One of the individuals who is set to serve on President Donald Trump’s team of legal counsel for his Senate impeachment trial appears to have contradictory views when it comes to what reasons a president can be removed from office over.
Alan Dershowitz, emeritus professor at Harvard Law School, joined Trump’s legal team last week. In statements he has made over the weekend, Dershowitz has claimed that the lack of an actual crime renders attempts at impeaching Trump inappropriate.
The House voted to impeach Trump in December for two reasons: abuse of his power in attempting to influence a foreign nation to interfere in the 2020 presidential election, as well as obstruction of Congress within that investigation.
“Abuse of power, even if proved, is not an impeachable offense. That’s exactly what the framers rejected,” Dershowitz said in an interview over the weekend, according to reporting from HuffPost.
He went on to explain that only treason, bribery, or other actual crimes could render a president impeachable, in his mind. Indeed, the U.S. Constitution officially states that a president can only be impeached, and subsequently removed from office, for “treason, bribery, or other high crimes and misdemeanors.”
But most scholars don’t view the Constitution’s words as literal. Among them, Dershowitz himself has said as much. In 1998, when President Bill Clinton was facing impeachment, Dershowitz subscribed to the theory that an actual crime wasn’t a requisite for his removal from office.
Impeachment “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,” Dershowitz said to CNN host Larry King two decades ago.
— andrew kaczynski🤔 (@KFILE) January 20, 2020
Another (current) Harvard Law School professor, Laurence Tribe, wrote an op-ed in the Washington Post chastising Dershowitz’s current views.
“The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject, but it staggers on like a vengeful zombie,” Tribe said in his missive. “In fact, there is no evidence that the phrase ‘high Crimes and Misdemeanors’ was understood in the 1780s to mean indictable crimes.”
Dershowitz tried to defend himself, saying his past statements aren’t at odds with his current views:
There is no inconsistency between what I said during the Clinton impeachment and what I am saying now. I said then that there doesn’t have to be a “technical“ crime. I have said now there must be “criminal-like” conduct, or conduct “akin to treason and bribery.”
— Alan Dershowitz (@AlanDersh) January 20, 2020
But regardless of what Dershowitz says, Tribe is absolutely right in his statement about impeachment: the signers of the Constitution understood “high Crimes and Misdemeanors” to not be a literal statement. Rather, it was a phrase that they interpreted and adopted from English common law.
Britain had used the term as early as the 14th century, TIME magazine reported, and was used frequently to remove individuals from the government for a number of offenses — including corruption, abuses of power, and incompetence to serve.
When the debate over ratifying the Constitution was taking place, the founders couldn’t agree on what terms a president should be removed prematurely from office. Treason and bribery made sense, but there was a consensus that other reasons should justify removal, too. “Malpractice” was a term that was thrown out as a possibility, but ultimately the founders agreed on “high crimes and misdemeanors.”
Lest there be any more confusion over what they meant by the term, Alexander Hamilton offered clarification in Federalist No. 65:
“The subjects of [impeachment] are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” he wrote.
The current administration has peddled the idea that an actual crime is needed for Congress to actually impeach Trump. But abuse of his office is a justifiable reason enough, and even taking Dershowitz’s updated argument into account, plenty of people could view what Trump did with regards to Ukraine as “criminal-like” conduct.
The Senate still isn’t likely to indict the president from office, but if they choose to vote against doing so, it shouldn’t be based on this incorrect interpretation of the Constitution.
Featured image credit: U.S. Embassy Jerusalem/Flickr