In his defense of the President before the Senate, Alan Dershowitz made one of the most incompetent arguments of perhaps his entire career. It was incompetent, not because Dershowitz had not done his homework or because he had not thought of some response that could undo his arguments. He had. But his arguments were incompetent because they failed to obfuscate one obvious truth upon which the GOPs entire case rests: namely, that not all crimes are written down as statutes in the law, and we call these kinds of crimes “common-law” crimes.
To see how Dershowitz failed here, let’s start by looking at the Constitution. The two Articles of Impeachment that the House put to the Senate are for Abuse of Power and Obstruction of Congress. The GOP has correctly pointed out that these are not explicitly enumerated by the Constitution as impeachable acts. Here is what the Constitution says:
Article 2, Section 4: “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.”
Dershowitz focuses on the words “Treason, Bribery, or other high Crimes and Misdemeanors.” Citing Hamilton, Dershowitz argued that officials cannot be impeached unless the actions in question fall within these three categories.
“Here’s what [Hamilton] 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 [or] 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 [whether or not] Clinton’s alleged crime could be classified as a high crime in light of its personal nature.”
Dershowitz did something slippery here. First, he wanted us to accept that, in the view of the Founders, a President could only be impeached for crimes, not for “misconduct of public men and the abuse or violation of some public trust.” Second, he wanted to accept that the President could only be impeached for “high crimes,” which in his view are essentially political as opposed to personal crimes. From this point, Dershowitz went on to argue that the Articles of Impeachment at best fit the profile of what Hamilton called ‘abuse or violation of some public trust’ and are therefore not sufficient grounds for impeachment. But according to Dershowitz, Trump’s actions were not even an ‘abuse or violation of some public trust’ because they were in fact taken in the public interest, which by definition is in the public trust. This set up his now infamous claim:
“Every public official that I know believes that his election is in the public interest. And mostly you're right. Your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”
Therefore, Dershowitz concludes, neither “abuse of power” nor “obstruction of justice” are impeachable because the are not high crimes. Moreover, Trump’s actions were not even an abuse of public trust (which, remember, is not impeachable anyway, according to Dershowitz) because Trump took those actions in the public interest. That is Dershowitz’s argument in a nutshell.
Later on in his speech, Dershowitz referenced one “Professor Bowie” as a key scholar who agreed with this argument. Dr. Nikolas Bowie, an assistant professor at Harvard Law School, wrote of his surprise at learning of Dershowitz’s misinterpretation of his work in an op-ed in the New York Times the following day, saying that while “watching CNN last week, I learned that I’m partly responsible for President Trump’s legal defense… 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.”
Bowie had come to these conclusions by analyzing the work of Justice Benjamin Robbins Curtis, and Dershowitz had misinterpreted Bowie’s work. Bowie went on to explain:
“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.”
But Dershowitz had apparently anticipated this rejoinder by mentioning earlier in his speech that common-law did not fall under federal jurisdiction. Here is Dershowitz:
“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.”
Dershowitz’s implication here is that even if the articles of impeachment were based on common-law crimes, these do not fall under federal jurisdiction, and therefore outside of the jurisdiction of the Senate trial, which is, after all, a federal trial. But Bowie shot this down:
“As for “obstruction of Congress,” that’s not only a common-law crime. Versions of the crime have also been listed in the federal criminal code since the 19th century. Common-law crimes aren’t as common as they once were because they generally have been replaced by statutes, especially at the federal level. The Supreme Court long ago observed that Congress has never passed a law giving all federal district courts jurisdiction to hear common-law crimes. But in making this observation, the Supreme Court cast no doubt on Congress’s power to punish someone for a common-law crime. Since that decision, Congress itself has repeatedly arrested and punished people for violating the unwritten crimes of contempt and bribery in contexts where the federal contempt of Congress statute doesn’t apply.”
As Bowie points out, both articles of impeachment reference crimes that are impeachable. Dershowitz was wrong. Case closed.