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The Democrats have seemingly abandoned the position that President Trump did a criminal act — an act defined in statutory or common law as a crime. Instead, their constitutional scholars are saying that a consensus of scholars agree that a crime need not be committed for impeachment and removed.
Prof. Alan Dershowitz is going to argue against that position on the theory that once you have no restriction to statutory and common law crimes, it is a violation of due process. Due process requires that you be on notice of a prohibited act, which is impossible if no crime is involved, and thus it makes policy disagreements into impeachable offenses — something that the Founders specifically determined not to do.
Prof. Jonathan Turley testified to the House Intelligence Committee and in writing subsequent to his testimony to the effect that impeachment can be based on something not a statutory or common-law crime, but has similar concerns to those expressed by Dershowitz about the imprecision of what that might be. Further, Turley has been clear that the two Articles passed by the House are not the sort of non-crimes upon which impeachment and removal should be based.
The significance of the conceding that no crime has been committed is that it opens up the House impeachment to a motion to dismiss in the Senate. And that is precisely what Dershowitz will be arguing — that a motion to dismiss should be made and granted. But let’s assume that Dershowitz is wrong. And, if so, what is the standard for a president’s removal when no crime is alleged?
Maybe it’s like obscenity, we can’t define it precisely but we know it when we see it. OK, so how do we know whether it is something that we will know when we see it? One way is to test whether the acts alleged are sui generis, something unique to this president. That is, something that no other president has done. After all, if another president has done such a thing and Congress did not respond by impeaching the president then it can’t be an impeachable offense, right?
I’m not a particular fan of “whataboutism” as a defense for bad behavior. But when your guy gets a pass and their guy gets impeached, it sounds an awful lot like a policy disagreement, not an impeachable offense.
Seems like Dershowitz’s argument is making more sense — if your objective is to carefully, prayerfully, and solemnly defend the Constitution. Right, Nancy?