Watch the video and read the transcript of the Alan Dershowitz Defense Argument in the Trump Impeachment Trial on January 27, 2020.
Mr. Chief Justice, distinguished members of the Senate, our friends, lawyers, fellow lawyers it’s a great honor for me to stand before you today to present a constitutional argument against the impeachment and removal not only of this president, but of all and any future presidents who may be charged with the unconstitutional grounds of abuse of power and obstruction of Congress. I stand before you today as I stood in 1973 and 1974 for the protection of the constitutional and procedural rights of Richard Nixon, who I personally abhorred and whose impeachment I personally favored, and as I stood for the rights of Bill Clinton, who I admired and whose impeachment I strongly opposed.
I stand against the application and misapplication of the constitutional criteria in every case and against any president without regard to whether I support his or her parties or policies. I would be making the very same constitutional argument had Hillary Clinton, for whom I voted, been elected and had a Republican House voted to impeach her on these unconstitutional grounds.
I am here today because I love my country and our constitution. Everyone in this room shares that love. I will argue that our constitution and its terms high crimes and misdemeanors do not encompass the two articles, charging abuse of power and obstruction of Congress. In offering these arguments, I stand in the footsteps and in the spirit of justice Benjamin Curtis who was of counsel to impeach president Andrew Johnson and who explained to the Senate that quote, “A greater principle was at stake than the fate of any particular president.” And of William Evarts, a former secretary of state, another one of Andrew Johnson’s lawyers, who reportedly said that he had come to the defense table not as a partisan, not as a sympathizer, but to defend the constitution.
The constitution of course provides that the Senate has the sole role and power to try all impeachments. In exercising that power the Senate must consider three issues in this case. The first is whether the evidence presented by the House managers establishes by the appropriate standard of proof, proof beyond a reasonable doubt, that the factual allegations occurred. The second is whether if these factual allegations occurred, did they rise to the level of abuse of power and/or obstruction of Congress? Finally, the Senate must determine whether abuse of power and obstruction of Congress are constitutionally authorized criteria for impeachmen
The first issue is largely factual, and I leave that to others. The second is a combination of traditional and constitutional law, and I will touch on those. The third is a matter of pure constitutional law. Do charges of abuse and obstruction rise to the level of impeachable offenses under the constitution? I will begin as all constitutional analysis begins with the text of the constitution governing impeachment. I will then examine why the framers selected the words they did is the sole criteria authorizing impeachment. In making my presentation, I will transport you back to a hot summer in Philadelphia and a cold winter in Washington. I will introduce you 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 from the 18th and 19th century. I ask your indulgence as I quote from the wisdom of our founders.
This return to the days of yesteryear is necessary because the issue today is not what the criteria of impeachment should be, not what a legislative body or a constitutional body might today decide are the proper criteria for impeachment of a president, but what the framers of our constitution actually chose and what they expressively and implicitly rejected. I will ask whether the framers would have accepted such vague and open-ended terms as abuse of power and obstruction of Congress as governing criteria.
I will show by a close review of the history that they did not and would not accept such criteria for fear that these criteria would turn our new republic into a British style parliamentary democracy in which the chief’s executives tenure would be in the words of James Madison, the father of our constitution, “At the pleasure of the legislature.” The conclusion I will offer for your consideration is similar, though not identical, to that advocated by highly respected justice Benjamin Curtis, who as you know, dissented from the Supreme court’s notorious decision in Dred Scott and who after resigning in protest from the high court served as counsel to president Andrew Johnson in the Senate impeachment trial.
He argued and I quote, “There can be no crime, there can be no misdemeanor without a law written or unwritten, express or implied.” In so arguing, he was echoing the conclusion reached by Dean Theodore Dwight of the Columbia Law School who wrote in 1867 just before the impeachment, “Unless a crime is specifically named in the constitution, treason and bribery, impeachments like indictments can only be instituted for crimes committed against the statutory law of the United States.” As Judge Starr said earlier today, he described that as “The weight of authority being on the side of that proposition at a time, much closer to the framing than we are today.”
The main thrust of my argument, however, and the one most relevant to these proceedings is that even if that position is not accepted, even if criminal conduct were not required, the framers of our constitution implicitly rejected, and if it had been presented to them, would have explicitly rejected such vague terms as abuse of power and obstruction of Congress as among the enumerated and defined criteria for impeaching a president. You will recall that among the articles of impeachment against President Johnson were accusations of non-criminal but outrageous misbehavior, including ones akin to the abuse of power and obstruction of Congress. For example, Article 10 charged Johnson “Did attempt to bring into disgrace, ridicule, hatred, and contempt and reproach the Congress of the United States.” Article 11 charge Johnson with “Denying that Congress was authorized by the constitution to exercise legislative power and denying that the legislation of said Congress was obligatory upon him.”
Pretty serious charges. Here’s how Justice Curtis responded to these non criminal charges. Quote, “My first position is that when Congress speaks of treason, bribery, and other crimes and misdemeanors, it refers to and includes only high criminal offenses against the United States made so by some law of the United States existing when the acts complained of were done. And I say,” he continued, “that this is plainly to be inferred from each and every one of the provisions of the constitution on the subject of impeachment.” And I will briefly review those other provisions of the constitution with you.
Judge Curtis’s interpretation is supported, indeed in his view, it was compelled by the constitutional text. “Treason, bribery and other high crimes and misdemeanors are high crimes, other high crimes and misdemeanors must be akin to treason and bribery.” Curtis cited the Latin phrase, [foreign language 00:08:25], I’m sorry for the mispronunciation, referring to a classic rule of interpretation that when the meaning of a word that is part of a group of words is uncertain, you should look to the other words in that group that provide interpretive context.
The late Justice Antonin Scalia gave the following current example. “If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan, and other great competitors, the last noun does not reasonably refer to Sam Walton, who was a great competitor but in business, or to Napoleon, a great competitor on the battlefield.” Applying that rule to the groups of words, treason, bribery, and other high crimes and misdemeanors, the last five words should be interpreted to include only serious criminal behavior akin to treason and bribery.
Justice Curtis then reviewed the other provisions of the constitution that relate to impeachment. First, he started with the provision that says, “The President of the United States shall have the power to grant reprieves and pardons,” listen now, “for offenses against the United States, except in cases of impeachment.” He cogently argued that if impeachment were not an offense against the United States, was not based on an offense against the United States, there would’ve been no need for any constitutional exception.
He then went on to a second provision. “The trial of all crimes, except in cases of impeachment, shall be by jury.” This demonstrated, according to Curtis, that impeachment requires a crime. But unlike other crimes, it does not require a jury trial. You are the judge and the jury. He also pointed out that impeachment trial, by the express words of the constitution, requires an acquittal or a conviction, judgments generally rendered only in the trial of crimes. Now, President Johnson’s lawyers, of course, argued in the alternative as all lawyers do when there are questions of fact and of law. He argued that Johnson did not violate the articles of impeachment, as you’ve heard from other lawyers today, but even if he did that the articles do not charge impeachable offenses, which is the argument that I am making before you this evening. Justice Curtis’s first position, however, was that the articles did not charge an impeachable offense because they did not allege high crime offenses against the United States.
According to a Harvard historian and law professor, Nicholas Buoy, Curtis’s constitutional arguments were persuasive to at least some senators who were no friends with President Johnson, including the co-authors of the 13th and the 14th amendments. As Senator William Pitt Fessenden later put it, “Judge Curtis gave us the law and we followed it.” Senator James W. Grimes echoed Curtis’s argument by refusing to accept an interpretation of high crimes and misdemeanors that changes according to the law of each senator’s judgment enacted in his own bosom after the alleged commission of the offense. Though he desperately wanted to see President Johnson, who he despised, out of office, he believed that an impeachment and removal without the violation of law would be quote, “Construed into approval of impeachments as part of future political machinery.”
According to Professor Buoy, Justice Curtis’s constitutional arguments may well have contributed to the decision, by at least some of the seven Republican dissidents, to defy their party and vote for acquittal, which was secured by a single vote. Now today, Professor Buoy has an article in the New York Times in which he repeats his view that quote, “Impeachment requires a crime.” But he now argues that the articles of impeachment do charge crimes. He is simply wrong. He is wrong because in the United States versus Hudson, a case decided more than 200 years ago now, the United States Supreme Court ruled that federal courts have no jurisdiction to create common law crimes. Crimes are only what are in the statute book
So Professor Buoy is right that the constitution requires a crime for impeachment, but wrong when he says that common law crimes can be used as a basis for impeaching even though they don’t appear in the statute books. Now, I’m not here arguing that the current distinguished members of the Senate are in any way bound, legally bound, by Justice Curtis’s arguments or those of Dean Dwight. But I am arguing that you should give them serious consideration, the consideration to which they’re entitled by the eminence of their author and the role they may have played in the outcome of the closest precedent to the current case.
Now I want to be clear there’s a nuance difference between the arguments made by Curtis and Dwight and the argument that I am presenting here today, based on my reading of history. Curtis argued that there must be a specific violation of pre-existing law. He recognized that at the time of the constitution there were no federal criminal statutes. Of course not. The constitution established the national government, so we couldn’t have statutes prior to the establishment of our constitution and our nation. This argument is offered today by proponents of this impeachment on the claim that framers could not have intended to limit the criteria for impeachment to criminal behavior.
Justice Curtis addressed that issue and that argument head on. He pointed out that crimes such as bribery would be made criminal by the laws of the United States, which the framers of the constitution knew would be passed. In other words, he anticipated that Congress would soon enact statutes punishing and defining crimes such as burglary, extortion, perjury, et cetera. He anticipated that and he based his argument in part on that. The constitution already included treason as a crime and that was defined in the constitution itself. And then it included other crimes.
But what justice Curtis said is that you could include laws written or unwritten, express or implied, by which he meant common law, which at the time of the constitution there were many common law crimes. And they were enforceable even federally until the Supreme Court, many years later, decided that common law crimes were no longer part of federal jurisdiction.
So the position that I’ve derived from the history would include, and this is a word that has upset some people, but would include criminal-like conduct akin to treason and bribery. There need not be, in my view, conclusive evidence of a technical crime that would necessarily result in a criminal conviction. Let me explain. For example, if a president were to receive or give a bribe outside of the United States and outside of the statute of limitations, he could not technically be prosecuted in the United States for such a crime. But I believe he could be impeached for such a crime because he committed the crime of bribery, even though he couldn’t technically be accused of it in the United States. That’s the distinction that I think we draw. Or if a president committed extortion, perjury, or obstruction of justice, he could be charged with these crimes as impeachable offenses because these crimes, though not specified in the constitution, are akin to treason and briber.
This would be true even if some of the technical elements, time and place, were absent. What Curtis and Dwight and I agree upon, and this is the key point in this impeachment case, please understand what I’m arguing, is that purely non-criminal conduct including abuse of power and obstruction of Congress are outside the range of impeachable offenses. That is the key argument I’m presenting today.
This view was supported by text writers and judges close in time to the founding. William Oldnall Russell, who’s 1819 treatise on criminal law was a Bible among criminal law scholars and others, define high crimes and misdemeanors as quote, “Such immoral and unlawful acts as are nearly allied and equal in guilt to a felony and yet owing to the absence of some technical circumstances, technical circumstances, do not fall within the definition of a felony.” Similar views were expressed by some state courts. Others disagreed.
Curtis considered views and those of Dwight, Russell, and others based on careful study of the text and history are not bonkers, absurdist, legal crap clap trap, or other demeaning epithets thrown around by partisan supporters of this impeachment. As Judge Starr pointed out, “They had the weight of authority.” They were accepted by the generation of founders and the generations that followed. If they are not accepted by academics today, that shows a weakness among the academics, not among the founders. These who disagree with Curtis’s textual analysis are obliged, I believe, to respond with reason counter interpretations, not name-calling. If Justice Curtis’s arguments and those of Dean Dwight are rejected, I think then proponents of impeachment must offer alternative principles, alternative standards for impeachment and removal.
We just heard that in 1970 Congressman Gerald Ford, who I greatly admired, said the following in the context of an impeachment of a justice. “An impeachable offenses, whatever, a majority of the House of Representatives considered it to be at a given moment in history, et cetera.” You all know the quote, Congresswoman Maxine Waters recently put it more succinctly in the context of a presidential impeachment. Here’s what she said. “Impeachment is whatever Congress says it is. There is no law.” But this lawless view would place Congress above the law. It would place Congress above the constitution. For Congress to ignore the specific words of the constitution itself and substitute its own judgments would be for Congress to do what it is accusing the president of doing. And no one is above the law, not the president and not Congress.
This is precisely the kind of view expressly rejected by the framers who feared having a president serve at the pleasure of the legislature. And it is precisely the view rejected by Senator James Grimes when he refused to accept an interpretation of high crimes and misdemeanors that would change according to the law of each senator’s judgment enacted in his own bosom. The constitution requires in the words of Gouverneur Morris, “That the criteria for impeachment must be enumerated and defined.” Those who advocate impeachment today are obliged to demonstrate how the criteria accepted by the House in this case are enumerated and defined in the constitution. The compelling textual analysis provided by Justice Curtis is confirmed by the debate in the constitutional convention, by the Federalist papers, by the writings of William Blackstone, and I believe by the writings of Alexander Hamilton, which were heavily relied on by lawyers at the time of the Constitution’s adoption. There were at the time of the constitution is adoption two great debates that went on, and it’s very important to understand the distinction between these two great debates.
The first hard to imagine today, but the first was should there be any power to impeach a president at all? And there were several members of the founding generation and of the framers of the constitution who said, “No.” Who said, “No, a president shouldn’t be allowed to be impeached.” The second, and the second is very, very important in our consideration today is if a president is to be subject to impeachment, what should the criteria be? These are very different issues and they are often erroneously conflated.
Let’s begin with the first debate during the broad debate about whether a president should be subject to impeachment, proponents of impeachment used vague and open-ended terms such as unfit, obnoxious, corrupt, misconduct, misbehavior, negligence, malpractice, perfidy, treachery, incapacity, peculation, and maladministration.
They worry that a president might quote, “Pervert his administration into a scheme of speculation and oppression.” That he might be corrupted by foreign influence. And yes, this is important, that he might have great opportunities of abusing his power. Those were the concerns that led the framers to decide that a president must be subject to impeachment. But not a single one of the framers suggested that these general fears justifying the need for an impeachment and removal mechanism should automatically be accepted as a specific criterion for impeachment. Far from it, as Governor Morris aptly put it. “Corruption and some other offenses ought to be impeachable, but the cases ought to be enumerated and defined.”
This ought to be enumerated and defined. The great fallacy of many contemporary scholars and pundits and with due respect, members of the House of Representatives, is that they fail to understand the critical distinction between the broad reasons for needing an impeachment mechanism and the carefully enumerated and defined criteria that should authorize the deployment of this powerful weapon.
Let me give you a hypothetical example that might have faced Congress or certainly will face Congress. Let’s assume that there is a debate over regulating the content of social media, whether we should have regulations or criminal civil regulations over Twitter and Facebook, et cetera. In the debate over regulating the social media, proponents of regulation might well cite broad dangers such as false information, inappropriate content, hate speech. Those are good reasons for having regulation, but when it came to enumerating and defining what should be prohibited, such broad dangers would have to be balanced against other important policies, and the resulting legislation would be much narrower and more carefully defined than the broad dangers that necessitated some regulation.
The framers understood and acted on this difference, but I’m afraid that many scholars and others and members of Congress failed to see this distinction and they cite some of the fears that led to the need for impeachment mechanism. They cite them as the criteria themselves. That is a deep fallacy. It’s crucially important that the distinction be sharply drawn between arguments made in favor of impeaching and the criteria then decided upon to justify the impeachment specifically of a president. The framers understood this and so they got down to the difficult business of enumerating and defining precisely which offenses among the many that they fear the president might commit should be impeachable as distinguished from those left to the voters to evaluate.
Some framers such as Roger Sherman wanted the president to be removable by the national legislature at its pleasure. Much like the British prime minister can be removed by a simple vote of no confidence by parliament. That view was rejected. Benjamin Franklin opposed decidedly the making of the executive quote, the mere creature of the legislature, Gouverneur Morris was against the dependence of the executive on the legislature. Considering the legislature, you will pardon me quoting this a great danger to be apprehended. I don’t agree with that.
James Madison expressed concerns about the president being improperly dependent on the legislature. Others worried about a feeble executive. Hearing these and other arguments against turning the new Republican to a parliamentary democracy in which the legislature had the power to remove the president, the framers set out to strike the appropriate balance between the broad concerns that led them to vote for a provision authorizing the impeachment of the president and the need for specific criteria, not subject to legislative abuse or overuse. Among the criteria proposed were malpractice, neglect of duty, malconduct, neglect in the execution of office, and this word we’ll come back to talk, maladministration. It was a response to that last term, a term used in Britain, as a criteria for impeachment that Madison responded, “So vague a term will be equivalent to a tenure during the pleasure of the Senate.” Upon hearing Madison’s objections, Colonel Mason withdrew maladministration and substituted other high crimes and misdemeanors.
Had a delicate proposed inclusion of abusive power or obstruction of Congress as enumerated and defined criteria for impeachment history, strongly suggests that Madison would have simply opposed it and it would have been rejected. I will come back to that argument a little later on when I talk specifically about abuse of power. Indeed Madison worried that a partisan legislature could even misuse the word misdemeanor to include a broad array of non-crimes, so he proposed moving the trial to the nonpartisan Supreme court. The proposal was rejected. Now this does not mean, as some have suggested, that Madison suddenly changed his mind and favored such misuse to expand the meaning of misdemeanor to include broad terms like misbehavior. No. It only meant that he feared, he feared that the word misdemeanor could be abused. His fear is moving to be oppression by the misuse of that term, high crimes and misdemeanors by the House in this case.
Now, the best evidence that the broad concerns cited by the framers to justify impeachment were not automatically accepted as criteria. Justifying impeachment is the manner by which the word incapacity, focus on that word please, incapacity was treated. Madison and others focused heavily on the problem of what happens if a president becomes incapacitated. Certainly a president who’s incapacitated should not be allowed to continue to preside over this great country, and everyone seemed to agree that the possibility of presidential incapacity is a good and powerful reason for having an impeachment provision. Well, when it came time to establishing criteria for actually removing a president, incapacity was not included. Why not? Presumably because it was too vague and subjective a term. When we had an incapacitated president in the end of the Woodrow Wilson second term, he was not impeached and removed. A constitutional amendment with carefully drawn procedural safeguards against abuse was required to remedy the daunting problem of a president who was deemed incapacitated. Now another reason why incapacitation was not included among impeachable offenses because it’s not criminal. It’s not a crime to be incapacitated. It’s not akin to treason. It’s not akin to bribery and it’s not a high crime and misdemeanor. The framers believed that impeachable offenses must be criminal in nature and akin to the most serious crimes. Incapacity simply did not fit into this category, nothing criminal about it, so the constitution had to be amended to include a different category of non-criminal behavior that warranted removal. I urge you to consider seriously that important part of the history of the adoption of our constitution.
I think that Blackstone and Hamilton also support this view. There’s no disagreement over the conclusion that the words treason, bribery, or other high crimes, those words require criminal behavior. The debate is only over the words and misdemeanors. The framers of the constitution were fully cognizant to the fact that the word misdemeanor was a species of crime. The book that was most often deemed authoritative was written by William Blackstone in Great Britain, and here is what he says about this in the version that was available to the framers. “A crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding or commanding it.” The general definition comprehends both crimes and misdemeanors, which properly speaking, are mere synonymous terms. Mere synonymous terms. He then went on though in common usage, “The word crimes is made to denote such offenses or of a deeper and more or atrocious die while smaller faults and omissions of less consequence are comprised under the gentler name of misdemeanors only.”
Interestingly though, he pointed out that misdemeanors were not always so gentle. There was a category called capital misdemeanors where if you stole somebody’s pig or other foul, you could be sentenced to death, but it’s only for a misdemeanor. Don’t worry, it’s not for a felony. But there were misdemeanors that were capital in nature. Moreover, Blackstone wrote that parliamentary impeachment quote, “Is a prosecution. A prosecution of already known and established law presented to the most high and Supreme court of criminal jurisdiction.” Analogous to this great court. He observed that a commoner can be impeached, but only for high misdemeanors. A peer may be impeached for any crime. Any crime. This certainly suggests that Blackstone deemed high misdemeanors to be a species of crime.
Hamilton is a little less clear in this issue, and not surprisingly because he was writing in Federalist No. 65, he was writing not to define what the criteria for impeachment were, he was writing primarily in defense of the Constitution as written and less to define its provisions, but he certainly cannot be cited in favor of criteria such as abuse of power or obstruction of Congress nor of impeachment voted along party lines.
He warned that the greatest danger, these were his words, “The greatest danger is that the decision will be regulated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.” In addition to using the criminal terms innocence or guilt, Hamilton also referred to quote, “Prosecution and sentence.” He cited the constitutional provisions that states that the party convicted shall nevertheless be liable and subject to a criminal trial as a reason for not having the president tried before the Supreme Court. He feared a double prosecution, a variation of double jeopardy, before the same judiciary. These points all sound in criminal terms, but advocates of a broad open-ended noncriminal interpretation of high crimes and misdemeanors insist that Hamilton is on their side. They cite the following words regarding the court of impeachment, and I think I’ve heard these words quoted more than any other words in support of a broad view of impeachment and they’re misunderstood.
Here’s what he said when describing the court of impeachment. He said, “The subjects of its jurisdiction,” those are important words, “The subjects of its jurisdiction,” by which he meant treason, bribery and other high crimes and misdemeanors. “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political as they relate chiefly to injuries done immediately to society itself.” Those are Hamilton’s words. They’re often misunderstood as suggesting that the criteria authorizing impeachment include the misconduct of public men or the abuse or violation of some public trust. That is a misreading.
These words were used to characterize the constitutional criteria that are the subject of the jurisdiction of the court of impeachment, namely treason, bribery or other high crimes and misdemeanors. Those specified crimes are political in nature. They are the crimes that involve the misconduct of public men and the abuse of violation of some public trust. Hamilton was not expanding the specified criteria to include as independent grounds for impeachment, misconduct, abuse, or violation. If anything, he was contracting them to require, in addition to proof of the specified crimes, also proof that the crime must be of a political nature. This would exclude President Clinton’s private nonpolitical crime. In fact, and this is interesting, Hamilton’s view was cited by Clinton’s advocates as contracting, not expanding, the meaning of high crimes. Today some of these same advocates look at the same words and cite them as expanding its meaning. Clinton was accused of a crime, perjury, and so the issue in his case was not whether the constitution required a crime for impeachment. Instead, the issue is where the Clinton’s alleged crime could be classified as a high crime in light of its personal nature.
During the Clinton impeachment, I stated in an interview that I did not think that a technical crime was required, but that I did think that abusing trust could be considered. I said that. At that time, I had not done the extensive research on that issue because it was irrelevant to the Clinton case and I was not fully aware of the compelling counter arguments. So I simply accepted the academic consensus on an issue that was not on the front burner at the time. But because this impeachment directly raises the issue of whether criminal behavior is required, I have gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit the criteria for impeachment to criminal type acts akin to treason, bribery, and they certainly did not intend to extend it to vague and open-ended and non-criminal accusations such as abuse of power and obstruction of Congress.
I published this academic conclusion well before I was asked to present the arguments to the Senate, in this case, might switch in attitude purely academic, purely nonpartisan. Nor am I the only participant in this proceeding who has changed his mind. Several members of Congress, several Senators express different views regarding the criteria for impeachment when the subject was President Clinton than they do now. When the president was Clinton, my colleague and friend Laurence Tribe tribe, who is advising Speaker Pelosi now, wrote that a sitting president could not be charged with a crime. Now he’s changed his mind. That’s what academics do and should do based on new information. If there are reasonable doubts about the intended meaning of high crimes and misdemeanors, Senators might consider resolving these doubts by reference to a legal concept known as Lenity. Lenity goes back to hundreds of years before the founding of our country and was a concept in Great Britain relied upon by many of our own Justices and Judges over the years. It was well known to the legal members of the founding generation.
It required that in construing a criminal statute that is capable of more than one reasonable interpretation, the interpretation that favors the defendant should be selected unless it conflicts with the intent of the statute. It has been applied by Chief Justice Marshall Justice Oliver Wendell Holmes, Felix Frankfurter, Justice Antonin Scalia and others. Now applying that rule to the interpretation of high crimes and misdemeanors would require that these words be construed narrowly to require criminal like conduct akin to treason and bribery rather than broadly to encompass abuse of power and obstruction of Congress. In other words, if Senators are in doubt about the meaning of high crimes and misdemeanors, the Rule of Lenity should incline them toward accepting a narrower rather than a broad interpretation, a view that rejects abuse of power and obstruction of Congress as within the constitutional criteria. Now, even if the rule of Lenity is not technically applicable to impeachment, that’s a question, certainly the policies underlying that rule are worthy and deserving of consideration as guides to constitutional interpretation.
Now here I am making, I think, a very important point. Even if the Senate were to conclude that a technical crime is not required for impeachment, the critical question remains and it’s the question I now want to address myself to, do abuse of power and obstruction of Congress constitute impeachable offenses? The relevant history answers that question clearly in the negative. Each of these charges suffers from the vice of being quote, “So vague a term that they will be equivalent of tenure at the pleasure of the Senate.” To quote again, the father of our Constitution, abusive of power is an accusation easily leveled by political opponents against controversial presidents.
In our long history, many presidents have been accused of abusing their power. I will now give you a list of presidents who in our history have been accused of abusing their power, who would be subject to impeachment under the House Manager’s view of the Constitution. George Washington, refusal to turn over documents related to the Jay Treaty. John Adams signing and enforcing the alien and sedition laws. Thomas Jefferson purchasing Louisiana without congressional authorization. I’ll go on. John Quincy Adams, Martin Van Bern, John Tyler, arbitrary despotic and corrupt use of the veto power. James Polk, here I quote Abraham Lincoln, Abraham Lincoln accused Polk of abusing his power of his office, contemptuously disregarding the constitution, usurping the role of Congress and assuming the role of dictator. He didn’t seek to impeach him. He just sought to defeat him. Abraham Lincoln. Abraham Lincoln was accused of abusing his power for suspending the writ of habeas Corpus during the Civil Wa.
President Grant, Grover Cleveland, William McKinley, Theodore Roosevelt, William Taft, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Jimmy Carter, Ronald Reagan quote, “Concerning Iran contract… And now I say Professor Laurence Tribe said the following quote, “There in lies what appears to be the most serious breach of duty by the president, a breach that may well entail an impeachable abuse of power.” George H.W. Bush. The following was released today by the Clinton Gore campaign. In the past weeks, Americans had begun to learn the extent to which George Bush and his administration have abused their governmental power for political purposes. That’s how abuse of power should be used, as campaign rhetoric. It should be in statements issued by one political party against the other. That’s the nature of the term. Abuse of power is a political weapon and it should be leveled against political opponents. Let the public decide. That’s true. Barack Obama, the House committee on the judiciary, held an entire hearing entitled Obama Administration’s abuse of power. Now by the standards applied to earlier presidents, nearly any controversial act by a chief executive could be denominated abuse of power. For example, past presidents have been accused of using their foreign policy, even their war powers, to enhance their electoral prospects. Presidents often have mixed motives that include partisan personal benefits along with the national interest. Professor Josh Blackman, constitutional law professor, provided the following interesting example.
Quote, “In 1864 during the height of the Civil War, President Lincoln encouraged General William Sherman to allow soldiers in the field to return to Indiana to vote. What was Lincoln’s primary motivation?” The professor asks, “He wanted to make sure that the government of Indiana remained in the hands of Republican loyalists who would continue the war until victory. Lincoln’s request risks undercutting the military effort by depleting the ranks. Moreover, during this time, soldiers from the remaining states face greater risks than did the returning Hoosiers.” The professor continues. “Lincoln had dueling motives. Privately he sought to secure victory for his party, but the president as a president and as a party leader and Commander in Chief made a decision with life or death consequences.” Professor Blackman drew the following relevant conclusion from this and other historical events. He said, “Politicians routinely promote their understanding of the general welfare while in the back of their minds considering how these actions will affect their popularity. Often the two concepts overlap. What’s good for the country is good for the official’s reelection. All politicians,” he said, “understand that dynamic.” Like all human beings, presidents and other politicians persuade themselves that their actions seen by their opponents as self-serving are primarily in the national interest. In order to conclude that such mixed motive actions constituted abuse of power, opponents must psychoanalyze the president and attribute to him a singular self-serving motive.
Such a subjective probing of motives cannot be the legal basis for a serious accusation of abuse of power that could result in the removal of an elected president. Yet this is precisely what the managers are claiming. Here’s what they say, quote, “Whether the president’s real reason, the ones actually in his mind are at the time legitimate.” What a standard. What was in the president’s mind? Actually in his mind? What was the real reason? Would you want your actions to be probe for what was the real reason why you acted? Even if a president were… It clearly shows in my mind that the framers could not have intended this psychoanalytic approach to presidential motives to determine the distinction between what is impeachable and what is not.
Here I come to a relevant and contemporaneous issue. Even if a president, any president, were to demand a quid pro quo as a condition to sending aid to a foreign country, obviously-
As a condition to sending aid to a foreign country, obviously a highly disputed matter in this case that would not by itself constitute an abuse of power. Consider the following hypothetical case that is in our news today as the Israeli prime minister comes to the United States for meetings. Let’s assume a Democratic president tells Israel that foreign aid authorized by Congress will not be sent or an Oval Office meeting will not be scheduled unless the Israelis stop building settlements. Quid pro quo. I might disapprove of such a quid pro quo demand on policy grounds, but it would not constitute an abuse of power. Quid pro quo alone is not a basis for abusive power. It’s part of the way foreign policy has been operated by presidents since the beginning of time. The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the President was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase, abusive power, as a constitutionally permissible criteria for the removal of a president.
Now it follows, it follows from this that if a president, any president were to have done with the Times reported about the context of the Bolton manuscript, that would not constitute an impeachable offense. Let me repeat, nothing in the Bolton revelations, even if true would rise to the level of an abusive power or an impeachable offense. That is clear from the history, that is clear from the language of the constitution, you cannot turn conduct that is not impeachable into impeachable conduct simply by using words like quid pro quo and personal benefit. It is inconceivable that the framers would have intended so politically loaded and promiscuously deployed a term as abuse of power to be weaponized as a tool of impeachment. It is precisely the kind of vague, open-ended and subjective term that the framers feared and rejected. Consider the term maladministration. I want to get back to that term because it’s the term that was explicitly rejected by the framers. As you recall, it was raised and then Madison objected to it. It was then withdrawn and it is not part of the criteria. We all agree that maladministration is not a ground for impeachment. If the House were to impeach on maladministration, it would be placing itself above the law. There’s no doubt about that because the framers explicitly rejected maladministration. Now what does maladministration? It’s comparable in many ways to the abuse of power. Maladministration has been defined to include abuse, corruption, misrule dishonesty, misuse of office and misbehavior. Professor Buoy in his article in today’s New York Times equates abuse of power with quote, misconduct in office, misconduct in office. Thus supporting the view that when the framers rejected maladministration they also rejected abuse of power as a criteria for impeachment.
Blackstone denominated maladministration as a high misdemeanor that is punishable by the method of parliamentary impeachment wherein such penalty short of death or inflicted, he included among those, imprisonment. In other words, you could be in prison for maladministration. Despite this British history, Madison insisted that it’d be rejected as a constitutional criteria for impeachment because, and I quote again, so vague a term will be equivalent to tenure during the pleasure of the Senate. And it was explicitly rejected and withdrawn by its sponsor. This important episode in our constitutional history supports the conclusion that the framers did not accept whole hog, the British approach to impeachment as some have mistakenly argued. Specifically, they rejected vague and open-ended criteria. Even those carrying punishment of imprisonment in Britain because they did not want to turn our new Republic into a parliamentary style democracy in which the chief executive can be removed from office simply by a vote of non-confidence. That’s what they didn’t want.
Sure, nobody was above the law, but they created a law. They created a law by which Congress could impeach and they did not want to expand that law to include all the criteria that permitted impeachment in great Britain. The framers would never have included and did not include abuse of power as an enumerated and defined criteria for impeachment. By expressly rejecting maladministration, they implicitly rejected abuse. Nor would the framers have included obstruction of Congress as among the enumerated and defined criteria. It too vague, indefinable, especially in a constitutional system in which according to Hamilton in Federalist 78, the legislative body is not themselves, the constitutional judge of their own powers. And the construction they put on them is not conclusive upon other departments. Instead, he said the courts were designed as an intermediate body between the people as declared in the constitution and the legislature in order to keep the ladder within the limits assigned to their authority.
Under our system of separation of powers and checks and balances, it cannot be an obstruction of justice and some other lawyers have made this argument today more thoroughly. For a president to demand judicial review of legislative subpoenas before they are complied with the legislature is not the constitutional judge of its own powers including the power to issue subpoenas. The courts were designated to resolve disputes between the executive and legislative branches and it cannot be an obstruction of Congress to invoke the constitutional power of the courts to do so.
By their very nature, words like abuse of power and obstruction of Congress are standardless. It’s impossible to put standards into words like that. Both are subjective matters of degree and amenable to varying partisan interpretations. It’s impossible to know in advance whether a given action will subsequently be deemed to be on one side or the other of the line. Indeed, the same action with the same state of mind can be deemed abusive or obstructive when done by one person but not when done by another. That is the essence of what the rule of law is not. When you have a criteria that could be applied to one person one way and another person in another way and they both fit within the terms abuse of power.
A few examples will illustrate the dangers of standardless impeachment criteria. My friend and colleague, Professor Noah Feldman, has argued that a tweet containing what he believed was false information could quote, get the current president impeached if it is part of a broader course of conduct. A tweet. Professor Allan Lichtman has argued that the President could be impeached based on his climate change policy, which he regards as a crime against humanity. I have to tell you, I disagree with our President’s climate change policy as I do with many of his other policies, but that’s not a criteria for impeachment. That’s a criteria for deciding who you’re going to vote for. If you don’t like the President’s policies on climate change, vote for the other candidate. Find a candidate who has better policies on climate change. If you don’t like the President’s tweets, find somebody who doesn’t tweet. That will be easy.
But don’t allow your subjective judgments to determine what is and is not an impeachable offense. Professor Tribe, as I mentioned, argued under the criteria of abusive power President Ronald Reagan should have been impeached. Would any American today except the legal system in which prosecutors could charge a citizen with abusive conduct? Can you imagine a crime, abusive conduct? Fortunately, we have constitutional protections against a statute that, “either forbids or requires the doing of enact and terms so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application.” Very difficult to imagine criteria that fit this description of what the Supreme Court has said violates the first essentials of due process more closely than abuse of power and obstruction of Congress. Another constitutional rule of construction is that when words can be interpreted in an unconstitutionally vague manner or in a constitutionally precise manner, the latter must be chosen.
You are entitled to use that rule of interpretation as well in deciding whether or not obstruction of Congress or abuse of power can be defined as fitting within the criteria of high crimes and misdemeanors. For the Senate to remove a duly elected president on vague non-constitutional grounds such as abuse of power or obstruction of Congress would create a dangerous precedent and be construed in the words of Senator James N. Grimes into approval of impeachment as part of future political machinery. This is a realistic threat to all future presidents who serve with opposing legislative majorities that could easily concoct vague charges of abuse or obstruction. The fact that a long list of presidents that were accused of abuse power were not impeached demonstrates how selectively this term has and can be used in the context of impeachment. I’m sorry, House managers, you just picked the wrong criteria. You pick the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents. The idea of abuse of power and obstruction of Congress are so far from what the framers had in mind that they so clearly violate the Constitution and would place Congress above the law. Now, nor are these vague, open-ended and unconstitutional articles of impeachment that were charged here, they’re not saved by the inclusion in these articles of somewhat more specific but still non-criminal type conduct. The specifications are themselves vague, open-ended, and do not charge impeachable offenses. They include such accusations as compromising national security, abusing the power of the presidency, violating his oath of office. In any event, it’s the actual articles that charge abuse of power and obstruction of justice, neither of which are in the Constitution, it’s the actual articles on which you must all vote, not on the more specific list of means included in the text of the articles. An analogy to a criminal indictment might be helpful.
If a defendant were accused of dishonesty, committing the crime of dishonesty, it wouldn’t matter that the indictment listed as, well, the means toward dishonesty, a variety of far more specific potential offenses. Dishonesty is simply not a crime. It’s too broad a concept. It’s not in the statute. It’s not a crime. The indictment would be dismissed because dishonesty is a sin and not a crime even if the indictment included a long list of more specific acts of dishonesty. Nor can impeachment be based on a bunching together of non unimpeachable sins, none of which standing alone meet the constitutional criteria. Only if at least one constitutionally authorized offense is proved can the Senate then consider other conduct in deciding the discretionary issue of whether removal is warranted? In other words, your jurisdiction is based on commission of an impeachable offense. Once that jurisdictional element is satisfied, you have broad discretion to determine whether removal is warranted and you consider a wide array of conduct, criminal and non-criminal. But you have no jurisdiction to remove unless there is at least one impeachable offense within the meaning of high crimes and misdemeanors.
In the three days of argument, the House managers tossed around words, even vaguer and more open-ended than abuse and obstruction to justify their case for removal. These included trust, truth, honesty, and finally, right. These aspirational words of virtue are really important, but they demonstrate the failure of the managers to distinguish the alleged political sins from constitutionally impeachable offenses. We all want our presidents and other public officials to live up to the highest standards set by Washington and Lincoln though both of them were accused of abuse of power by their political opponents. The framers could have demanded that all presidents must meet Congressman Schiff’s, standards of being honest, trustworthy, virtuous and right in order to complete their terms but they didn’t because they understand human fallibility. As Madison put it, “if men were angels, no government would be necessary.” And then speaking of presidents and other public officials, “if angels were to govern men, neither internal nor external controls and government would be necessary.” The framers understood that if they set the criteria for impeachment too low, few presidents would serve their terms instead, their tenure would be at the pleasure of the legislature as it was and still is in Britain
So they set the standards and the criteria high requiring not sinful behavior, not dishonesty, distrust or dishonor, but treason, bribery or other high crimes and misdemeanors. I end this presentation today with a nonpartisan plea for fair consideration of my arguments and those made by counsel and managers on both sides. I willingly acknowledge that the academic consensus is that criminal conduct is not required for impeachment and that abuse of power and obstruction of Congress are sufficient. I have read and respectfully considered the academic work of my many colleagues who disagree with my view and the few who accept it. I do my own research and I do my own thinking and I have never bowed to the majority on intellectual or scholarly matters. What concerns me is that during this impeachment proceeding, there have been few attempts to respond to my arguments and other people’s arguments opposed to the impeachment of this president.
Instead of answering my arguments and those of Justice Curtis and Professor Bowie and others on their merits and possible demerits, they have simply been rejected with negative epithets. I urge the senators to ignore these epithets and to consider the arguments and counter arguments on their merits, especially those directed against the unconstitutional vagueness of abuse of power and obstruction of Congress. I now offer a criteria for evaluating conflicting arguments. The criteria that I offer, I have long called the shoe on the other foot test. It is a colloquial variation of the test proposed by the great legal and political thinker and my former colleague, John Rawls. It is simple in its statement but difficult in its application. As a thought experiment, I respectfully urge each of you to imagine that the person being impeached or of the opposite party of the current president, but that in every other respect, the facts were the same.
I have applied this test to the constitutional arguments I am offering today. I would be making the same constitutional arguments in opposition to the impeachment on these two grounds, regardless of whether I voted for or against the president, and regardless of whether I agreed or disagreed with his or her policies. Those of you who know me know that that is the absolute truth. I am nonpartisan in my application of the Constitution. Can the same be said of all of my colleagues who support this impeachment, especially those who oppose the impeachment of President Bill Clinton. I first proposed the shoe test 20 years ago when evaluating the Supreme Court’s decision in Bush versus Gore asking the justices to consider how they would have voted, had it been candidate Bush rather than Gore, who was several hundred votes behind and seeking a recount. In other words, I was on the other side of that issue.
I thought the Supreme Court in that case favored the Republicans over the Democrats and I asked them to apply the shoe on the other foot test. I never respectfully asked this distinguished chamber to consider that eristic test in evaluating the arguments you have heard in this historic chamber. It is an important test because how you vote on this case will serve as a precedent for how other senators of different parties, different backgrounds and different perspectives vote in future cases. Allowing a duly elected president to be removed on the basis of the standardless, subjective, ever changing criteria, abuse of power and obstruction of Congress, risks being construed in the words of Senator Grimes, a Republican Senator from Iowa who voted against impeaching President Andrew Johnson ,into approval of impeachments as part of future political machinery. As I begin, I will close. I am here today because I love my country.
I love the country that welcomed my grandparents and made them into great patriots and supporters of the freest and most wonderful country in the history of the world. I love our Constitution, the greatest and most enduring document in the history of humankind. I respectfully urge you not to let your feelings about one man, strong as they may be, to establish a precedent that would undo the work of our founders, injure the constitutional future of our children and cause irreparable damage to the delicate balance of our system of separation of powers and checks and balances. As Justice Curtis said during the trial of Andrew Johnson, “a greater principle is at stake than the fate of any particular president.” The fate of future presidents of different parties and policies is also at stake as is the fate of our constitutional system. The passions and fears of the moment must not blind us to our past and to our future.
Hamilton predicted that impeachment would agitate the passions of the whole community and enlist all of their animosities, partialities, influence and interest on one or the other. The Senate, the Senate was established as a wise and mature check on the passions of the moment with quote, a deep responsibility to future times. I respectfully urge the distinguished members of this great body to think beyond the emotions of the day and to vote against impeaching on the unconstitutional articles now before you. To remove a duly elected president and to prevent the voters from deciding his fate on the basis of these articles would neither to do justice to this president nor to our enduring constitution. There is no conflict here. Impeaching would deny both justice to an individual and justice to our Constitution. I thank you for your close attention. It has been a great honor for me to address this distinguished matter … this body on this important matter. Thank you so much for your attention.