GateHouse Media
January 24, 2020
The impeachment trial of President Donald Trump is
in full swing. The United States Constitution provides in Article II, Section 4
that “The President ... shall be removed from Office on Impeachment for, and
Conviction of ... high Crimes and Misdemeanors.”
Lawyers for the president have argued that he cannot
be removed from office because he has not violated the law. One of Trump’s
lawyers, Alan Dershowitz, has said that impeachment requires “criminal-like
conduct.” Dershowitz told The Associated Press, “I will be making that argument
as a lawyer on behalf of the president’s defense team against impeachment.
That’s my role. It’s very clear. I have done it before.”
In a brief filed before the trial began, Trump’s
lawyers argued that the article of impeachment claiming that the president
abused his power is unconstitutional because he was not accused of a crime.
“House Democrats’ novel conception of ‘abuse of
power’ as a supposedly impeachable offense is constitutionally defective,” the
brief noted. “It supplants the framers’ standard of ‘high crimes and
misdemeanors’ with a made-up theory that the president can be impeached and
removed from office under an amorphous and undefined standard of ‘abuse of
power.’”
The White House’s “no crime, no impeachment” defense
has been pooh-poohed by the House impeachment managers. In their view, the
standard of “high crimes and misdemeanors” is vague and open-ended for a reason
and is meant to encompass abuses of power that are not necessarily illegal.
Rep. Adam Schiff, the rising star of the House
prosecution team, called Trump’s defense an “absurdist position.” He added,
“That’s the argument I suppose you have to make if the facts are so dead set
against you.”
Don’t take Schiff’s word for it.
Here is what Princeton University Professor Keith E.
Whittington wrote last fall, ”(T)he president can commit an impeachable high
crime without violating the federal criminal law.” Whittington added, “To
conclude otherwise would be to ignore the original meaning, purpose and history
of the impeachment power; to subvert the constitutional design of a system of
checks and balances; and to leave the nation unnecessarily vulnerable to
abusive government officials.”
How about Alexander Hamilton’s word? In “Federalist
Paper No. 65,” Hamilton noted that even an elected government would need an
impeachment power to address “the abuse or violation of some public trust.”
As recently as 1982, the U.S. Supreme Court ruled a
president’s “misconduct” - not necessarily criminal conduct - may lead to the
“constitutional remedy of impeachment.”
How about the word of George Washington University
law professor Jonathan Turley who recently argued in the House against
impeachment? He wrote in The Washington Post this week that the “no crime, no
impeachment” defense was politically unwise and constitutionally shortsighted.
Okay, you’re still not convinced. How about the
president’s number one fan, ardent defender and United States Attorney General?
Before William Barr was appointed Attorney General, he was asked to provide
advice to the White House during the Mueller investigation.
Barr included the following passage in a memo he
wrote in 2018, “Even without the possibility of criminal penalties ... a check
is in place on presidents who abuse their discretionary power to control the
executive branch of government - impeachment.”
As reported by The New York Times, the president’s
friend and adviser, Attorney General Barr concluded, “Under the framers’ plan,
the determination whether the president is making decisions based on ‘improper’
motives or whether he is ‘faithfully’ discharging his responsibilities is left
to the people, through the election process, and the Congress, through the
impeachment process.”
Apparently, President Trump’s defense team never got
the memo.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was
released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter at @MatthewTMangino.
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