The Case Against the Democratic House Impeaching Trump Read online

  Also by Alan Dershowitz

  The Case Against Impeaching Trump

  The Case Against BDS: Why Singling Out Israel for Boycott Is Anti-Semitic and Anti-Peace

  Trumped Up: How Criminalization of Political Differences Endangers Democracy

  Electile Dysfunction: A Guide for Unaroused Voters

  The Case Against the Iran Deal

  Terror Tunnels: The Case for Israel’s Just War Against Hamas

  Abraham: The World’s First (But Certainly Not Last) Jewish Lawyer

  Taking the Stand: My Life in the Law

  The Trials of Zion

  The Case for Moral Clarity: Israel, Hamas and Gaza

  The Case Against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace

  Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11

  Finding Jefferson: A Lost Letter, a Remarkable Discovery and the First Amendment in the Age of Terrorism

  Blasphemy: How the Religious Right is Hijacking Our Declaration of Independence

  Pre-emption: A Knife That Cuts Both Ways

  What Israel Meant to Me: By 80 Prominent Writers, Performers, Scholars, Politicians and Journalists

  Rights From Wrongs: A Secular Theory of the Origins of Rights

  America on Trial: Inside the Legal Battles That Transformed Our Nation

  The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved

  The Case for Israel

  America Declares Independence

  Why Terrorism Works: Understanding the Threat, Responding to the Challenge

  Shouting Fire: Civil Liberties in a Turbulent Age

  Letters to a Young Lawyer

  Supreme Injustice: How the High Court Hijacked Election 2000

  Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law

  Just Revenge

  Sexual McCarthyism: Clinton, Starr, and the Emerging Constitutional Crisis

  The Vanishing American Jew: In Search of Jewish Identity for the Next Century

  Reasonable Doubts: The Criminal Justice System and the O.J. Simpson Case

  The Abuse Excuse: And Other Cop-Outs, Stories and Evasions of Responsibility

  The Advocate’s Devil

  Contrary to Popular Opinion

  Chutzpah

  Taking Liberties: A Decade of Hard Cases, Bad Laws, and Bum Raps

  Reversal of Fortune: Inside the Von Bülow Case

  The Best Defense

  Criminal Law: Theory and Process (with Joseph Goldstein and Richard Schwartz)

  Psychoanalysis, Psychiatry, and Law (with Joseph Goldstein and Jay Katz)

  Copyright © 2019 by Alan Dershowitz

  All rights reserved. No part of this book may be reproduced in any manner without the express written consent of the publisher, except in the case of brief excerpts in critical reviews or articles. All inquiries should be addressed to Skyhorse Publishing, 307 West 36th Street, 11th Floor, New York, NY 10018.

  Hot Books may be purchased in bulk at special discounts for sales promotion, corporate gifts, fund-raising, or educational purposes. Special editions can also be created to specifications. For details, contact the Special Sales Department, Skyhorse Publishing, 307 West 36th Street, 11th Floor, New York, NY 10018 or [email protected].

  Hot Books® and Skyhorse Publishing® are registered trademarks of Skyhorse Publishing, Inc.®, a Delaware corporation.

  Visit our website at www.hotbookspress.com

  10 9 8 7 6 5 4 3 2 1

  Library of Congress Cataloging-in-Publication Data is available on file.

  Cover design by Brian Peterson

  ISBN: 978-1-5107-4770-8

  Ebook ISBN: 978-1-5107-4771-5

  Printed in the United States of America

  Dedication

  This book is respectfully dedicated to an endangered species: genuine civil libertarians who pass the “shoe on the other foot” test.

  Acknowledgments

  My appreciation to my wife, Carolyn Cohen, who reads, reviews, and corrects everything I write, and to Elon Dershowitz, Jamin Dershowitz, Ella Dershowitz, and others who critiqued my words. Also, thanks to Harvey Silverglate and Alan Rothfeld for reviewing and critiquing the manuscript.

  This book could not have been written without the valuable assistance of my research team, Aaron Voloj Dessauer, Jennifer Barrow, and Hannah Dodson, who researched and contributed to the text and footnotes, and my assistant, Maura Kelley, who deciphered and typed my handwritten drafts and provided her usual invaluable assistance. You all know how much I appreciate your extraordinary efforts. A special thanks to my agent, Karen Gantz, who guided me through the process.

  Also, my thanks to Michael Campbell, Tony Lyons, and Bill Wolfsthal of Skyhorse Publishing for their speed and professionalism in getting the book ready for print.

  Author’s Note

  Part I of the following text was originally printed in The Case Against Impeaching Trump (Hot Books, an imprint of Skyhorse Publishing, 2018). In the months since the original publication, I have only seen the issues discussed therein worsen. In hopes of contributing to a more tolerant, less extreme, more nonviolent, and more critical America, I’ve added to, updated, and revised my arguments and published them here. For the sake of democracy, I hope they are widely read.

  Contents

  PART I:

  THE CONSTITUTIONAL CASE FOR IMPEACHING TRUMP DOESN’T PASS THE LEGAL TEST

  Opening Statements: The Age of Hyper-Partisan Politics

  The Partisan Shoe Is on the Other Foot

  When Politics Is Criminalized

  When Criminal Law Is Weaponized for Political Gain

  I Haven’t Changed. They Have.

  Trump: Accusations and Realities

  A Partisan Rush to Prosecute Trump

  Why Donald Trump Can’t Be Charged with Obstruction

  “Corrupt Motive” Is Not a Proper Criterion for Prosecuting a President

  The Ruling Shows I’m Right on Trump and Corruption

  No One Is Above the Law

  Does Donald Trump Have Congressional Immunity?

  Rod Rosenstein Should Not Be Fired, but Should He Be Recused?

  On Criminality and Presidential Advice

  Mueller and the Need for a Nonpartisan Commission

  Why Did Mueller Impanel a Second Grand Jury in DC?

  Flynn Plea Reveals Weakness, Not Strength, of Mueller Probe

  Trump Doesn’t Need to Fire Mueller—Here’s Why

  Desire to “Get Trump” Risks Death of Civil Liberties

  Does the President Have the Right to Expect Loyalty from His Attorney General?

  The Nunes FISA Memo Deserves More Investigation. Time for a Nonpartisan Commission

  Trump Is Right: The Special Counsel Should Never Have Been Appointed

  Accountability, Civil Liberties, and Michael Cohen

  The President Has a Special Obligation to Condemn the Racist Right

  Enough with the Anti-Trump McCarthyism!

  Targeting Trump’s Lawyer Should Worry Us All

  For ACLU, Getting Trump Trumps Civil Liberties

  The Final Nail in the ACLU’s Coffin

  “Firewalls” and “Taint Teams” Do Not Protect Fourth and Sixth Amendment Rights—We Need a New Law to Protect Lawyer-Client Relations

  The Sword of Damocles

  The Epic Struggle for Michael Cohen’s Soul and Testimony

  Federal Judge Rightly Rebukes Mueller for Questionable Tactics

  Trump’s Legal Defense and Movi
ng Forward

  Trump’s Better off Litigating Than Testifying

  The Trump Defense

  You Won’t Have Any Doubt at the End of This

  Can Trump Pardon Himself? The Answer Is: No One Actually Knows

  Trump Will Not Pardon Himself or Testify in Sex Cases

  People Confuse My Advocacy

  Tweeting with POTUS

  Conclusion, Part I

  PART II:

  THE POLITICAL CASE FOR IMPEACHING TRUMP DOESN’T PASS THE “SHOE ON THE OTHER FOOT” TEST

  In Defense of Equally Applying the Law and Letting Our System Work

  Federal Judge Agrees Nonpartisan Commission Beats Special Counsel

  Jeff Sessions Validates Chant to Lock Up Hillary Clinton

  Trump’s Bid to Silence Dissent Violates Spirit of First Amendment

  Impeaching Rosenstein May Hurt Trump

  Who Leaked the Trump Tape?

  An Obstruction Case against Trump Would Be a Civil Libertarian Nightmare

  Dangers to the First Amendment If Foreign Campaign Dirt Is Criminal

  Is “The Truth” the Truth When It Comes to Prosecutors?

  Did President Trump Violate Campaign Finance Laws?

  Who Is Guarding the Guardians?

  Should It Be Illegal for Prosecutors to “Flip” Witnesses?

  Will Mueller Subpoena Trump?

  Trump Is No Unindicted Co-Conspirator

  Mueller Report and Trump Response Should Be Issued Simultaneously

  On Tolerance, Hyper-partisanship, and our Deteriorating Public Discourse

  Maxine Waters Does Not Speak for Democrats or Liberals

  The Hard-Left’s Desire to Live in a Political Silo When It Comes to Trump

  Zealous Dems Fail to Hear Out Trump’s Constitutional Rights

  Coarseness, Bigotry, and Threats on Both Sides of Trump Divide

  How the Hard-Left Only Helps the Republicans and Donald Trump

  Immigrants Who Change America Are Its Lifeblood

  Kavanaugh, the Presumption of Innocence, the Court of Public Opinion, and the Integrity of our Institutions

  A Self-Inflicted Wound to Judicial Independence

  It All Depends on What Kind of Conservative Trump Chooses

  The SCOTUS Confirmation Process Has Gotten Out of Hand

  Six Rules for the Ford-Kavanaugh Hearings

  How to Decide Who to Believe In Kavanaugh, Rosenstein Drama

  Burden Is on Avenatti To Show Proof, or Face Consequences

  This Is No Mere “Job Interview”

  What If Kavanaugh Were a Liberal Muslim Accused of Terrorism?

  No One Won During the Brett Kavanaugh Confirmation

  Should Kavanaugh Be Stopped from Teaching at Harvard Law School?

  ACLU’s Opposition to Kavanaugh Sounds Its Death Knell

  The Shoe Test in the Media and Foreign Relations

  Biased Media Complicit as Hamas Sends Women, Children to Front Line

  NBC Demonizes John Bolton, Gatestone

  Chomsky Calls Russian Interference a Joke—and Guess Who He Blames?

  If Britain Wants to Show Its “Moral Backbone,” It Must Reject Jeremy Corbyn

  Why Did the Clintons Share the Stage with Farrakhan?

  Refusing Study in Israel Is a Bitter Lesson in Discrimination

  Impeachment Is Not the Answer

  Democrats, Don’t Try to Conduct a Revenge Inquisition

  Justice Kavanaugh Should Not Be Impeached or Investigated

  Don’t Seek Partisan Advantage from Pipe-Bomb Arrest

  Shootings, Bombs Reflect a Deeper Malady

  Both Sides Are Failing the Shoe on the Other Foot Test

  Conclusion, Part II

  Notes, Part I

  Notes, Part II

  Part I:

  The Constitutional Case Against Impeaching Trump Doesn’t Pass the Legal Test

  As a liberal democrat who worked hard to try to win back the House of Representatives, I urge my fellow Democrats not to shoot themselves in the foot by trying to impeach President Trump. As soon as it was announced that the Democrats had won control of the House, radical leftists were urging them to impeach President Trump. In an op-ed in the New York Times entitled “Why Democrats Must Impeach the President,” billionaire Democratic activist Tom Steyer demanded that “the new Democratic House majority must initiate impeachment proceedings against him as soon as it takes office in January.” Some newly elected Democratic members of Congress who ran on the promise to impeach President Trump are also demanding that articles of impeachment be prepared, as are some in the media.

  There are several reasons why this would be a mistake. The first is constitutional: it would be unconstitutional to impeach Trump unless there was substantial evidence that, while in office, he committed treason, bribery, or other high crimes and misdemeanors. Second, it would be a costly political blunder for the Democratic members of Congress who now control the House to fritter away their hard-earned mandate by engaging in a futile effort to remove President Trump. The effort would almost certainly fail unless dramatic new evidence of high crimes and misdemeanors were to emerge, because it would be impossible to secure the two-thirds supermajority in the Senate that is required to remove a sitting president. Finally, it would be hypocritical in the extreme for Democrats to do to President Trump what the Republicans did to President Bill Clinton: namely, impeach him for conduct that did not constitute a constitutionally impeachable offense. Democrats, including me, railed against Republicans for impeaching Bill Clinton, as we did when Republicans threatened to impeach and/or “lock up” Hillary if she became president. Impeaching President Trump would not pass what I call the “shoe on the other foot test,” which I explain in Part II of this book.

  The decision to impeach and remove a duly elected president is a momentous constitutional event. It has never occurred in our history as a nation, though the House of Representatives impeached both President Andrew Johnson (whose removal by the Senate was only one vote short of the two-thirds required for conviction) and President Bill Clinton (the Senate divided 50-50 along largely partisan lines). President Richard Nixon probably would have been impeached and removed had he not resigned.

  If the formal process of removal is to have legitimacy, it must be done in strict compliance with the provisions of the Constitution. Despite frequent claims that the impeachment and removal process is entirely political, that is not the case. Removing a president requires that legal criteria, set out explicitly in the Constitution, must first be satisfied before political considerations can come into play. The impeached president must be found guilty and convicted by two-thirds of the Senate of “treason, bribery, or other high crimes and misdemeanors.”

  I will argue in this book that if a president has not committed any of these specified crimes, it would be unconstitutional to remove him,1 regardless of what else he may have done or may do. If and only if he has committed at least one of these crimes may the House and Senate consider the political implications of impeaching and removing him. In other words, the commission of an impeachable crime is a necessary but not sufficient condition for a president’s removal. Put another way, the Constitution does not empower Congress to remove a president who has not committed an enumerated crime, and it does not require Congress to remove him even if he has committed such a crime. To that extent, and only to that extent, impeachment and removal are political in nature.

  Those who argue that because the process is legislative rather than judicial, that it must be entirely political rather than also legal, ignore an important structural aspect of our constitutional system of separation of powers and checks and balances: namely, that all three branches of our government are bound by our Constitution.

  The case against (or for) the impeachment of President Trump (or any other president) must, therefore, begin with the text of the Constitution. There are at least fifteen provisions of the Constitution and its twenty-six amendments that are relevant to impeachme
nt. Some are directly on point, such as the criteria for impeaching a president (which are the same for all federal government officials). Also directly on point are the procedures governing the trial of an impeached president, which are different in only one important respect from those of other impeached officials. The chief justice must preside at the trial of the only government official who is not, in the words of Professor Akhil Amar, “fungible”2—that is, whose duties are capable of being performed by another official. Other provisions are implicit or arguably relevant, but they, too, must be considered in making a case regarding impeachment.

  Let us begin with what should be uncontroversial: the Constitution sets out explicit criteria for impeaching and removing “the President, Vice President, and all civil officers of the United States.” These criteria, as articulated in Article II, §4, are the following: “Treason, bribery, or other high crimes and misdemeanors.” Only one of those crimes—treason—is defined in the Constitution. It “shall consist only in levying war against [the United States] or in adhering to their enemies, giving them aid and comfort.” The critical words—“levying,” “war,” “adhering,” “enemies,” “aid” and “comfort”—are not further defined. Three procedural prerequisites for conviction of treason are enumerated: (1) “the Testimony of two Witnesses”; (2) “to the same overt act”; (3) or a “confession in open court.”3

  The other specifically enumerated crime—bribery—is not defined in the Constitution, but Article I, §9, provides that no federal official “shall, without the consent of the Congress, accept any present emolument, office, or title of any kind whatever, from any King, Prince, or foreign state.” And Article II, §1, precludes the president from receiving “other emoluments from the United States or any of them.” Violation of these provisions was not explicitly made a crime or a ground for impeachment. Under the common law at the time of the Constitution, merely giving or accepting something of value did not constitute the crime of bribery unless it was specifically intended to influence a public official’s action. So it is unclear whether the word “bribery,” as used in the constitutional criteria for impeachment and removal, incorporates the “emoluments” clauses or is limited to the crime of bribery as defined at the time of the Constitution or by subsequent statutory enactments.