The search for the perfect impeachable offense against President Trump is reminiscent of overzealous prosecutors who target the defendant first and then search for the crime with which to charge him. Or to paraphrase the former head of the Soviet secret police to Stalin: show me the man and I will find you the crime.
All civil libertarians should be concerned about an Alice in Wonderland process in which the search for an impeachable crime precedes the evidence that such a crime has actually been committed.
Under our constitutional system of separation of powers, Congress may not compel the Executive Branch to cooperate with an impeachment investigation absent court orders.
Conflicts between the Legislative and Executive Branches are resolved by the Judicial Branch, not by the unilateral dictate of a handful of partisan legislators. It is neither a crime nor an impeachable offense for the president to demand that Congress seek court orders to enforce their demands. Claims of executive and other privileges should be resolved by the Judicial Branch, not by calls for impeachment.
The search for the perfect impeachable offense against President Trump is reminiscent of overzealous prosecutors who target the defendant first and then search for the crime with which to charge him. Or to paraphrase the former head of the Soviet secret police to Stalin: show me the man and I will find you the crime. (Photo by Tasos Katopodis/Getty Images)
The effort to find (or create) impeachable offense against President Donald Trump has now moved from the subjects of the Mueller investigation — collusion with Russia and obstruction of justice — to alleged recent political “sins”: “quid pro quo” with Ukraine and obstruction of Congress.
The goal of the impeach-at-any-cost cadre has always been the same: impeach and remove Trump, regardless of whether or not he did anything warranting removal. The means — the alleged impeachable offenses — have changed, as earlier ones have proved meritless. The search for the perfect impeachable offense against Trump is reminiscent of overzealous prosecutors who target the defendant first and then search for the crime with which to charge him. Or to paraphrase the former head of the Soviet secret police to Stalin: show me the man and I will find you the crime.
Although this is not Stalin’s Soviet Union, all civil libertarians should be concerned about an Alice in Wonderland process in which the search for an impeachable crime precedes the evidence that such a crime has actually been committed.
Before we get to the current search, a word about what constitutes an impeachable crime under the constitution, whose criteria are limited to treason, bribery or other high crimes and misdemeanors. There is a debate among students of the constitution over the intended meaning of “high crimes and misdemeanors.” Some believe that these words encompass non-criminal behavior. Others, I among them, interpret these words more literally, requiring at the least criminal-like behavior, if not the actual violation of a criminal statute.
What is not debatable is that “maladministration” is an impermissible ground for impeachment. Why is that not debatable? Because it was already debated and explicitly rejected by the framers at the constitutional convention. James Madison, the father of our Constitution, opposed such open-ended criteria, lest they make the tenure of the president subject to the political will of Congress. Such criteria would turn our republic into a parliamentary democracy in which the leader — the prime minister — is subject to removal by a simple vote of no confidence by a majority of legislators. Instead, the framers demanded the more specific criminal-like criteria ultimately adopted by the convention and the states.
Congress does not have the constitutional authority to change these criteria without amending the Constitution. To paraphrase what many Democratic legislators are now saying: members of Congress are not above the law; they take an oath to apply the Constitution, not to ignore its specific criteria. Congresswoman Maxine Waters placed herself above the law when she said:
“Impeachment is about whatever the Congress says it is. There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors,’ and we define that.”
So, the question remains: did President Trump commit impeachable offenses when he spoke on the phone to the president of Ukraine and/or when he directed members of the Executive Branch to refuse to cooperate, absent a court order, with congressional Democrats who are seeking his impeachment?
The answers are plainly no and no. There is a constitutionally significant difference between a political “sin,” on the one hand, and a crime or impeachable offenses, on the other.
Even taking the worst-case scenario regarding Ukraine — a quid pro quo exchange of foreign aid for a political favor — that might be a political sin, but not a crime or impeachable offense.
Many presidents have used their foreign policy power for political or personal advantage. Most recently, President Barack Obama misused his power in order to take personal revenge against Israeli Prime Minister Benjamin Netanyahu. In the last days of his second term, Obama engineered a one-sided UN Security Council resolution declaring that Israel’s control over the Western Wall — Judaism’s holiest site — constitutes a “flagrant violation of international law.” Nearly every member of Congress and many in his own administration opposed this unilateral change in our policy, but Obama was determined to take revenge against Netanyahu, whom he despised. Obama committed a political sin by placing his personal pique over our national interest, but he did not commit an impeachable offense.
Nor did President George H. W. Bush commit an impeachable offense when he pardoned Caspar Weinberger and others on the eve of their trials in order to prevent them from pointing the finger at him.
This brings us to President Trump’s directive with regard to the impeachment investigation. Under our constitutional system of separation of powers, Congress may not compel the Executive Branch to cooperate with an impeachment investigation absent court orders. Conflicts between the Legislative and Executive Branches are resolved by the Judicial Branch, not by the unilateral dictate of a handful of partisan legislators. It is neither a crime nor an impeachable offense for the president to demand that Congress seek court orders to enforce their demands. Claims of executive and other privileges should be resolved by the Judicial Branch, not by calls for impeachment.
So, the search for the holy grail of a removable offense will continue, but it is unlikely to succeed. Our constitution provides a better way to decide who shall serve as president: it’s called an election.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of The Case Against the Democratic House Impeaching Trump, Skyhorse Publishing, 2019.
Published firs in the Gladstone institude
Menachem Begin in December 1942 wearing the Polish Army uniform of Gen. Anders’ forces with his wife Aliza and David Yutan; (back row) Moshe Stein and Israel Epstein
(photo credit: JABOTINSKY ARCHIVES)
During the inauguration of a memorial to the victims of the Siege of Leningrad in Jerusalem’s Sacher Park on January 24, 2020, before the climax of Holocaust remembrance events at which Russian President Vladimir Putin was given a central platform, we were stunned to hear a rendition of The Blue Kerchief (Siniy
Giant figures are seen during the 87th carnival parade of Aalst February 15, 2015
The annual carnival in Aalst, Belgium, is expected to take place on Sunday with even more antisemitic elements than in previous years.
Aalst’s organizers have sold hundreds of “rabbi kits” for revelers to dress as hassidic Jews in the carnival’s parade. The kit includes oversized noses, sidelocks (peyot) and black hats. The organizers plan to bring back floats similar to the one displayed in 2019 featuring oversized dolls of Jews, with rats on their shoulders, holding banknotes.
Pope Francis waves as he arrives at the Basilica of Saint Nicholas in the southern Italian coastal city of Bari, Italy February 23, 2020. Photo: REUTERS/Remo Casilli.
Pope Francis on Sunday warned against “inequitable solutions” to the Israeli-Palestinian conflict, saying they would only be a prelude to new crises, in an apparent reference to US President Donald Trump’s Middle East peace proposal.
Francis made his comments in the southern Italian port city of Bari, where he traveled to conclude a meeting of bishops from all countries in the Mediterranean basin.
Palestinians walk past a shop selling fruits in Ramallah, Feb. 20, 2020. Photo: Reuters / Mohamad Torokman.
Israel and the Palestinian Authority (PA) have reached an agreement to end a five-month long trade dispute, officials said on Thursday.
The dispute, which opened a new front in the Israeli-Palestinian conflict, began in September when the PA announced a boycott of Israel calves. The PA exercises limited self-rule in the West Bank under interim peace deals.
Antisemitic caricatures on display at the annual carnival in Aalst, Belgium. Photo: Raphael Ahren via Twitter.
Disturbing images emerged on Sunday of the annual carnival at Aalst, Belgium, showing an astounding number of antisemitic themes, costumes, displays and statements.
Israeli journalist Raphael Ahren documented people dressed as caricatures of Orthodox Jews, a fake “wailing wall” attacking critics of the parade, blatantly antisemitic characters and puppets wearing traditional Jewish clothes and sporting huge noses.
The stench of anti-Semitism always hovers over Switzerland’s Lake Geneva when the United Nations Human Rights Council (UNHRC) is meeting there. The foul emanations reached a new nadir last week with UNHRC’s publication of a “database” of companies doing business in the disputed territories in Israel.
Following the publication of the list, Bruno Stagno Ugarte, deputy director for advocacy of NGO Human Rights Watch, stated, “The long-awaited release of the U.N. settlement business database should put all companies on notice: To do business with illegal settlements [sic] is to aid in the commission of war crimes.”
One of the many things that annoys me about politicians is how sure they are of themselves. Everything is black and white. Every idea is good or bad. Take globalism, for example. You either love it or hate it. It works or it doesn’t.
Another thing that annoys me is how so much of a politician’s life revolves around power: Do everything you can to get it, and everything you can to keep it.
Why am I ranting? Because, while our politicians have been consumed with power and the media with the fights over power, a threat to our nation has been virtually ignored.
Blue and White Party leaders Benny Gantz and Yair Lapid are establishing their diplomatic credentials in the immediate run-up to Israel’s March 2 election with an insult to a U.S. administration that has arguably provided Israel with more diplomatic gains than any previous administration.
The Times of Israel reported that at a campaign stop in front of English-speaking Israelis, Gantz accused Israeli Prime Minister Benjamin Netanyahu “of neglecting bipartisan ties in favor of exclusive support from U.S. President Donald Trump’s Republican Party,” under the headline “Gantz pledges to mend ties with U.S. Democrats if elected.”
Bipartisanship was in short supply at the State of the Union address earlier this month—with one notable exception.
Nancy Pelosi had been looking dyspeptic, shuffling the papers she would later rip to shreds, when President Donald Trump reminded his audience that “the United States is leading a 59-nation diplomatic coalition against the socialist dictator of Venezuela, Nicolás Maduro.”
Suddenly, the House Speaker applauded. Trump then introduced “the true and legitimate president of Venezuela: Juan Guaidó.”
The law professor Alan Dershowitz has thrown a legal hand-grenade into America’s political civil war by claiming to have evidence that former President Barack Obama “personally asked” the FBI to investigate someone “on behalf” of Obama’s “close ally,” billionaire financier George Soros.
He made his cryptic remark in an interview defending U.S. President Donald Trump against claims he interfered in the prosecution of his former adviser, Roger Stone.