gather information for her, not to “interfere in the US election.”
            3) This does not “violate campaign finance laws.”
            4) The Obama administration did not spy on candidate Trump’s campaign. Even accepting the pejorative “spy on” terminology, they “spied on” Carter Page, who didn’t work for candidate Trump’s campaign anymore.

  6. Is it an inane theory that President can not initiate or request an investigation of corruption – When the corruption involves the family of a political opponent.

    1. Well, it’s weird for the President of the United States to care much about another country investigating an American citizen for violating the other country’s laws in the first place. And since there’s nothing illegal (by either country’s laws) for Hunter Biden to serve on Burisma in the first place, it’s not obvious what the President wanted investigated. If the President had been asking Zelenskiy to investigate Burisma, that’s one thing, but the “transcript” the White House released talks specifically about “Biden’s son”. (As a reminder, Biden’s son is a constituent of President Trump.)

      Now, there’s nothing wrong with the President conducting an investigation into an American citizen necessarily–although I would be circumspect to do so where political opponents are concerned, if for no other reason than optics. The President doesn’t give a shit about that sort of thing, but nonetheless he did not direct his own administration to investigate Hunter Biden. That’s rather curious, don’t you think?

      Finally the issue here is not whether the President can “request an investigation of corruption”. It’s whether he can trade aid to a foreign country for the investigation–or more specifically an announcement of the investigation.

      1. “…nonetheless he did not direct his own administration to investigate Hunter Biden.”

        Unfortunately that is assuming facts not in evidence. I would note that you also ignore the fact that Trump told Zelensky that any information should go to AG Barr. That little fact makes it clear it is US gov’t investigation not campaign opposition research.

        I have no doubt that opposition research is occurring although that is through his campaign personnel not US gov’t personnel unlike the Obama admin that used FBI, DOJ, et.al. to surveil the Trump campaign and receive/transmit material from/to HRC campaign.

        1. “I would note that you also ignore the fact that Trump told Zelensky that any information should go to AG Barr.”

          That’s what the President told Zelensky. But in a subsequent statement, the Justice Department said:

          The president has not spoken with the attorney general about having Ukraine investigate anything relating to former Vice President Biden or his son,” DOJ spokeswoman Kerri Kupec said. “The president has not asked the attorney general to contact Ukraine — on this or any other matter. The attorney general has not communicated with Ukraine — on this or any other subject. Nor has the attorney general discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.”

          (At this point it should not come as much of a surprise to you that the President was not telling the truth in his phone call with Zelensky.)

          You may be right that the President has directed Rudy Giuliani to investigate Hunter Biden. Although the President denied doing so. From Bill O’Reilly’s show:

          “Well, you have to ask that to Rudy, but Rudy, I don’t, I don’t even know,” Trump replied. “I know he was going to go to Ukraine, and I think he canceled a trip. But, you know, Rudy has other clients other than me. I’m one person.”

          So, you didn’t direct him to go there on your behalf?” O’Reilly asked again.

          No, but you have to understand, Rudy is a great corruption fighter,” Trump said.

          No, I didn’t direct him, but he’s a warrior, Rudy’s a warrior. Rudy went, he possibly saw something. But you have to understand, Rudy, has other people that he represents … I think he’s done work in Ukraine for years, I mean that’s what I heard. I might have even read that someplace,” the president said.

  7. Get four constitutional lawyers in a room, get five opinions. Get four economists in the room, and get five opinions.

    I understand why Post is upset, but not why he is so bent that equally credentialed experts disagree.

    1. It’s the boy who cried wolf. Assume this issue is real and valid and impeachable. It’s the latest in a long line of impeachment reasons, investigations, and savage attacks designed to hurt a political opponent.

      Now this is sadly normal (Republicans kept Benghazi alive for years planning for Hillary’s run) but for Trump, many Americans were so jaded they stopped caring and just resisted yet another attack.

      When every night for years is Don Lemon staring gravely at the camera in disbelief at Trump and the end of the republic what do you expect if a real issue comes along.

      Democrats built this bed.

      1. Was Bengal kept alive solely by republicans or by the prior actions of Hillary? How do you do oversight when all communication is intentionally hidden? Seems if she had followed normal processes the whole thing would have been over in a few months instead of years of scouring related sources to piece together what happened indirectly.

    2. Actually in this case it seems that if you get four constitutional lawyers in a room you get one opinion. Throw in Dershowitz, who is not a constitutional lawyer, and you get a second one.

      1. That’s being pedantic, as the old saw is “get five lawyers…”
        And Dershowitz certainly is a constitutional lawyer. Whittington, however, who always weighs in on this issue, isn’t. He’s a political scientist. Not that makes his expertise less valid on the topic, but if you’re going to be pedantic about it, his opinion should be the one thrown out in your rulebook.

        As it is, I’d like to watch a debate between Blackman and Dershowitz on one side and Post and Somin on the other, because right there, you have 4 lawyers and depending on how you slice the questions, 5 opinions on the topic of impeachment, making art imitate live, or vice versa.

        1. And Dershowitz certainly is a constitutional lawyer.

          That’s not really a thing; it’s like saying that someone is a “European historian.” One of course can become an expert in aspects of European history, but there’s nobody who has studied), say, the military tactics used in the Hundred Years War, the economic policies of William Gladstone, the development of agriculture in Italy, and the 6th century migration patterns of the Slavic peoples. Those might all fall under the heading of “European history,” but they’re widely different.

          There are areas of the constitution in which Dershowitz is an expert — the first amendment, criminal procedure — but he is not an expert in the constitution as a whole. He has, as far as I can tell based on his cv, never published a single thing relating to impeachment.

      2. “who is not a constitutional lawyer”

        Are there ID cards issued? Who issues them?

        1. I do. I print them in my basement. Only cost $ 5 each. If you want your picture on it, $10. If you want Mickey Mouse on it, $100. (Gotta pay Disney royalties, don’t you know.)

  8. Bottom line – Any investigation of corruption of a political opponent is an impeachable offense, if it is a democrat. In this case the blantant corruption of a democrat family.
    But withholding $1b to get a prosecutor fired for investigating the corruption of a Democrat family is a valid use of government power.

  9. “Law professors—…—say a lot of ridiculous things from time to time”

    A kernel of wisdom here but alas.

  10. Senators who say “Let the people decide in the 2020 election!” while simultaneously giving the President the tools to do whatever he wants and whatever he can, short of outright criminality, to distort that very process.

    This is the same line of reasoning people used to condemn the revelations of DNC/Clinton collision, and it fails from the same fallacy. For investigating Biden to constitute ‘tampering with the election’, you must first stipulate that Biden voters wouldn’t vote for Biden if only they knew the truth about him.

    There’s no constitutional right to not having your corrupt actions brought to light during a campaign, and the best I can offer is, if you don’t want the scandal, don’t be corrupt in the first place.

    1. For investigating Biden to constitute ‘tampering with the election’, you must first stipulate that Biden voters wouldn’t vote for Biden if only they knew the truth about him.

      I am having a hard time imagining that the Burisma allegations/revelations would matter to ANY Biden voter or would change even one vote. I mean, you have to posit someone willing to vote for a lecherous old coot who is borderline senile, but then saying, “What! He fixed a prosecution in the Ukraine for his son! No way, I am voting for Trump (or some third party candidate)!”

      1. Familiarize yourself with the concept of “on the margin”. There’s always going to be some fraction of your supporters who are “on the margin”, just barely your supporters, and subject to be alienated from you by some additional increment of information.

        1. I understand the concept. It is just that Joe Biden is so off, and you have to swallow so much to vote for him, that I have a hard time believing that what Trump was trying to do would have made any difference. (For that matter, you could say the same thing about Trump.)

          1. So, you’re not near the margin, then. Somebody else is.

          2. Maybe the fractures in this election it might not matter, but I can see Bernie Bros deciding to stay home rather than vote for a “corrupt corporatism and oligarchy enabler”. Maybe not many but in the right location every vote or non-vote counts.

          3. Maybe the real problem is that you have a hard time imagining that there are human beings who aren’t as nakedly partisan as you? That some people actually give a shit about facts?

      2. I mean, you have to posit someone willing to vote for a lecherous old coot who is borderline senile,

        We’re talking about Biden voters, not Trump voters.

        “What! He fixed a prosecution in the Ukraine for his son! No way, I am voting for Trump (or some third party candidate)!”

        Or staying home.

  11. Blah, blah, “abuse of power” . .

    How many Trump-loathing academics consumed with hatred can dance on the head of a pin? All of them it seems.

    But they have zero credibility, especially until they address the Obama administration conducting a massive international investigation of Trump and propagating baseless conspiracy theories.

    1. It’s unconstitutional of Trump to force the masks to come off the faces of so many of our so-called intellectuals.

    2. blah blah I disagree with you blah blah. blah blah I cannot engage with your argument so I’ll just impugn your motives blah blah. blah blah Obama blah blah.

  12. Assuming the quid pro quo was impeachable also assumes the President had no valid reason for investigating the Bidens ties to Burisma. It is becoming more and more clear by the day that there is some “there” there regarding the Bidens.

    Your examples are non sequiturs.

    1. “Assuming the quid pro quo was impeachable also assumes the President had no valid reason for investigating the Bidens ties to Burisma.”

      You do not have to assume “the President had no valid reason for investigating the Bidens[‘] ties to Burisma” to believe the President’s conduct was impeachable. But that’s neither here nor there. The President has not been accused of “investigating the Bidens[‘] ties to Burisma”. If he had valid reasons for investigating the Bidens’ ties to Burisma, he should have investigated the Bidens’ ties to Burisma. But he didn’t.

      1. You’re assuming that the Trump admin has not investigated the Bidens’ ties to Burisma. There’s been evidence to the contrary, so it’s an odd claim to make. It naively assumes that everything the DOJ and Trump admin do is visible to the public eye.

        And you’re narrowly interpreting what I said. Clearly, Ukraine could assist in providing information and assistance.

        1. “There’s been evidence to the contrary, so it’s an odd claim to make.”

          My claim is based on the DOJ saying that the President did not ask the DOJ to investigate Joe or Hunter Biden.

          1. The DOJ spokesperson you quoted above said it; Barr also personally said it.

  13. Professor Post, why not directly take up the challenge Professor Dershowitz has issued? Debate him publicly.

    It is not clear to me that you are accurately characterizing what Professor Dershowitz actually said.

  14. Uh oh, you went and upset the fascists here. Heaven forbid Dear Leader be held accountable and his bs legal team be called out for being completely partisan hacks.

    1. The fascists are the ones engaging in politically motivated violence, threatening (and trying) to assassinate political rivals, and promising to imprison their political opponents.

  15. I think that Professor Dershowitz is I’m using a very common and long-standing logically fallacy so adroitly that it might be better to call what he is doing an exploit, taking advantages of flaws in ordinary human thinking.

    It’s a version of the Fallacy of the Excluded Middle. First, claim that things can only be either black or white. Second, claim that if it’s not absolutely pitch black, it’s not black. Since most of the world we experience has some shade of gray or other, this is effectly a claim that black doesn’t exist. But each step along the way can appear quite reasonable.

    The problem is human beings can be very vulnerable to this fallacy. We have a hard time thinking of shades of gray. Particularly when we get riled up, our think naturally tends towards black and white. Then all that has to be manipulated is which side gets the benefit of the doubt. Since things are almost inevitably doubtful to some degree, that’s the side that will benefit.

  16. Prof. Post, since you and Keith and others are speculating about Trump’s motives – what if his motive was pure? What if he was on the verge of sending monetary aid, and was sincerely concerned about corruption, in particular, the corruption so blatantly clear concerning Joe Biden?

    1. I’m willing to let the President prove his purity, under oath. Seems like a simple enough thing to prove. He’d just get under oath and say “I was very and only concerned with corruption by Joe Biden.” And then answer cross-examination.

      1. In our system of justice, one needn’t prove their purity, or innocence. It is up to the accuser to make a case. Speculating about the accused’s motives without any substantiation is not sufficient.

        Do you have any direct evidence of Trump’s motives in this case? No, you don’t. Because there is none. There is only hearsay and speculation from his accusers and detractors.

        1. “There is only hearsay and speculation from his accusers and detractors.”

          I don’t know what you mean by “direct evidence”. We have the “transcript”. We have, as you said, “hearsay” from people around the President. We have Rudy Giuliani’s public statements. If none of that constitutes any “substantiation” then you’ve created a wonderful bubble of safety for any malfeasance. The only evidence that would prove the President’s guilt is precisely the evidence you say he doesn’t have to provide. You can’t force the President to testify about his motives until you have testimony from the President about his motives.

          Remember that John Dean’s testimony about President Nixon’s motives was hearsay, too.

        2. Well, there are also the people with first-hand knowledge of Trump’s motives, who the President won’t allow to testify and who the Senate has chosen not to subpoena.

  17. If this is an “abuse of power,” then the Democrats promising free stuff to their freeloading constituency in exchange for votes is as well.

  18. 4 of the house managers voted against the Ukraine aid last year. Then they stood on the Senate floor and argued that delaying said aid for a month was debilitating to our national security.

    Sounds like they should be impeached. These traitors must have been voting for personal political interests, selling out the country.

  19. The only honest way to apply the Constitution standard for impeachment (“Treason, Bribery, or other high Crimes and Misdemeanors”) as it was and was not written is to require Congress to prove the POTUS violated the law.

    The legal term of art “high crimes and misdemeanors” has a centuries long English usage which includes crimes and maladministration (abuses of lawful power).

    However, the Constitution further restricts then term’s meaning by preceding it with the crimes treason and bribery and the term “other” to mean violations of the law on par with treason and bribery. Ejusdem generis.

    Any doubt concerning the inclusion of “maladministration” in that standard is dispelled by the fact the Convention expressly considered and rejected of this term, properly fearing the term was meaningless and allowed Congress the set POTUS terms.

    The only possible ambiguity in the standard is whether it includes all violations of law (including violations of the Constitution) or just serious crimes like treason and bribery. To address the author’s parade of intolerable scenarios, let’s assume the broader definition.

    “The American people, Prof. Dershowitz is telling us, cannot remove from office a president who orders the IRS and other federal agencies to harass those on the list of his political opponents.”

    At minimum, this is a violation of equal protection of the law and likely multiple criminal statutes depending on the details. I suspect U.S. Attorney Durham will provide us with a tutorial on this subject over the next few months.

    “Or a president who withholds federal highway funds earmarked for State X until the State agrees to disable some fraction of the voting machines in its big cities.”

    Likely infringement of the right to vote.

    “The president tells the leader of Y that (quid) he will veto any NATO action to counter Y’s upcoming invasion of Z, as long as Y invests $100 million in a disinformation plan targeting the president’s opponent in the upcoming election.”

    Bribery.

    “A president who brazenly granted pardons to minions who engaged in criminal activity to advance the president’s own goals should not be tolerated until election day.”

    Conspiracy to commit the unnamed criminal activity.

    “A president who categorically refused to cooperate in any way with congressional investigations into misconduct in the executive branch need not be tolerated for another four years.”

    Assuming the POTUS is not exercising his lawful attorney/client and executive privileges as Trump did with the Schiff and Nadler, the POTUS would be violating a subpoena.

    “A president who sweepingly refused to enforce laws with which he disagreed under the cloak of prosecutorial discretion need not be left in the position of chief executive.”

    Violation of the Take Care Clause.

    “A president who rashly used American military power to assassinate American citizens and foreign leaders abroad or invited cataclysmic war need not be left as commander in chief.”

    So long as Congress has declared war or the POTUS is defending the nation against enemies warring on the US, the above is a legal exercise of his commander in chief power and by definition unimpeachable.

    “A president who stubbornly refused to use military force to protect American citizens and territory from foreign military aggression need not be left to serve out his term.”

    Nothing in the Constitution requires the POTUS to exercise this or any other power. Many POTUSes have neglected to properly defend the people, but no Congress ever attempted to impeach them.

    1. “At minimum, this is a violation of equal protection of the law…”

      Well then the exception makes the rule. If harassing political opponents is a violation of the law, the President is accused of harassing a political opponent. (Also, “equal protection of the law” comes from the 14A, which applies to the states.)

      “Likely infringement of the right to vote.”

      There is no right to receive highway funds. If you’re saying that it would be against the law for the state to comply with the request, maybe under the VRA (although it’s been gutted). But probably not. See Shelby County v. Holder.

      “Bribery.”

      The point is that under Dershowitz’s use, the things the President is accused of doing in the hypo are strictly-speaking lawful acts.

      “Conspiracy to commit the unnamed criminal activity.”

      One of the elements of conspiracy is you have to conspire before the act is committed. If all the President was doing is pardoning people after the fact, there’s no technical conspiracy.

      “…the above is a legal exercise of his commander in chief power and by definition unimpeachable.”

      Why is this “by definition unimpeachable”?

  20. Offering something of value in return for violating official duty is bribery. Trump offering Ukraine aid in return for investigating Hunter Biden wasn’t bribery, because Zelensky had no official duty to ignore and not investigate the very sleazy appearance of Hunter getting paid to secure influence with the Obama administration.

    In contrast, manny if the examples given by Professor Post would indeed be bribery. In particular, (1) harassment is contrary to the official duties of executive branch officials, so conditioning future salary on violating that duty is bribery. (2) a president who withholds federal highway funds earmarked for State X until the State agrees to disable some fraction of the voting machines in its big cities is again bribery, because states have a legal duty to not disenfranchise lawful voters by destroying voting machines. (3) The president tells the leader of Y that he will veto any NATO action to counter Y’s upcoming invasion of Z, as long as Y invests $100 million in a disinformation plan targeting the president’s opponent in the upcoming election; that’s is again bribery because POTUS is offering a thing of value (veto) in return for unlawful campaign meddling that violates the legal duties of the leader of Y. So all of these examples would be impeachable bribery per Dershowitz, as best I can tell.

    1. Offering something of value in return for violating official duty is bribery. Trump offering Ukraine aid in return for investigating Hunter Biden wasn’t bribery, because Zelensky had no official duty to ignore and not investigate the very sleazy appearance of Hunter getting paid to secure influence with the Obama administration.

      I don’t know where you’re getting your idiosyncratic definition of bribery, but it’s wrong.

      If my neighbor is playing very loud music at 3 am, or keeping a bunch of old broken appliances on the front lawn, or running a brothel out of his house, and I pay the cops or code enforcement people to come over to his house to give him a citation or arrest him or whatever, that would be bribery regardless of the fact that the cops not only had the legal right, but a duty, to put a stop to those things.

  21. If this is impeachable

    “A president who sweepingly refused to enforce laws with which he disagreed under the cloak of prosecutorial discretion need not be left in the position of chief executive.”

    Then of course everyone who thinks Trump should be impeached supported the impeachment of Obama over his executive order concerning so-called “dreamers”, right?

  22. A Dershowitz-related question I’m hoping someone can answer. It seems to me that Dershowitz made some simple errors that I’ve not yet seen mentioned. To quote, “[Justice Curtis] then went on to a second provision. ‘The trial of all crimes, except in cases of impeachment, shall be by jury’ [Article III, Section 2]. This demonstrated, according to Curtis, that impeachment requires a crime.”
    Isn’t Justice Curtis (and Dershowitz, since he accepts Curtis’s reasoning) simply getting his logic wrong? The sentence in the Constitution leads to the conclusion that there is overlap between the two categories “cases with crimes” and “impeachment cases”, not that the latter category is fully inside of the former.
    Right? Can I get a law professor to help me out here? [And yes, I did post this in the comments of another Dershowitz posting, but am hoping for more thoughts.]

  23. Incidentally, Lincoln letting soldiers from the Army of the Potomac return home to vote in no way insured more votes for Lincoln and the Republicans. Lincoln’s opponent in 1864 was George McClellan, the ex-commander of the Army of the Potomac, who was extremely popular with those soldiers. I’m not sure Prof. Dershowitz’s historical analysis is much better than his constitutional analysis.

  24. ** Curtis advanced a version of the Dershowitz theory—which should perhaps be called the Dershowitz-Curtis theory, in honor of the only two prominent legal scholars who have adopted it

    Worth noting that both adopted it as advocates, not as scholars.

  25. It seems unlikely that Dershowitz would endorse the paraphrased statements which Post attacks.

  26. I know this is a legal blog. I’m not a lawyer and my comments won’t attempt to follow legal precedent or practice. My comments are based strictly on common sense. Given that there is little case law or precedent to guide this area, common sense seems appropriate to me. Also note that for this purpose I am addressing hypothetical conditions and not referring to the actual events of the recent impeachment proceedings. My purpose in writing this is to show that one cannot arbitrarily state that a crime has to be committed to be convicted of impeachment.

    This is to address those who assert that impeachment should only apply to crimes. That is, that to be convicted of impeachment, the office holder must have committed a crime. That otherwise, it is the voter’s will that should be supreme and the office-holder is otherwise only subject to the next vote.

    I believe this assertion is easily impeached (yes, intended). In just a few moments of consideration I was able to think up several conditions that would warrant impeachment (and conviction) that are not crimes. Further, I think any reasonable person would not want an office holder to continue in office should any of these conditions be true.

    In particular, if these conditions are not identified or are hidden from the electorate and only become apparent after the election, then these are certainly impeachable conditions. I believe they are impeachable anyway, but, for sure, if the electorate did not or could not have known about these, then it is inappropriate to wait for the next election.

    Debauchery. I’m talking serious, egregious activities. Debauchery is not illegal, but if there were wild orgies in the white house and sex parties in the rose garden, would we really want that person to continue to represent our country, our people and our values? Yes, it is unlikely, it is wildly hypothetical. Nonetheless, if it happened, we would not want to wait for the next election to evict this person just because, technically, it is not illegal.

    Conscious disregard or rebuke of responsibilities of the office. Once in office, if the office holder didn’t come to work, didn’t do the work that was expected and ignored their responsibilities, would we want them to remain in office until the next election? Not showing up for work (or not doing work if there) is not illegal, but, again, not something that should be allowed or ignored just because it is not a crime.

    Severe physical, mental or emotional impairment or affliction. Yes, I know there’s the 25th Amendment in the case of the president (but all of these apply to any office), but if for some reason that was not used or did not apply, would we want the situation to persist just because it isn’t a crime?

    Disrespecting the office. If the office holder committed acts that were offensive to the electorate and to the office, even though not crimes, they should be impeached. Examples that come to mind are recent reports of judges who had sex in their offices and chambers. Other examples could be someone who belittles other people, treats people with contempt, insults people. In other words, someone who does not deserve to represent the people in that office simply because, if they were on a kindergarten playground and demonstrating those activities, you would want to immediately stop it – and you certainly wouldn’t want your kids playing with that person.

    All of the above examples apply to any office. This final example is specific to the presidency.

    Indications of tendencies to monarchy or tyranny. If a president started acting in ways that indicated they were using the office to establish a monarchy or dictatorship, I think we would all agree that the person should be removed from office extemporaneously.

    Again, none of these are crimes. That is, there is no specific federal law that applies to any of these situations. I’m sure with some creative thought, smarter people could identify even more examples where we would want impeachment to apply.

    The point is that we cannot arbitrarily deny the applicability of impeachment solely because there is not already a law against the activity.

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