Dismiss The Articles of Impeachment.

Some were surprised when Alan Dershowitz, a professor emeritus at Harvard Law School, agreed to join President Trump’s legal team for his impeachment trial. But keen observers weren’t; Dershowitz published an entire book in 2018 that demolished the “collusion” case for impeachment.

Even as the Democrats changed their focus to Ukraine, Dershowitz has remained steadfastly opposed to impeachment. On Sunday, he explained his position to ABC’s George Stephanopoulous: even if every fact alleged by House Democrats was true, the Senate still should still dismiss the articles of impeachment.

After Dershowitz’s appearance, the Democrats’ spin machine revved up, and on Monday morning, a slew of op-eds were published attacking Dershowitz’s argument. In The Washington Post, left-wing commentator Jennifer Rubin argued, without evidence, that Dershowitz’s argument was “made in bad faith,” and went on to assert that it was “not a questionable argument. It is a false one.” Laurence Tribe went even further, asserting that Dershowitz’s argument was “bogus,” and that he “should not be allowed” to use it to “mislead the American public or the Senators weighing his fate.”

One would think that if Dershowitz’s argument were so weak, Tribe wouldn’t try so hard to silence him.

One would think that if Dershowitz’s argument were so weak, Rubin and Tribe wouldn’t try so hard to silence him. But there’s a reason that Democrats are running scared: despite all their bluster, they have failed to allege a violation of established law, i.e. a “crime” or “misdemeanor.”  Such an allegation has been present in every other impeachment in history—but not here.

And the worst isn’t over for Democrats. Dershowitz’s appearance was only the warning shot: President Trump’s lawyers published their trial brief this afternoon, a 100+ page salvo attacking every one of the Democrats’ arguments for impeachment. Their very first argument? That the articles of impeachment must be dismissed for failure to allege an impeachable offense.

Dershowitz and the rest of President Trump’s legal team are right on the money. In the United States, there can be no “high crimes” without law. There is simply no excuse for any Republican Senator who considers themselves a constitutionalist or a textualist to vote to impeach President Trump.

[caption id="attachment_181329" align="aligncenter" width="1920"] Laurence Tribe.[/caption]

WE BEGIN WITH THE TEXT

Article II, Section IV of the Constitution allows for impeachment for “treason, bribery, and other high crimes and misdemeanors.” House Democrats have not impeached Trump for treason or bribery. Instead, they insist that “abuse of power” and “obstruction of Congress” constitute “high crimes and misdemeanors.”

There is no statute that criminalizes “abuse of power.” There is no common-law crime or misdemeanor that goes by that name. There is absolutely nothing.

This does not hold up. First, we start with the words “crimes” and “misdemeanors.” Both of those words carried a similar meaning in the English common law that they do today: they are violations of established law, either common law or enacted statutes.

The word “high” is a modifier that refers to the seriousness of the crime and its impact on the state. Thus, in their definition of an impeachable offense, President Trump’s lawyers suggest that a “high crime or misdemeanor” is “a violation of established law that inflicts sufficiently egregious harm on the government that it threatens to subvert the Constitution.”

There is no statute that criminalizes “abuse of power.” There is no common-law crime or misdemeanor that goes by that name. There is absolutely nothing.  As a result, President Trump could not have violated established law merely by “abusing his power.” Also, impeachment is discussed throughout the Constitution, in the context of actual crimes that are tried to a jury by those who seek to convict the President. The Democrats themselves could not avoid the use of criminal language in their briefing: they asserted that the President must be “convicted” of abuse of power. But for whatever reason, they reject the idea that they must allege a crime.

Moreover, there are Constitutional constraints on the power of Congress that limit their ability to impeach a President for non-crimes. As Harvard Law Professor Nikolas Bowie explains, the Constitution contains prohibitions on so-called ex post facto laws (laws passed to make conduct criminal retroactively) and on bills of attainder (laws that are designed to target the conduct of one person).  Given these constraints, it’s hard to understand why an impeachment power limited to “high crimes and misdemeanors” should be interpreted to allow the very abuse—arbitrary, individualized, and retroactive criminalization by a legislature—that the Founders had sought to prohibit.

“High crimes and misdemeanors” means what it says. The plain meaning of that phrase mandates that there be a violation of established law underlying articles of impeachment, as do a slew of other Constitutional provisions.

[caption id="attachment_181328" align="aligncenter" width="1920"] Jennifer Rubin.[/caption]

THE ARGUMENTS IN OPPOSITION

Tribe, Rubin, and other Democrat commentators are no strangers to this analysis; that’s why they have put so much effort into refuting Dershowitz’s simple, elegant argument. Proponents of impeachment usually rely on a number of key arguments, all of which can be dealt with easily.

The phrase “high crimes and misdemeanors” does not even appear in Federalist 65, and Hamilton makes no suggestion that he was attempting to define it.

First, they point to an out-of-context quotation from Alexander Hamilton’s Federalist No. 65. Tribe is so bold as to claim that Hamilton “defined ‘high crimes and misdemeanors’ as ‘those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.”

This is simply not true.

The phrase “high crimes and misdemeanors” does not even appear in Federalist No. 65, and Hamilton makes no suggestion that he was attempting to define it. Rather, as President Trump’s team pointed out, Hamilton was trying to explain why the Senate was the superior venue for hosting an impeachment trial, as opposed to the Supreme Court. Hamilton reasoned that because impeachment trials relate to “misconduct by public men,” they will inevitably be political, and are thus best resolved by a political body.

[caption id="attachment_181325" align="aligncenter" width="1920"] The Impeachment of Andrew Johnson.[/caption]

Nowhere does Hamilton suggest that anyone can be impeached for less than a violation of established law. Indeed, Hamilton discusses how the Senate will determine “guilt” or “innocence,” suggesting that Hamilton, like the rest of the Founders, viewed impeachment as a criminal proceeding, subject to the constraints of the Constitution. That, again, includes the prohibition against ex post facto laws and bills of attainder.

The Democrats do not have plain language on their side. They do not have the Federalist Papers on their side. They do not have the English Common Law on their side.

Note also that the Federalist Papers, while a helpful guide to interpreting the Constitution, are not the Constitution, and therefore not a final authority. And, Hamilton did not enact the Constitution alone; the Constitutional Congress, as a body, made it our founding document.

Neither, of course, did the British Parliament enact our constitution—even so, some commentators insist that the understanding of impeachment under English common law should control. But as William Blackstone explains in his authoritative Commentaries on the Laws of England, “impeachment … is a prosecution of the already known and established law.” Blackstone distinguishes impeachment from “acts of parliament” that accused “particular persons of treason or felony … beyond or contrary to the common law.” He further notes that commoners can be impeached “only for high misdemeanors,” but that “a peer may be impeached for any crime.”

The Democrats do not have plain language on their side. They do not have the Federalist Papers on their side. They do not have the English Common Law on their side.

Professor Dershowitz is simply correct, on both the law and the Constitution. Democrats have failed to allege an impeachable offense.

As such, the articles of impeachment should be dismissed at the first available opportunity.