Jonah Goldberg: https://bit.ly/36zpydv
Goldberg: For instance, the president has unreviewable pardon power. But if he encourages unlawful behavior with the promise that he will pardon it after the fact, Congress can impeach him for it.
Me: Conspiracy to commit that behaviour
G: Again, I’m no constitutional scholar, but I’ve yet to find many actual constitutional scholars on Dershowitz’s side of the argument.
G: Does it make any sense that a president has to violate a criminal statute to be impeached? When the Constitution was ratified there were no federal criminal statutes?
Me: There were common law crimes and codifying them in statutes was known to be forthcoming.
G: Remember, the 25th Amendment doesn’t enter the picture until 1967. So basically any crazy behavior would have to be addressed with the impeachment power.
Me: Crazy behaviour isn’t criminal or criminal like, isn’t a “high crime or misdemeanor” like treason or bribery. Why was 25th Am passed, if not to fill this gap?
G: A president who spends his time in a smoke-filled VW van isn’t fulfilling his oath to see that the laws are faithfully executed.
Me: How is such conduct criminal or criminal like? How does it fit in with the language of “Treason, Bribery, or other high Crimes and Misdemeanors,” given the construction rule ejusdem generis? Better a further amendment to deal with this gap, certainly preferable to the latent dangers in the elasticity of vague criteria.
G: Impeachment is a political process by intention and design and senators are supposed to be statesmen who take the health of the body politic and constitutional order into account.
Me: No, it’s an unruly mix of law and politics. It sounds in criminal law. It has its closest analogue to criminal law. It is replete with the language of criminal law. To excise that analogue, to locate impeachment solely within the political, defies that it’s governed by the Constitution, America’s overarching legal framework, denies the applicability of the rules of natural justice—note the deeply unfair House process— and lands you in the land of Maxine Waters: “In impeachment, there is no law.” The flawed impeachments of both Clinton and Trump, both partisan attempts to short circuit their presidencies, demonstrate the dangers of impeachment by way of lawlessness. The anchoring of impeachment by crimes in the nature of bribery or treason, models for the kinds of offences against the state, which inform one of the big ways impeachment is in part political, drives you to your ludicrous examples—“spends his day in a smoke filled van”—to try to demonstrate the lurking danger with only a criminal underpinning.
Another absurd hypothetical:
“If the president routinely went on TV dropping racial epithets and anti-Semitic broadsides, he would be completely within his rights to do so. But I would like to think we live in a country where the democratically elected legislative branch would say, ‘this is unacceptable’ regardless of what the criminal justice system has to say about it.”
But put this absurd example against the real examples of impeachment, a most grave and awesome remedy, devolving to but a mere quiver in the politically partisan bow, trying to undo a duly constituted presidential election out of partisanship, which attempt has happened before and is happening now.
G: We elect a president and vice president on the same ticket in large part to protect the will of the voters. To say that removing a president overturns the will of the voters is to say that the voters cast ballots for any impeachable behavior the president commits. This is a logical and moral absurdity.
Me: No, again, no. To say that criminal or criminal-like behaviour must undergird impeachment is to say that the will of the people will not be overturned unless there is a concrete delict in the nature of a felonious crime against the state, that the democratically expressed will of the people will not be sacrificed on the altar of partisan advantage.
G: Now, none of this is to say that criminal behavior doesn’t make the case for impeachment easier.
Me: To say it’s “easier” is absurdly reductive of the repeatedly explained reason for concrete, enumerated, decisive Articles. “Easier” makes a mockery of the founders’ anxious concern over the devolution of impeachment into manifest factionalism, the result turning only on which party has the most votes.
G: But that is not Dershowitz’s claim. He flatly says abuse of power in itself is not impeachable.
Me: It’s fitting that this part of your finale-flourish betrays a failure to understand what Dershowitz argues. He doesn’t say that abuse of power isn’t impeachable. He doesn’t say it flatly or otherwise. He, rather, stresses the distinction between the motive for impeachment—at its most general, “abuse of power”—and the grounds of the abuse, which must be concrete, enumerated and anchored in specific and articulated modes of wrongdoing, criminal acts. It must be so in order to check the legislature from rising both above the law and the will of the people by a partisan exercise of raw political power, and in order to check the legislature’s ascension over the executive.
Dershowitz’s analogy to criminal law is perfect and correct. There is no criminal law of abuse of power. Rather, it’s the rationale for specific criminal laws, assault, battery, rape, and so on.
If you are charged with and arrested for abuse of power, with no notice of what specific law you have broken, you may wish to retain Alan Dershowitz.