T. Belman. The author of this article is not the former Prime Minister of Canada but I do believe his understandoing of “high crimes and misdemeanors” is correct. It also dosn’t mean that Dershoweitz’s argument is wrong. The conduct may not have to be an indictable crime but they must be equally grave acts or conduct.
Serious constitutional scholars don’t accept his defense of the president in the Senate impeachment trial.
Alan Dershowitz,Mike Segar/Reuters
Forty years ago, when I was a student at Harvard Law School, I enrolled in Alan Dershowitz’s class on professional responsibility. “Everyone is entitled to a lawyer,” he told us. “But not everyone is entitled to me.”
Any lawyer in private practice can generally say no when asked to take on a case. So why did Mr. Dershowitz say yes to Donald Trump and agree to represent him in his Senate impeachment trial?
Mr. Dershowitz, an ardent civil libertarian, has been a criminal defense lawyer throughout his long and distinguished career. Mr. Trump, on the other hand, is not exactly a poster child for the A.C.L.U.: Remember his advice to police officers dealing with criminal suspects? “Please don’t be too nice.”
Two months before President Bill Clinton’s impeachment hearings began in 1998, Larry King asked Mr. Dershowitz whether he agrees that “some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law.”
“I do,” he answered. If those offenses “subvert the very essence of democracy.”
In the same interview, Mr. Dershowitz also said: “It certainly doesn’t have to be a crime 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. We look at their acts of state. We look at how they conduct the foreign policy. We look at whether they try to subvert the Constitution.”
But on Sunday, Mr. Dershowitz was acting as one of Mr. Trump’s lawyers when he said to George Stephanopoulos that abusive or obstructive conduct is not impeachable and that an “actual crime” is required. And although the evidence demonstrates that Mr. Trump has committed crimes, Mr. Dershowitz asserted that, unless those crimes are explicitly stated in articles of impeachment, they cannot lead to Mr. Trump’s removal from office.
Mr. Dershowitz said that he was defending Mr. Trump to protect the Constitution, but serious constitutional scholars didn’t buy his argument. Another of my former professors, the constitutional law expert Laurence H. Tribe, responded with an op-ed essay in The Washington Post. “The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject,” he wrote. “There is no evidence that the phrase ‘high crimes and misdemeanors’ was understood in the 1780s to mean indictable crimes.”
Mr. Tribe likewise debunked Mr. Dershowitz’s argument that the president could not be impeached for “abuse of power,” noting, “No serious constitutional scholar has ever agreed with it.” Among those scholars is the Republicans’ designated constitutional law expert, Jonathan Turley. He testified before the House Judiciary Committee that impeachment could result from conduct that was not technically a criminal act.
Mr. Dershowitz is an expert on civil liberties and criminal law and procedure, not constitutional law generally. Facing widespread criticism and trying to reconcile his 1998 statements with his new position, he now says that Congress doesn’t need a “technical crime” to impeach, but there must be “criminal-like” conduct, or conduct “akin to treason and bribery.” To the extent his earlier statement “suggested the opposite,” he retracts it.
Such sophistry might be rhetorically pleasing to Mr. Dershowitz, but his 1998 view is still the correct one. And the articles of impeachment against the president plainly satisfy Mr. Dershowitz’s newest standard too.
In his 1995 introduction to a new printing of Clarence Darrow’s autobiography, “The Story of My Life,” Mr. Dershowitz offered this advice to young lawyers: “The lawyer may not become part of the corruption in order to fight for justice.”
I’m not suggesting that Mr. Dershowitz is corrupt. But he doesn’t seem to be protecting the Constitution or fighting for anything that looks like justice.
Steven J. Harper (@StevenJHarper1) is a lawyer, an adjunct professor at Northwestern University Law School and the author of “Crossing Hoffa: A Teamster’s Story” and “The Lawyer Bubble: A Profession in Crisis.”
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.
Whatever specific acts are “high crimes and misdemeanors,” they have to consist of behavior that inflicted serious harm on the United States and its people. The Democrats have failed to demonstrate any harm whatsoever to the United States from Trump’s behavior. The arms shipments to the Ukrainian troops serving in the front lines of the Ukraine-Russia war were never interrupted. America’s allinace with Ukraine continues without interruption or creating serious strains between the two countries. But in any case, Ukraine’s national security is not the same as the national security of the United States. Even if Trump took actions that endangered Ukraine (he did not do so), they would not necessarily endangered the United States. The U.S. has no formal treaty of alliance with Ukraine. They are not a member of NATO.
Did Trump break the law? Not if the deadline set by Congress for the new arms shipments to be sent was met. And internal Defense Department memos released by the DoD at Congress’s request suggest that the deadline was met (September 24, I think). But even if Trump inadvertantly breached a minor clause in a non-criminal law, by missing a deadline set by Congress for a few days, this is not a crime. (Many people don’t understand that “illegal” and “criminal” don’t have the same meaning in American law).
Even some minor crimes such as those committed by President Clinton, are not necessarily impeachable offenses if they are not normally punished with jail time, are usually punished with civil rather than criminal penalties, and did not inflict major damage on the country. However, Trump’s actions cited in the impeachment document were not crimes at all and did no damage to the country, making his impeachment completely without a rational, moral basis. It is motivated solely by a mixture of partisan politics and irrational feelings of personal hatred for the President.
@ Edgar G.: Sounds reasonable to me as well. The framers of the Constition phrased it in broad generalities, and did not provide a wealth of detail in their instructions to the government. They left interpretation of their very general and brief directions to the courts, and in the case of impeachment, to the Congress. They wisely left it to the Congress to decide what a “high crime and misdemeanor” was. It is after all hard to know for sure whether some kinds of misconduct are serious enough to remove a President from office until a President actually commits that misconduct, and its ramifications become clear.
@ Bear Klein: I agree with Bear about this. The editors of the New York Times are momzerim, and so is this Steven Harpur dude. The Times does not provide evidence that he is a peer-reviewed scholar in constituional law. He is only an adjunct professor of law at a law school.
I have been struggling to come up with a definition of what a “high crime and misdemeanor” is but without much success. I think that the President or other high official who is impeached must have behaved in a way that harms the American people and/or makes them a threat to the American people if they remain in office. But this must be proven beyond reasonable doubt by hard facts, not partisan emotions or prejudices. The problem is that nearly all U.S. congressman and Senators are full of partisan feelings and prejudices. Yet they are the only people with sufficient power to remove a President–except maybe the Supreme Court, which is on the whole even more full of prejudices than the Congress.
One possible test of whether someone has committed an impeachable offense may be whether even the President’s own former supporters in Congress, those who are members of his own political party and/or voted in favor of most of his policies, become convinced by an accumulation of evidence that the President should not remain in office. That is what happened to Nixon, and why he resigned. On the other hand Andrew Johnson and Bill Clinton’s supporters were not convinced that they had committed “high crimes and misdemeanors,” and some congressmen even in the opposition party were not convinced of this. Nine Republican senators voted to acquit Andrew Johnson. Ten Republican Senators voted to acquit Bill Clinton on one charge, and five on the other charge. They were honest men who were opposed to these President’s policies (both Presidents were Southerners and Democrats), but they were fair, and judged by their conscience, not party affiliation.
I believe that most of the present Republican Senators, including MIch McConnell, are also honest and patriotic men. Very few if any seem likely to vote to remove Trump from office, because the evidence of grave misconduct is not just not there.
@ Edgar G.: I am repeating this for emphasis… “Israel has been leveraged by countless administrations about the loans, aid or loan guarantees it receives from the USA to leverage its behavior.”… during the Gaza war, Obama, on the pretext [that Ben-Gurion airport was vulnerable to Hamas missiles] stopped the Army’s automatically supply to Israel which had been functioning satisfactorily for years. Every Islamic enemy of Israel got the message that Israel cannot rely on the US.
@ Adam Dalgliesh:
I believe, from something I read years ago…. maybe around the Nixon situation, That the misdemeanors, must, in themselves be equivalent in their nature to a high crime, even if, for reasons not thought of when the Constitution was written, in their nature. .The Founders had the foresight t know that as time and civilisation advanced, new situations would appear, and the “”misdemeanors” were to take care of them.,
Sounds logical to me.
Richard Nixon was impeached and resigned before the Senate removed him from office. Nixon was involved in a burglary (a high crime) for political purposes. There was overwhelming evidence and both the GOP and Dems were on board in removing him from office.
The constitution reads,
Serious offenses needed to impeach. Something that is overwhelming and bipartisan in a nature. Not something partisan in nature and completing underwhelming. The examples given are Treason and Bribery……….
It is not a crime to ask another countries’ President to conduct an investigation on corruption just because part of the corruption may include a past US official who is running for President. The US and Ukraine have a treaty that calls for cooperation in investigations. This treaty was signed by Bill Clinton.
The Dems no sooner got done striking out with the Russian Collusion theory with Trump do to a complete lack of evidence after a two year investigation by the Special Prosecutor with many FBI agents investigating. When they struck out on this they became desperate to keep Trump from winning re-election so they grabbed the closest possible controversy with a whistle-blower and Adam Schiff’s staff racing to leak news of what has turned out to be Trump’s latest non-crime. Schiff has said, he is worried Trump will get re-elected. Schiff has repeatedly lied about what Trump, said in a conversation with Ukraine President in order to make it sound evil and criminal. If Schiff had been under oath when he made his statements about Trump’s conversation he could have been tried for perjury.
To reformulate my thesis concerning what is a “high crime and misdemeanor,” I think this phrase means the either “nonfeasance” or “malfeasance” in office. Malfeasance in office is behavior that makes the office-holder, such as a president or a judge, a serious threat to the safety and security of the American nation, or the civil and human rights of American citizens, such as the rights to “life , liberty and the pursuit of happiness,” or to the rule of law,the U.S. constitution and constitutional system of government. For example, several judges have been impeached and removed from office for being visibly drunk while presiding at trials. Why was this a “high crime and misdemeanor?” because it endangered the right of citizens in his court to receive a fair trial. How could a drunk judge ensure that a the trial of a citizen in his courtroom would be fair and follow the “due process of law?”
As I see it, “high crimes and misdemeanors” mean behavior that that makes the impeached individual a serious threat to the American people and the American nation as a whole. But it must be all of this from the point of view of a fair-minded, impartial individual, who is not motivated by partisan political passions or other prejudices against the defendant. Disagreement with the President’s policies, even justified disagreement, is not enough. There must be behavior that an objective observer would consider as beyond reasonable doubt a threat to the nation. The kind of individual who would be an ideal pick for a jury. In practice, there are very few Congressman who fit this bill where a President in concerned. They are not really a competent to be “triers of the case.”
Nixon, I think deserved to be impeached, because even the majorityRepublican Senators who had always supported his policies eventually reached the conclusion, after a careful review of his behavior by both House and Senate committees, that it was unacceptable for a President to behave as he did. The Republicans in the Senate were not prejudiced against Nixon, and they concluded that he was guilty of obstruction of justice reluctantly, after a careful and prolonged examination of the facts of the case, the tapes, etc. Even the Democrats were not eager to impeach Nixon until the damaging facts gradually trickled out and amounted to a damaging case against him. But I am glad he resigned and was not impeached. Much better for the nation.
I think that of the three cases of actual impeachments against a President, the one against Trump is absurd and obviously motivated by a mixture of partisan political passions and sheer personal prejudices. Clinton was guilty of serious personal misconduct in office , but it was not a serious threat to the nation as a whole. The Democratic proposal that he be subject to a unanimous vote of censure by both Houses of Congress, was an appropiate one, and I never understood why the Republican leadership didn’t accept it. The civil fines imposed on Clinton by the court (two fines adding up to $50,000, plus five years’ suspension of his lawyer’s license) was also appropriate. This was the customary punishment for lying at a pre-trial hearing in a civil, not criminal case.
The impeachment of Andrew Johnson was a difficult middle case. Johnson had openly violated the Tenure of Office act and had refused to enforce civil rights legislation passed by Congress. He had also made racist statements about black people, and had endorced white supremacy, at a time when this was not in the national interest. However, the main thrust of the impeachment charges was about his violation of the Tenure of Office act, which was of doubtful constitutionality. There was a great deal of partisan political passion and regional prejudice(Johnson was a Southerner) behind the charges. The nine Republican Senators who voted to acquit him, which led to his acquital by one vote, probably did the right thing.
@ Bear Klein: All valid points. These would be equally valid objections to two of the charges against Netanyahu.
Asking for cooperation in a mutually beneficial manner is NOT illegal. Leveraging aid to elicit desired behavior with a foreign country is done by all administrations. The US does this to Israel repeatedly. So the Dems are trying to claim Trump’s behavior broke the Law (false). It also did not undermine democracy. So Trump will NOT be kicked out of office. The Dem game,”Impeachment of Donald Trump”, will end in about a week or two with his acquittal, if the case is not dismissed first. If this were a criminal trial a motion to dismiss would have been entered and the judge likely would have dismissed it.
Ted my comment disappeared?
The charges by the Dems on Trump are not crimes.
The conduct of Trump may be perceived by some as tacky or not polite but it is NOT illegal. The Dems have been looking for a way to overturn the 2016 election from before Trump even took office. Russia Collusion turned out to be a big nothing so they had to find something quick before Trump got reelected.
Trumps crime or non-crime actually is that he won the election is brash and spits the success of the USA economy spurred on by his tax and regulatory cuts
in the Dems faces. They are scared to death that he will win re-election.
So Nancy Pelosi boxed into a corner by the Trump haters in the House (Nadler, Schiff, AOC……etc) commences with Impeachment hearings in-spite of knowing that based on what evidence they have (or actually do not) on Trump, the majority GOP Senate will never convict Trump on such unconvincing evidence. Pelosi knew that for an impeachment to get rid of Trump it needed to bi-partisan and overwhelming. The Senate needs to vote by a 2/3rds majority in the affirmative to convict. If the GOP does not dismiss the charges before a verdict is rendered the Dems will likely get no more than their 47 votes in the Senate to convict Trump.
The charges have no bi-partisan support and are underwhelming. What Trump did or is alleged to have done does subvert democracy. In fact if Trump what the Dems allege he did holding up Ukraine aid to leverage a corruption investigation, that is how US presidents always act.
Israel has been leveraged by countless administrations about the loans, aid or loan guarantees it receives from the USA to leverage its behavior.
Joe Biden even bragged that he got the Ukraine to stop investigating Burimsa (the firm that employed his son Hunter) by threatening one billion dollars in aid. Burisma was being investigated for corruption. So Trump might have leveraged an investigation into occurring by holding up aid.
No wonder the Dems do not like this, their number one candidate for President is potentially being exposed for corruption involving the Ukraine.