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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