Politics Foreign Affairs Culture Fellows Program

Alan Dershowitz’s Radical Case Against Impeachment

Few legal scholars have defined "high crimes and misdemeanors" as narrowly—or consistently—as he has.

The Case Against Impeaching Trump, Alan Dershowitz, Hot Books, 590 pages

Law professor Alan Dershowitz’s new book, The Case Against Impeaching Trump, makes the argument that there is a precise legal definition for impeachment that legislators should follow. Otherwise America could enter a dangerous new world where political enemies are punished for engaging in what should be considered normal politicking.

Dissecting every nuance of what Dershowitz has written will be the task of legal scholars. In the meantime, what jumps out to the casual reader is just how radical Dershowitz’s case is.

The Constitution says that a president can only be impeached for “high crimes and misdemeanors.” That term means something legally, argues Dershowitz, and there are very few activities that actually fall under it. 

“High crimes and misdemeanors” cannot be like the famous summation of obscenity from Supreme Court Justice Potter Stewart: “I know it when I see it.” It has a specific legal definition that must be used. It can’t be broadly sketched the way Congresswoman Maxine Waters did: “impeachment is about whatever the Congress say it is.” If we choose to accept Waters’ definition, our government will become beholden to roving commissions and endless panels of special prosecutors.

Dershowitz is also skeptical of the ever-expanding definition of obstruction of justice and what sorts of motives can trigger impeachment. He points out that members of government are immune from prosecution for performing their constitutionally authorized duties. For Trump, this includes “firing the head of the FBI, pardoning potential witnesses against him, or directing law enforcement officials who to prosecute and who to not prosecute.”

Dershowitz goes so far as to argue that even if a president were to allow Russia to invade and reclaim Alaska, this would still not rise to the level of “high crimes and misdemeanors.”

“A president cannot be convicted of a crime for merely exercising his constitutional authority to fire, pardon or end an investigation,” he writes, and even “collusion with a foreign power during an election” is “not currently a crime under the federal criminal code.” In addition, the Supreme Court has ruled repeatedly on federal statutes’ definition of corruption and “not all political actions that smell or look like corruption can be prosecuted criminally without Congress specifically making such conduct criminal” with precise legislation.

Virtually all other academics and scholars disagree that “high crimes and misdemeanors” should be interpreted so narrowly.

“No crime is necessary. If the president is acting in an ‘atrocious’ way that harms most of the states, he is committing a ‘misdemeanor,’ even if no violation of the law is involved,” writes Cass Sunstein in Impeachment: A Citizen’s Guide.

As far back as 1833, Joseph Story asserted in his Commentaries on the Constitution that no “one has yet been bold enough to assert, that the power of impeachment is limited to offences positively defined in the statute book of the Union, as impeachable high crimes and misdemeanors.”

Dershowitz doesn’t only argue for extremely narrow definitions based on the text of the Constitution. He goes so far as to contend that if the House and Senate convicted a president of an offense that was not a crime, the Supreme Court would be constitutionally authorized to overturn the impeachment. Such an overruling would almost certainly crack the already wobbly columns of our republic.

Dershowitz is strongest when he’s imagining hypothetical scenarios and making arguments for formal changes to the law. In addition to suggesting that Congress act to better define high crimes and misdemeanors, he calls for a change to the office of attorney general and formal separation of the role of chief prosecutor from that of chief legal advisor to the president.

He writes:

We are one of the few western democracies that mistakenly merged these roles into one. Our attorney general is supposed to advise the president politically, as Sessions has done with regard to immigration reform and other matters. But at the same time, the attorney general is supposed to be the head law enforcement officer of the United States—the chief prosecutor. This conflation of roles inevitably creates a schizophrenic attorney general with conflicting loyalties and obligations.

Dershowitz also decries the overreach of special counsels and the use of indictments to harass and intimidate political opponents.

The gist of his case is presented in the first 28 pages; after that follows a compilation of often repetitive opinion articles, transcripts from interviews, and even a record of his Twitter exchanges with the president. This makes for stilted (and sometimes dated) reading. There isn’t much new material for fans who regularly read his columns.

Still, Dershowitz is a lone voice in a legal community that sees impeachment as a far more common remedy, and for that reason alone his book deserves to be read. His legal reasoning has been consistent for decades and across administrations. Given the steady drip of news on “Russia collusion,” the special counsel investigating Trump, and the upcoming Senate hearings to confirm Supreme Court nominee Brett Kavanaugh, this book should be seen as a challenge to lawmakers. Because whatever happens to Trump, the questions of unlawful politicking and presidential impeachment aren’t going away.

Barbara Boland is the former weekend editor of the Washington Examiner. Her work has been featured on Fox News, the Drudge Report, HotAir.com, RealClearDefense, RealClearPolitics, and elsewhere. She’s the author of Patton Uncovered, a book about General Patton in World War II. Follow her on Twitter @BBatDC.