Those who have been reading my posts and comments no doubt have the impression that I am persuaded by Professor Alan Dershowitz’s arguments about the standard for impeachment. That is, that impeachment should only be brought when the President has committed treason, bribery, or another crime defined in the statute where the people and the public are the victims of that crime (as opposed to a crime flowing from conduct with one or more identifiable persons who are the victims of the offense). Dershowitz argues that to have a lesser standard is to not put on notice the president as to what conduct is impeachable. (Pat Philbin supplemented Dershowitz’s presentation this morning by analogizing the “non-crime” standard as being equivalent to a constitutionally prohibited Bill of Attainder.)
Professor Ann Althouse has considered Dershowitz’ presentation and has posted as follows:
I was not convinced by D’s argument and on reflection, I disagree with him. It would take some trouble to explain why, and I may do that later.
Further on she hinted on what those explanations might be (my emphasis added):
Here’s how I graded when I graded students. I gave a question, and I judged them based on how they answered the question asked. I gave zero points for anything not responsive to my question, and then I converted the points to letter grades by following a required curve. So letter grades didn’t mean too much to me. It was all comparative. But the points meant a lot, and you only got points for understanding the question and giving me material that got at the question.
I didn’t give Dershowitz a question. To think in my lawprofessorly way about grades, I would have to infer a question that I might have asked.
I think that question should be: Restate the constitutional phrase “high crimes and misdemeanors” into a workable standard that the House and the Senate can and should use today and in the future in all cases of presidential impeachment. Explain your choice using all of the methodologies of constitutional interpretation that you deem appropriate (and explain why you are deciding this approach to interpretation is appropriate).
Do you think he did that? Read the transcript.
I infer from her question that Professor Althouse is taking the position that impeachment can be rendered meaningless by too high a standard and that the ability to predetermine the precise standards for impeachment is recognized as undoable by the predicate word “other” before the words “high crimes and misdemeanors.” In other words, Althouse would demerit any argument based on certainty.
And that is fair. Dershowitz argued (in my view) not for certainty but for reasonable notice. He also admitted that his arguments should be “considered” and are not inarguable.
But he also was clear that the decision on the standards used is not an academic exercise. There are real consequences to a real nation to making impeachment a political tool routinely employed whenever the White House and the House of Representatives are controlled by opposing parties. And thus the standard should be high enough to ensure that impeachment is only employed in rare and unusual circumstances. President Trump is unusual, but his policy actions are not (even as they are decried and resisted by his political opponents). As such, there is not an unusual circumstance to justify impeachment.Published in