As the Senate moves toward pivotal votes on witnesses and the articles of impeachment, Republican senators who decide that Donald Trump’s shakedown of Ukraine was sleazy, but not worth removing him from office, still have a problem. They risk angering a president who insists his actions were “perfect” and beyond reproach.
In the face of a such a dilemma, senators were offered an escape hatch this week by Trump lawyer Alan Dershowitz: Don’t worry about what Trump did, Dershowitz assured the senators. You can tell your constituents that if the president didn’t commit a crime, he can’t be impeached and removed from office.
In other words, it doesn’t matter if the president withheld nearly $400 million in congressionally approved military aid from Ukraine for the selfish purpose of acquiring political dirt on former Vice President Joe Biden. Or that Trump stonewalled Congress’ investigation.
Dershowitz vs. himself in ’98
Abuse of power and obstruction of Congress — the two House-approved impeachment articles against him — are not statutory crimes like treason or bribery, Dershowitz told the Senate. The no-crime, no-foul argument resonated with some GOP senators. “I don’t disagree,” said Sen. Roy Blunt of Missouri, one of 14 sitting Republican senators who voted to impeach or convict President Bill Clinton two decades ago for lesser offenses.
Is Dershowitz correct?
In a word, no.
If you don’t believe us, just ask … the very same Alan Dershowitz. Back in 1998, during the Clinton impeachment proceedings, the famed Harvard law professor 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.” (Dershowitz now says he reached his new conclusion after further analysis and study.)
U.S. Capitol police officers remove a protest banner on Jan. 29, 2020. (Photo: Jose Luis Magana/AP)
ALAN DERSHOWITZ: Founding Fathers implicitly rejected abuse of power as permissible criterion for impeachment
The great majority of legal scholars agree that impeachment doesn’t require a crime. These include the Republicans’ star legal witness during the House impeachment proceedings, constitutional law professor Jonathan Turley. Even Trump’s attorney general, William Barr, has written that abuse of power is a legitimate impeachment allegation.
Experts often key in on the Constitution’s reference to “high crimes and misdemeanors.” Today, a misdemeanor might seem an odd crime for removing a president. But under 18th century legal interpretations familiar to the Founders, the term held a broader meaning that included the abuse of trust or acting contrary to the duty of office.
Illegally delayed military aid
Congress’ earliest impeachments bear this out, where federal judges were accused of public drunkenness, using rude language or rendering arbitrary decisions — none of them serious crimes. The official practice manual for the House of Representatives notes that only a third of the impeachment articles passed by that chamber since the nation’s inception have included explicit violations of criminal law.
The framers themselves contemplated grounds for removal beyond simply criminal statutes. James Madison argued at the Constitutional Convention that it was “indispensable that some provision should be made for defending the community against the incapacity, negligence or perfidy of the chief magistrate.”
Consider, for example, a president who decides to take a nine-month vacation in the wilderness. Although he might not be breaking the law, he surely would be constitutionally derelict.
There is ample proof that Donald Trump abused the power of his office when he tried to extort election dirt from the Kyiv government and then obstructed Congress. The Government Accountability Office, a nonpartisan congressional watchdog agency, said this month that the administration illegally delayed the military aid Ukraine needed to fight Russian aggression. But even if Trump’s thuggish behavior didn’t fit neatly into a criminal statute, it was sufficiently egregious as to warrant his conviction.
Just as all crimes aren’t necessarily impeachable, all impeachable conduct isn’t necessarily criminal.
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Then and now
These incumbent Republican senators served in the House in 1998 and voted to impeach President Bill Clinton:
►Roy Blunt, Missouri
►Richard Burr, North Carolina
►Mike Crapo, Idaho
►Lindsey Graham, South Carolina
►Jerry Moran, Kansas
►Rob Portman, Ohio
►John Thune, South Dakota
►Roger Wicker, Mississippi
These incumbent Republican senators voted in 1999 to remove Clinton:
►Mike Enzi, Wyoming
►Charles Grassley, Iowa
►James Inhofe, Oklahoma
►Mitch McConnell, Kentucky
►Pat Roberts, Kansas
►Richard Shelby, Alabama
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