It’s been the overwhelming consensus, impeachment scholar Philip C. Bobbitt of the Columbia Law School told The Washington Post on Monday. Among those who accepted it was Alan Dershowitz, the fabled defense lawyer, now Harvard Law School professor emeritus and part of President Trump’s impeachment defense team.
“It certainly doesn’t have to be a crime,” he said in a television interview in 1998, during the impeachment controversy surrounding President Bill Clinton. “If you have somebody who completely corrupts the office of the president and abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”
He got into one of his famous brawls on CNN on Monday night. Host Anderson Cooper and the network’s chief legal analyst, Jeffrey Toobin, confronted Dershowitz about his changed opinion. The resulting exchange wasn’t pretty.
“So you were wrong then,” Cooper said to Dershowitz.
“No, I wasn’t wrong. I have a more sophisticated basis for my argument,” he said, citing his research into the 1868 impeachment proceedings against President Andrew Johnson. “It’s very clear now that what you need is criminal-like behavior akin to bribery and treason.”
All this was once a bit academic. But now it’s a central element in Trump’s defense. He is charged in two articles of impeachment, abuse of power and obstruction of Congress, neither of which is a crime. The answer is a big deal.
Toobin opened up on Dershowitz at the outset of the program.
“What is clear is that Alan was right in 1998 and he’s wrong now,” Toobin said. “I mean, the two statements cannot be reconciled. One is right or one is wrong and the one in 1998 was right. … Look, every single law professor that has looked at this issue except you” believes that a crime is unnecessary.
Smart lawyer that he is, Dershowitz tried to make Toobin the defendant, accusing him of “lying” when he claimed “every single law professor” disagreed.
Triumphantly, Dershowitz identified one who agreed with him, Harvard Law School’s Nikolas Bowie. He referenced a December 2018 commentary by Bowie.
“Don’t make up stories about ‘every professor,’ ” Dershowitz said. “Please withdraw that argument that no professor said it.”
Toobin, smiling, modified his statement. “Okay, ‘virtually every’ professor.” Toobin noted that he was able to admit a mistake. Why couldn’t Dershowitz?
Cooper rejoined the fray and soon they were all talking at once.
“You were wrong,” Cooper told Dershowitz.
“I wasn’t wrong,” Dershowitz replied. “I am just far more correct now than I was then. … I think your viewers are entitled to hear my argument without two bullies jumping on everything I say.”
“Oh come on,” said a bemused Cooper.
The viral television moment was one in a series of battles that have unfolded since Trump’s election between Dershowitz and Toobin, spiced up by the fact that Toobin was a Dershowitz student at Harvard Law School and has made no secret of his view that his former professor, once thought to be a liberal, has gone over the edge.
“Alan, I don’t know what’s going on with you,” he said of his longtime friend and mentor, during an argument on CNN in March 2018, in which Dershowitz blasted the appointment of special counsel Robert S. Mueller III to investigate Russian interference in the 2016 election.
“How has this come about that, in every situation over the past year, you have been carrying water for Donald Trump?” Toobin said later in the show. “This is not who you used to be, and you are doing this over and over again in situations that are just obviously rife with conflict of interest. And it’s just, like, what’s happened to you?”
“I’m not carrying his water,” Dershowitz responded in the 2018 exchange. “I’m saying the exact same thing I’ve said for 50 years. And, Jeffrey, you ought to know that, you were my student.”
On the question at hand, whether removal requires criminal behavior by the president, the Trump defense team argues as follows:
“By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law.’ That was a deliberate choice designed to constrain the impeachment power. In keeping with that restriction, every prior presidential impeachment in our history has been based on alleged violations of existing law — indeed, criminal law.”
Since the framers mentioned only offenses that were crimes — bribery and treason — in the first part of the impeachment clause, it follows that the phrase “other high crimes and misdemeanors” also referred to crimes. Bribery and treason are crimes, therefore the other elements of the clause must also refer to crimes.
The scholarly consensus to the contrary is based in part on the 1787 context of that language — in English law, the Constitutional Convention, the ratification debates afterward and the Federalist.
It’s also backed by the principle that the interpretation of laws and the Constitution should, where possible, avoid ridiculous results.
Limiting impeachable offenses to crimes would have been an “absurdity,” Charles Black wrote in “Impeachment: A Handbook,” a Watergate-era book just updated by Bobbitt that’s been called a “bible” on the topic.
“Suppose a president were to move to Saudi Arabia, so he could have four wives, and were to propose to conduct the office of presidency by mail and wireless from there. This would not be a crime, provided his passport were in order.
“Is it possible that such gross and wanton neglect of duty could not be grounds for impeachment and removal?”
Another example from Black: “Suppose a president were to announce that he would under no circumstances appoint any Roman Catholic to office and were rigorously to stick to this plan …
“It would be absurd,” Black wrote, “to think that a president might not properly be removed for it.”