America’s Forever War
By: Matt P. Lavine
Tags: Constitutional Law, American History, Founding Fathers, Impeachment, Dershowitz

Part Three: Open Warfare

The originalists’ campaign typically takes place in law journals and legal opinions rarely understood outside of the legal profession. Thus, the American citizenry, and, specifically, American historians, are consequently ill-equipped to confront the assault on their Republic. In recent history, however, the monarchists’ attacks have twice taken place in full view of the public. On neither occasion did those charged with defending the public demonstrate the seriousness of the monarchists’ threat. Far more demonstrative of the existential threat posed by the originalists to the American identity was the performance of Alan Dershowitz at the trial of the first impeachment of President Donald Trump. Tragically, the intrigue over the political machinations surrounding the trial allowed the originalists’ deception to escape notice.

On December 18, 2019, the U.S. House of Representatives issued articles of impeachment against President Donald Trump for abuse of power and obstruction of Congress. The House managers began their presentation before the Senate on January 22, 2020. On January 27, 2020, Harvard Law School Professor Alan Dershowitz, on behalf of the President, argued that the Constitution granted Congress a limited power to impeach. According to the Professor, this power did not extend to the articles charged. 20

Following the strategy of the originalists, Prof. Dershowitz claimed that the historical record of the debates at the Constitutional Convention supported his argument.21 Thus, he promised the Senate:

I will begin, as all constitutional analysis begins, with the text of the constitution [and] then examine why the framers selected the words they did. I will transport you back to a hot summer in Philadelphia and . . . to patriots and ideas that helped shape our great nation. To prepare for this journey I have immersed myself in a lot of dusty old volumes [to] quote from the wisdom of our founders.22

In presenting his defense of the President, Dershowitz began with the assertion that the delegates to the Constitutional Convention of 1787 primarily feared replicating a “British style parliamentary democracy”. His sole piece of evidence was a statement by Madison to his fellow delegates expressing his opposition to the idea of a president serving “at the pleasure of the legislature”.23 According to Dershowitz, the delegates only acknowledged the value of impeachment after first debating the need to limit this legislative power. 24

Before the U.S. Senate, Dershowitz characterized the delegates’ debates as focusing on the degree of the restrictions on the impeachment power. He began by quoting delegate Gouverneur Morris, for his insistence that “the criteria for impeachment must be enumerated and defined.”25 While acknowledging that the delegates expressed the concern that a president might “pervert his administration into a scheme of speculation and oppression”, Dershowitz told the Senate that “not a single one of the framers suggested that these general fears [sufficed] for impeachment.”26 Dershowitz repeated his quote from Gouverneur Morris to claim that the Constitution’s framers believed that “corruption and some other offenses ought to be impeachable, but the cases ought to be enumerated and defined.”27

Ostensibly supporting his claim of a limited impeachment power, Dershowitz referenced two of the debates at the Convention. In the Professor’s telling, one followed the proposal by Connecticut’s Roger Sherman to give the Congress the power to remove the President “at its pleasure”. According to the Professor’s purported research, Benjamin Franklin opposed making the president “the mere creature of the legislature”, and Gouverneur Morris declared that the power to impeach would be a “great danger” to the new government’s operations. 28

Prof. Dershowitz described the other debate as an exchange between Madison and his fellow Virginian, George Mason. In the Professor’s presentation, the debate began when Mason proffered, as grounds for impeachment, malpractice, neglect of duty, malconduct, neglect in the execution of office, and … maladministration”. When, accoring to Dershowitz, Madison argued that “maladministration” was too vague a term, Mason substituted the phrase “other high crimes and misdemeanors”. Because the Convention approved the new language, the President’s lawyer concluded that the substituted language was of great import.29

Extending his argument, Dershowitz speculated that the delegates would have applied the same meaning to the phrase accepted by the Convention. Since Blackstone’s Commentaries was the favored treatise of the era’s American lawyers, the former professor of criminal law quoted a passage explaining that “a crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding or commanding it.”30 Finally, Dershowitz presumed that, following Blackstone, the delegates would have understood impeachment as a “prosecution of already known and established law presented to the most high and supreme court of criminal jurisdiction.”31 Since, at the time of the writing of the Constitution, there was no Federal crime for “abuse of power” or “obstruction of Congress”, these charges could not be grounds for impeachment.

Notes

20. U.S. Constitution, Article II, Section 4 states: “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

21. See Scalia, Antonin, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press 1997); cf., Charles, Patrick J., The Second Amendment: the Intent and its Interpretation (McFarland & Co. Jefferson, NC 2009).

22. Retrieved at 3:08 of Speech found at rev.com/blog/transcripts/alan-dershowitz-defenseargument-transcript-trump-impeachment-trial-january-27 and c-span.org/video/?468552–4/senate-impeachment-trial-day-7-defense-opening-arguments-ray-dershowitz-cipollone (“Dershowitz”)

23. Dershowitz at 4:50.

24. Dershowitz at 21:03.

25. Dershowitz at 19:48.

26. Dershowitz at 22:11.

27. Dershowitz at 22:11.

28. Dershowitz at 25:16.

29. Dershowitz at 25:49.

30. Dershowitz, at 30:17.

31. Dershowitz, at 31:35.

NEXT — Part Four: Defending the Republic