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How High Should the Standards for Impeachment Be?
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 General
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I fear that Ms. Althouse is stuck in an academic frame of mind. I see her point, but I think it’s unfair to say he didn’t provide a “workable standard.” He was not teaching a college class with 20 hours of classroom time over several weeks. And of course, there is the danger of giving examples and others taking those as limitations rather than guidelines. I’ll stay with Dershowitz’s understanding and think he explained the Founders’ intent very well.
With only a couple of artful word changes, this could have been written about an impeachable offense. Crime or no crime, we do not want to usher in a day when impeachment is simply a matter of what party is in the White House and what party controls Congress. We know an impeachable offense when we see it and it is a very high bar. This isn’t it.
I have listened to some of Alan Dershowitz’s remarks to the Senate, and I think he is exactly right to tie this impeachment effort to the 1998 effort to impeach Clinton. The allegations against Clinton were serious. However, they all stemmed from a crime of personal behavior, not treason. That’s how the Democrats including Dershowitz saw it at the time. This is the constitutional point that Dershowitz wants to bring to the forefront of the current debate. I think it is a wise strategy. He makes the point that at the time the impeachment clause was written, the debate over it concerned how loose or tight the language and intent should be. Those who wanted infinite interpretations were refuted by Hamilton who said that such a lack of specificity would lead to partisan impeachment efforts over policy.
Listening to Dershowitz made me think back to the original phone call between the Ukrainian president and President Trump. There was no crime committed in it. Trump did not try to extort the Ukrainian president’s cooperation by threatening him, Joe Biden at that time was only one of sixteen Democratic Party candidates for president so it was not Trump’s attempt to destroy his political foes in the manner of a Communist dictator, and it was not treason because the Ukrainian president and President Trump were not conspiring to harm America in any way nor is Ukraine an enemy of the United States.
I think Dershowitz is correct to bring this back to the 1998 impeachment of Clinton in that the underlying action of the president was not a crime in any way.
Now we could argue about Clinton. Monica Lewinsky was only twenty years old. And he certainly lied under oath about his actions. But the Democrats have always argued that these charges were piled onto a crime that wasn’t really a crime. It was simply Clinton’s personal–albeit disgusting–behavior, and they had a point.
This is terribly important because no one wants to see the impeachment process discarded. Should a president ever sell state secrets to our enemies or raise a foreign army against us (Oliver Cromwell versus King Charles I in 1648), we need to be able to act quickly and decisively. Dershowitz and the rest of us want the process available. But it was created to protect the United States from a president’s egregious acts of treason. I’m sure that this type of betrayal was more common in old Europe where the royal families were so connected through marriage. It was recent history for our nation’s founders.
With due respect to Althouse, if she thinks Dershowitz didn’t “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” then she didn’t watch his whole presentation.
Dershowitz clearly defined “high Crimes and Misdemeanors” both historically (citing Blackstone) and in contemporary terms, and in Constitutional — that is, timeless — terms.
Impeachment does require actual crimes.
We know this because the Constitution literally states a president can be impeached for only “Treason, Bribery, and other high Crimes and Misdemeanors.” Blackstone says crimes and misdemeanors are synonyms. This is why “high” is not capitalized but “Crimes and Misdemeanors” are capitalized. In the sentence, “high” is modifying both “Crimes” and “Misdemeanors.” Dershowitz pointed out that there were capital misdemeanors. Meaning, you could be put to death for being convicted of a misdemeanor. The founders therefore can not be understood to have meant “Misdemeanor” to mean “anything a majority in the House wants.”
Furthermore, Dershowitz also pointed to multiple times in the Constitution that impeachment is referenced as on the same level as crimes. For instance, the president has the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Logcally, then, impeachment is group with “Offences against the United States.” Also, an impeached person can be later prosecuted for the thing they were impeached for: “The Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” So the founders intended for impeachment to be for crimes that could be prosecuted, “according to law,” after removal from office. Article II, section 2, states: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” That’s because in cases of impeachment, it’s the Senate that holds the trial. Impeachment is clearly placed on the same level as “Crimes.”
One last piece of evidence from the actual words that are used in the Constitution: The president or other civil officers of the United States may only be removed from offices if they are convicted in a trial by a 2/3 majority of senators.
Trump is the first president to be impeached for a non-crime. If the House really could impeach a president for combing his hair the wrong way, why’d it take 230 years for the House to impeach a president for a non-crime?
I like Althouse, but she has a tendency to get lost in the weeds. She was a law professor, after all. She didn’t live in the “real world,” so to speak. Everything for her was theory.
In order to make our way through this issue we need to engage in whataboutism. In other words, we can’t consider President Trump’s actions only by some isolated, austere, abstract standard, but also in relation to how we have made these judgments in the case of previous (and future) administrations.
In fairness to Professor Althouse her blog was a response to a commenter’s question as to what “grade” she would give Dershowitz. And so she stated the kind of question she would formulate to elicit a response upon which to provide a grade. In the course of making her post she stated that she did not agree with Dershowitz’ conclusion without stating further by how much and it what way. And consequently she did not address the fundamental question that the Senate is answering: Have impeachable offenses been charged? Dershowitz says no, and Althouse might agree even if she would not set the standard as high as does Dershowitz and/or for the reasons he stated.
Yes, Dershowitz final argument was to apply “the shoe on the other foot” test. He had already cited the answers given by the Democrats when that was the case. And Mike Cipollone concluded the President’s defense this morning by playing videos of Nadler, Lofgren, Schumer, Menendez and others making the very points that Dershowitz laid out and the consequences of lowering the bar.
Too bad a pundit liking “the crease in his slacks” wasn’t an impeachable offense . . .
Maybe some day a President will be impeached and removed from office. Then we will have a precedent for the law professors to dissect.
Althouse was relatively harsh last week in grading the performance of House Democrats in their presentation to the Senate. But I’ve come to see her as sort of the Daniel Patrick Moynihan of the legal/political blogging world, in that she often will seemingly hit all the points on why some issue or some politician is wrong and then turn around and in the end support what she had been arguing against a day or so earlier.
I suggest that’s the mark of a good advocate. And why a lot of people dislike lawyers.
Susan “I fear that Ms. Althouse is stuck in an academic frame of mind. I see her point, but I think it’s unfair to say he didn’t provide a “workable standard.” “
Yep.
Her argument seems like legal sophistry to me. This is a real case with very real consequences, not an imaginary classroom exercise. She is nitpicking at Dershowitz’s argument without providing a “workable standard” of her own as an alternative from which the case could move forward and be judged. I give her grading exercise a big flat “F”.
What the Democrats identified as their Impeachable offenses were not crimes identified by statute, and were alleged offenses that were arguably not an offense against anyone but rather an exercise in appropriate and Constitutional power that the Democrats did not like. The problem with coming up an Impeachable offense that is not a statutory crime is that how is that offense to be judged? By what standard? Removal from office should require a very serious offense to force an overturning of the electoral judgement of the people; how are we to come to judge the necessary seriousness of such a made up crime? In the end the only standard of judgement of such made up crimes is that the judgement will be reduced to pure politics, which is absolutely what the Framers did not want.
True. Though reading her blog, it makes it hard to determine the difference between posts involving politics that are based on core beliefs and posts which are merely intellectual exercises in arguing the contrarian viewpoint. It does make the blog interesting, but frustrating.
I’ve been a big fan of Ann Althouse for a long time. Smart and charming.
We have something in common; I went to school at UW Madison, and lived and went to classes just a few blocks from where she lives. So I get all nostalgic with her local photos and stories.
This particular blog entry, however, is weak.
I thought the Dershowitz argument was pretty clear. Looking for inferences of bad intent on otherwise lawful actions or minimal significance is a horrendous precedent.
There would be grounds for impeachment if (a) Trump knew or should have known the Bidens were innocent as could be; (b) asked Zelensky to dirty them up with false charges prior to the election and (c) promised release of aid in return. Nothing close to that happened although that is the implicit narrative that the Democrats/MSM are selling.
Followed a 100,000+ word post by Richard Epstein – and a ten-hour Law Talk . . .
I look forward to reading “Riparian Rights and High Crimes: A Madisonian Interpretation of Legislative Supremacy.”
…as based on Roman Law.
Trump was impeached because Ahab can’t let go of muh russia.
https://www.realclearpolitics.com/articles/2020/01/28/democrats_dubious_impeachment_subtext_of_treason_142243.html
After reading Althouse on and off for years, it’s my impression that Althouse acts as a contrarian merely to generate outrage, clicks and Amazon purchases. She often takes positions that are patently absurd, even for a law professor. I know because I would often get hooked into some of her more outlandish takes. I can’t comment on her legal opinions but her inconsistency on other issues eventually led me to believe it was a scam. Plus in the comments on the link provided I’ve learned that she doesn’t think The Babylon Bee is funny. I rest my case.
If someone doesn’t think the Babylon Bee is funny, odds are they’re a flaming liberal – or they have no sense of humor in general . . .
Yeah, I don’t think I’d go so far as to say she’s a scam. But she is certainly idiosyncratic. The fact that she doesn’t find the Babylon Bee funny and thinks it’s legitimate for WaPo and other so called “fact checkers” to fact check them is definitely a mark against her. Plus, she voted for Hillary. But, I do want to repeat that I generally like her blog. I just don’t always agree with her takes. For instance, the reason she gave for having voted for Hillary was that she wanted a “boring” candidate. So….yeah, not sure how that works, considering Hillary murders someone every few months. 🤣
Good point, @Max. Yes, not really a scam. It’s hardly a scam for someone who is intelligent, bright and thoughtful to promote discussion on her blog even if I’m suspect of some of her opinions. It’s the unconventional thinking, genuine or not, that makes her blog so lively. Just don’t get me started on her annoyingly coy discussions surrounding her voting record.
A person can be entertaining and informative, even if you don’t agree with everything he says. Heck, I only agree with Rush 99.99% of the time . . .
The only person I agree with 100% of the time is my wife. 😉
Amen to that Bro!