The Volokh Conspiracy
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Acquit if You Must, But Don't Endorse the Dershowitz Argument
The Senate impeachment trial of President Donald Trump appears to be coming to its inevitable conclusion at a fairly rapid pace. The entire impeachment process has been distressing to observe, but it is time to start thinking about the fallout and how to minimize the damage to the constitutional system.
Given the legal strategy that the president's defense team has adopted, there is a particular risk that an acquittal will be framed as a repudiation of the traditional understanding of the scope of impeachable offenses and an endorsement of some version of the constitutional argument offered by Professor Alan Dershowitz. The Dershowitz argument would gut the congressional impeachment power and embolden future presidents to further abuse the powers of their office.
All high profile impeachments have legacies. To this day, we continue to argue over the lessons of the impeachments of Andrew Johnson and Bill Clinton, and apparently even over the resignation of Richard Nixon. How we understand those events has consequences for how we think the constitutional system should work today. The constitutional implications of an impeachment do not turn solely on whether an officer was acquitted or convicted. They turn also on what we understand the impeachment to mean. I argued similarly after the impeachment of Bill Clinton.
The Republican senators who will be voting to acquit President Trump of the charges that have been leveled against him by the House have a responsibility not to do lasting damage to the system of constitutional checks and balances in the process. The senators will have an opportunity to go on record to explain their votes to convict or acquit, and the senators should use that opportunity to say something about what kind of precedent they are setting.
In particular, Republican senators should resist the temptation to seize on Dershowitz's argument as providing the rationale for rejecting these particular charges against this particular president. Rather than embracing a general rule that presidents cannot be constitutionally impeached for abuse of power, senators should instead try to limit their judgment to the unique circumstances of this particular case.
It is not unreasonable to conclude that the charges leveled against the president are not sufficiently grave to justify his immediate removal and that the president can be safely left in office until the voters have a chance to express their judgment on his performance in November. The type of charges brought by the House might well be within the scope of the impeachment power, but senators must still exercise an independent judgment to determine whether the conduct in question is serious enough and dangerous enough to justify the immediate removal of a president. It is possible for a constitutionally conscientious senator to vote to acquit, but in casting such a vote senators should take care not to undermine the potency of the impeachment power entrusted to Congress by the constitutional framers.
Senators can put this matter in the hands of the voters, but they need not endorse a flawed understanding of the Constitution in order to do so. As they draft their statements explaining their votes, they should explicitly reject the constitutional argument put forward by the president's defense team.
I have elaborated on this argument in an op-ed now available at the Washington Post. It can be found here.
