Alan Dershowitz, a non-partisan legal scholar, has brilliantly laid out the case against the impeachment of Donald Trump as per the video clip above (roughly about an hour's worth of gold), explaining that the proper criteria for impeachment is a matter of what "is" (what the Framers intended - particularly that if a technical crime has not been explicitly stated in the Constitution as grounds for impeachment, then impeachment has to be based on a crime in relation to the violation of statutory law which has not been proven by the House Impeachment managers thus far) and not what it "ought" to be (that "Abuse of power" and "Obstruction of Congress" constitute valid grounds for impeachment.)
Furthermore, even if we threw this argument out the window with regards to the constitutional interpretation of the word "crime", Dershowitz argues that the Framers would still have rejected the charges of "Abuse of power" and "Obstruction of Congress" as such grounds are far too vague and open-ended and would cede a great deal of discretionary power to the Senate and upset the balance of powers between the various organs of the State.
Dershowitz does an amazing job digging up historically relevant legal material in citing Justice Benjamin Robbins Curtis, chief counsel for the Impeachment of President Andrew Johnson in 1868, and Constitutional Law professor Josh Blackman among others at great length, and goes on to obliterate both charges.
Irrespective of how you feel about the President, there's no denying that Dershowitz presented a solid legal argument.
ON ABUSE OF POWER:
As already argued above, "Abuse of power" is a dangerously vague criterion for grounds of impeachment that would undoubtedly open the floodgates to tons of impeachment proceedings against future presidents. Dershowitz expands on this by reading from a list of presidents who could be accused of having abused their power. He cites George Washington, John Adams, Thomas Jefferson, and even Barack Obama from this list.
Dershowitz correctly makes the case that the charge of "Abuse of power" is political in nature, stating that it is "campaign rhetoric" which "should be leveled against political opponents" and that the public should decide on such matters at the ballot box. In a nutshell, it is not a matter of law but a matter of politics, and hence does not belong in the domain of impeachment proceedings.
Let's, for the sake of argument however, agree just a moment that "Abuse of power" is a valid ground for impeachment.
The House of Representatives' charge under Article 1 states:
"Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election.
He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage."
In my previous blog post, I stated:
"Trump wanted Zelensky to investigate Joe Biden for engineering the firing of Prosecutor General then, Viktor Shokin, as he [Shokin] was investigating Burisma Holdings, a company that was mired in money laundering and corruption allegations in which Joe Biden's son, Hunter Biden, was a director of. Joe Biden had apparently threatened to withhold $1 billion in financial aid if Shokin was not fired. This is a serious allegation of bribery that ought to be investigated irrespective of politics.
As Commander in Chief, President Trump is also entitled to uphold truth and justice in all matters related to the nation. That he has been stripped of this right is ludicrous."
How, then, do we know whether Trump acted in his own self-interest (Abuse of power) or in the nation's best interest (Non-Abuse of power)?
Dershowitz craftily invokes an argument put forth by Professor of Constitutional Law, Josh Blackman, and illustrates Blackman's 'Mixed Motives' doctrine - an extremely powerful argument that, to me, undermines the entire case of the House Impeachment Managers, to make his point:
"In 1864 during the height of the Civil War, President Lincoln encouraged General William Sherman to allow soldiers in the field to return to Indiana to vote. "What was Lincoln's primary motivation?" The Professor asks.
He wanted to make sure that the Government of Indiana would remain in the hands of Republican loyalists who would continue the War until victory.
Lincoln's request risked undercutting the military effort by depleting the ranks. Moreover, during this time, soldiers from the remaining States faced greater risks than did the returning Hoosiers.
The Professor continues, "Lincoln had duly motives. Privately, he sought to secure victory for his party, but as a President and as a Party leader and Commander-in-chief, made a decision with life or death consequences."
Professor Blackman drew the following conclusion from this and other historical events. He said "Politicians routinely promote their understanding of the general welfare while in the back of their minds considering how these actions will affect their popularity. Often the two concepts overlap. What's good for the country may be good for the official's re-election. All politicians understand that dynamic."
Like all human beings, presidents and politicians persuade themselves that their actions seen by their opponents as self-serving are primarily in the national interest.
In order to conclude that such mixed motives action constitute an "Abuse of Power", opponents must psycho-analyse the President, and attribute to him a singular self-serving motive. Such a subjective probing of motives cannot be the legal basis for a serious accusation of "Abuse of Power" that could result in the removal of an elected president, yet this is precisely what the Managers are claiming."
Boom.
ON OBSTRUCTION OF CONGRESS
This is yet another vague, broad and open-ended 'offence' that President Trump is being charged with.
As Dershowitz rightly points out in his statement:
"It [The charge of Obstruction of Congress], too, [is] vague and indefinable ... [and in quoting Hamilton].. the legislative body is not themselves the constitutional judge of their own powers, and the construction they put on them is not conclusive of other departments. Instead, the courts were designed as an intermediate body between the people as declared in the Constitution and the legislature in order to keep the latter within the limits assigned to their authority...
... it cannot be Obstruction of Justice or Congress under our system of Separation of Powers and Checks & Balances for a President to demand judicial review of the legislative subpoenas before they are complied with"
As if that wasn't strong enough, Dershowitz delivered the coup de grace to the House Impeachment Managers, turning his body to face them and stating tersely:
"I'm sorry, House Managers. You just picked the wrong criteria. You picked the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents. The idea of "Abuse of power" and "Obstruction of Congress" are so far from what the Framers had in mind that they so clearly violate the Constitution and would place Congress above the law."
Congress is not supreme.
The Constitution is.
Legislative Supremacy is not a thing in the United States of America as it is in the United Kingdom.
The House Impeachment Managers representing Congress are trying to subvert the Constitution by attempting to draw its own rules and interpret the Constitution in a way that benefits their own partisan agenda, and Dershowitz has demolished their case.
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