Not to be confused with Leeroy Jenkins, and with much arm-waving Alan Dershowitz affirmed that the House has charged IMPOTUS* with impeachable offenses, despite declarations to the contrary. He also tried to apply a critique that trashes the recently revealed Bolton book in his speech to the Senate.






Watching CNN last week, I learned that I’m partly responsible for President Trump’s legal defense.

On the screen was one of the president’s lawyers, Alan Dershowitz, explaining his new position that impeachment requires “criminal-like behavior.” When the legal analyst Jeffrey Toobin interjected that “every single law professor” disagreed with him, Mr. Dershowitz rejoined that one professor — me! — was “completely” on his side.

Mr. Dershowitz encouraged Mr. Toobin to read a law review article I wrote on the impeachment of President Andrew Johnson, in which a former Supreme Court justice, Benjamin Curtis, successfully argued that no one should ever be punished for doing something that wasn’t a crime. Mr. Dershowitz apparently thought my article supported his view that even if Mr. Trump did everything the House has accused him of doing, the president shouldn’t be convicted because he hasn’t been accused of criminal behavior.

As an academic, my first reaction was to be grateful that someone had actually read one of my articles.

But as a legal academic, my second reaction was confusion. Even if you think impeachment requires a crime, as I do, that belief hardly supports the president’s defense or Mr. Dershowitz’s position. President Trump has been accused of a crime. Two in fact: “abuse of power” and “obstruction of Congress.”

The phrase “abuse of power” appears nowhere in the federal criminal code, which lists thousands of criminal laws passed by Congress over the years. But many crimes aren’t written down in codes. Crimes derived from the “common law” — the body of law developed from judicial opinions and legal treatises rather than statutes — have been a staple of American law for centuries. Today in many states, district attorneys routinely charge people with things like “assault,” “forgery” and “indecent exposure” even where no statute makes those things a crime.

Common-law crimes are no harder to define with precision than crimes written down in a statute. Ask any first-year law students for the common law’s definition of burglary and they’ll (hopefully) be able to tell you: “the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.” If someone is accused of burglary in a state where the crime isn’t defined by statute, no defense lawyer would respond by announcing that burglary is vague or made up. Burglary is an established crime, even where its definition exists only in legal treatises and judicial opinions.

President Trump’s defense falls apart for precisely the same reason. As with burglary, American legal treatises and judicial opinions have long recognized the criminal offense of “abuse of power,” sometimes called “misconduct in office.” In 1846, the first edition of the pre-eminent treatise on American criminal law defined this common-law offense as when “a public officer, entrusted with definite powers to be exercised for the benefit of the community, wickedly abuses or fraudulently exceeds them.” The treatise noted that such an officer “is punishable by indictment, though no injurious effects result to any individual from his misconduct.”…








Sleight #2: Dersh is saying that you need a stated crime. That's the opposite of the position he's taken his whole career until five seconds ago. 
Sleight #3: His throwing out a lot of things that sound like historical “fact” to establish his credibility. He's trying to make the Senators think that he is smarter and more learned than they.

Almost every “fact” he's stated thus far, is irrelevant. 

People do this all the time when talking about sports: “Honus Wagner, Cal Ripiken, Derek Jeter, these are all shortstops! GREAT ones. You might not know all these shortstops, but they ARE! I know shortstops and… Eli Manning is NO SHORTSTOP!” 
Sleight #4: Dersh says that he's not implying that the Senate is not “legally bound” to the arguments that impeachment requires a crime.

FOLKS, DERSH JUST GAVE AWAY THE WHOLE GAME. If the Senate, in it's power, is not legally bound to find a crime, THEN A CRIME IS UNNECESSARY. 

Literally EVERYTHING he says going forward is just a fancy show. He gave you the ANSWER right up top: the Senate CAN impeach for any reason they want to. The question is only if they want to.
It has NOTHING TO DO with the finding of a crime. Game set match. 
For those playing along at home, they do this on the bar exam ALL THE TIME. They'll give you this very long fact pattern. The *answer* will be in the very first sentence. But they'll spend a whole page trying to distract you from the answer they gave you RIGHT UP TOP. 
Dersh: For Congress to ignore the words of the Constitution itself, would place Congress about the law.

Again, Dersh JUST TOLD YOU that Congress can do just that. You're just supposed to forget that as he continues talking.

Sleight #5: This is more a FedSoc thing than a Dersh thing. See when the FedSoc wants the Constitution to say something it doesn't say: they use what Framers said BEFORE they put in the language, and argue that the actual text INCLUDES that larger conversation about the text. 
When FedSoc ONLY wants the Constitution to say what the bare text suggests, as they do here, the use all the Framer debate around the text as a REJECTION of everything other than what actually made it into the text. 
So, you can see, in this way, the originalists can make the Constitution say whatever they want it to say. The can change whether the text is INCLUSIVE of larger debates, or EXCLUSIVE, depending on which way fits the Republican agenda as they need it to. 
Sleight #6: Dersh makes the baseless claim that the inclusion of “other high crimes and misdemeanors” does NOT include “abuse of power.”
He's got no historical evidence that “abuse of power” was specifically excluded by the Framers. Because, of course they excluded no such thing. 
Sleight #7: He's arguing that the inclusion of non-criminal language to support impeachment (Which, AGAIN, DERSH ADMITS THAT NON-CRIMINAL REASONS EXIST IN THE CONSTITUTION TO REMOVE A POTUS), was only for mental or physical incapacity.
Evidence? Lol, it's Derh y'all. 
I feel like I'm being forced to take an issue-spotter, live, and at rapid speed. I've basically had nightmares about this. With @ewarren giving me a grade at the end. 
 Sleight #8: Dersh is trying to parse… the jurisdiction of the court of impeachment from… the grounds for impeachment itself.

His argument only works if you think there is SPACE between what the House can impeach FOR, and what the Senate can convict for. Which there ISN'T. 

All right, well here's something: UNLIKE STARR… Dershowtiz at least admits his hypocrisy. He says that he hadn't “researched” impeachment thoroughly enough when he spoke about the Clinton impeachment.

One only imagines what new thing he'll research for his next defendant. 

Sleight #9: Omg, he's talking about the rule of lenity.

Okay peeps, this is an OLD standard of interpretation that says, basically, “tie goes to the defendant.”

If we still applied this rule today, we'd have to release more prisoners than I can estimate. 

mentions Basically, we get out of “lenity” today by striking laws that are not sufficiently *definite* by ruling them unconstitutional as to vagueness.

I imagine that Dersh would LIKE to say Impeachment is unconstitutionally vague, but he can't so… lenity. 

Sleight #10: Dersh is making an argument for why Abuse of Power should NOT be grounds for impeachment. Because basically, it can be used politically.

Maybe, but of import here, Abuse of Power IS ground for impeachment, whether Dersh thinks it's a good idea or not. 

Dersh is arguing motive, like a good criminal defense attorney.

Unfortunately for Dersh, @realDonaldTrump actually told us his motive. On the call, he asked for an investigation into his political rivals. Motive established, counselor. 

 Sleight #11: NOW Dersh is arguing that even if Abuse of Power is impeachable, ordering a quid pro quo is okay.
And then he gives a bad analogy, and says quid pro quo alone is not an abuse of power. 
“Nothing in the Bolton revelations would rise to the level of abuse of power.”

… this is just wrong.

He's wrong, because tying a quid pro quo to FOREIGN ELECTION INTERFERENCE, is the abuse of power.

International deal making: not an abuse of power.
International election interference: clearly an abuse of power. 
Sleight #12: He's back to maladministration, arguing that when it was rejected, they also rejected abuse of power.

He's got nothing here. He keeps saying it together as if repetition makes it so, but he's got no quote or, PRECEDENT, saying that abuse of power is not impeachable. 

“By expressly rejecting maladministration, they implicitly rejected abuse.”

Again, he hasn't come CLOSE to establishing that using any legal means: precedents, texts, nothing. He's using the word “implicit” to serve the function of “take my word for it.” 

Sleight #13: He's naming all these things that the President might be impeached for (tweets, policies) and saying that this is the danger of “standardless impeachment.”

YEAH BUT, he's not being impeach FOR A TWEET now is he, Dersh. 

This, per usual, is the intellectually soft “slippery-slope” argument. Let's just name some other random things that *could* happen (but won't) if we do this ONE thing that clearly should happen.

Slippery slope arguments deserve C's. 

Sleight #14: “abuse of power and obstruction of congress are so far from what the Founders intended…”

You'll notice that this is the first time he's mentioned the obstruction charge. He doesn't even have an argument for obstruction, he's just roping it in there. 

I mean, he's just spent an hour trying to explain why Abuse of Power isn't what the founders thought, but has spent no time explaining why the violation of separation of power INHERENT in the obstruction of Congress charge, should also not be in there. 
Dersh is just out here *really* counting on people being slower and dumber than he is. And I'm just not. I've seen all these tricks before. The game moves slower when you can see the laces spinning on the ball. 
Sleight #15: Dersh is complaining that because his arguments have been roundly rejected by nearly everybody with standing, people should take his arguments seriously.

My four year old asks me to do this all the time. 

Sleight #16: Dersh says that he would be making the same Constitutional arguments regardless of party.


This is such a dumb argument. 


I will close with what Dershowitz said 50 minutes before he stopped talking:

Dershowitz admitted that THE SENATE is not bound to the legal interpretation that impeachment requires a crime.

Literally, EVERYTHING he said after that was an dedicated attempt to obscure that torpedo he took to his own argument almost as soon as he began it. 

mentions I'll let professors @tribelaw or @ewarren grade my performance in today's Dershowitz issue-spotter.

Thanks for listening. 

  • January 28, 2020