At least one individual involved in President Donald Trump’s defense thinks he can’t be impeached—even if he were to intentionally allow foreign armies to conquer and steal U.S. territory?
The shocking claim was made by Harvard Law Professor emeritus Alan Dershowitz in his recent book, The Case Against Impeaching Trump. A verified member of Trump’s impeachment defense team–though he says he’s not a full-fledged member–Dershowitz’s controversial legal argument is now predictably being imputed to the 45th president himself by Democrats.
“Assume [Vladimir] Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea,” Dershowitz writes on pages 26 and 27 of his book. “Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution.”
Dershowitz went on to clarify:
(It would, of course, be different if [the president] did it because he was paid or extorted.) Such a dramatic event might appropriately result in a constitutional amendment broadening the criteria for impeachment, but it would not justify ignoring or defying the words of our current Constitution.
The apparent incongruity of this position being put forth by anyone as a serious argument was a bit undone after Trump brought Dershowitz officially into the fold—and was first pointed out by New York-based attorney and author Luppe B. Luppen.
“Dershowitz’s idea is if the US is physically invaded by a foreign enemy, and the President doesn’t do anything about it, Congress has to sit on its hands, watch the occupying force march around pillaging, and wait to refer the matter to the besieged voters in the next election,” Luppen noted over the weekend.
“And the actual President just hired him!” a surprised-sounding Luppen exclaimed after Dershowitz was brought on. “After he wrote that!”
House Democrats addressed that bizarre contention in a 34-page reply brief issued Tuesday:
President Trump’s assertion that impeachable offenses must involve criminal conduct is refuted by two centuries of precedent and, if accepted, would have intolerable consequences. But this argument has not been accepted in previous impeachment proceedings and should not be accepted here. As one member of President Trump’s legal team previously conceded, President Trump’s theory would mean that the President could not be impeached even if he allowed an enemy power to invade and conquer American territory. The absurdity of that argument demonstrates why every serious constitutional scholar to consider it—including the House Republicans’ own legal expert—has rejected it.
Luppen ran a quick victory lap after the Democratic impeachment team released their brief:
— southpaw (@nycsouthpaw) January 21, 2020
Dershowitz has adamantly insisted as of late—or, more accurately, since Trump was elected—that impeachment is improper absent some formal criminal violation of a statute.
During a recent appearance on CNN, Dershowitz argued: “You need criminal-like behavior akin to bribery and treason.”
Anderson Cooper pointed out that this is not the position Dershowitz has always held—he argued exactly the opposite during the 1999 impeachment of Bill Clinton.
“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,” Dershowitz said at the time.
Regardless of whether those seemingly opposing statements are actually compatible—and Dershowitz claims they are—the president’s advocate self-evidently doesn’t believe intentionally forfeiting an entire U.S. state would even rise to “criminal-like” behavior.
Democrats, of course, were more than happy to point out Dershowitz’s conveniently extreme view—and to ascribe that view to Trump himself—before proceeding to dismantle the tendentious claim on a more basic level.
“The Framers intentionally did not tie ‘high Crimes and Misdemeanors’ to the federal criminal code—which did not exist at the time of the Founding—but instead created impeachment to cover severe abuses of the public trust like those of President Trump,” the brief continues.
[image via Chris McGrath/Getty Images]