Dershowitz says a Mueller firing would not be an impeachable offense
Alan Dershowitz keeps walking a lonely road as one of the few true liberals out there, trying to apply basic principles to cases no matter who might be involved and whether he, Dershowitz, happens to like that person or not. But Dershowitz stands more and more alone in the party he keeps insisting he belongs to, the Democrats.
Dershowitz has been reiterating what he’s said before:
“First of all, firing the special counsel would not be an impeachable offense because it wouldn’t be a crime,” Dershowitz said. “The president would have authority to do it. It would be politically very damaging to do it.”
The entire video at the link is worth listening to; Dershowitz makes several other points that all boil down to fairness and the pursuit of truth.
Regarding Dershowitz’s opinion on impeachment, it strikes me (and not for the first time) that the legal points he’s making are irrelevant to today’s current Democratic Party, which is all about power. They can impeach a president for anything they want, if they have the votes, because the bottom line is that impeachment is a political act although it has a legal framework. It is much more political than an ordinary legal proceeding, because the rules are much more vague, and the body making the decision is the US Congress (House for impeachment by simple majority, and Senate for conviction by super-majority). If Dershowitz thinks the politicians involved are interested in such niceties as whether a certain act is a crime or not, I’d say he’s got another think coming.
And of course, if deemed necessary, there is no problem whatsoever in getting an entire phalanx of legal scholars on the left to say that firing Mueller (or just about anything else Trump might do) would be an impeachable crime.
And important distinction would be how impeachment is going to play with the voters who were suddenly motivated by the Kavanaugh hearings, or turned out to vote for Trump after having been uninvolved for many years. Democrats can get their own people to turn up the volume to eleven for anything they put down on paper. They can get people into permanent rage over Melania’s Christmas decorations. Those are a given. What is that, 30%? And to be fair, there is 30% of the electorate that would consider Trump murdering a few people as “something that had to be looked at in context.” Maybe less. Fine. Okay.
But for the rest of the population, the Democrats will have to actually to commit and put in writing what they are impeaching Trump for. Firing the guy who is investigating him might look bad to them, true, even if legal. But most of the rest of the accusations against him are rather small beer. He tweets bad things. True, but oh, sure, try to ride that one home. He’s a racist. Really? What’s the hard evidence for that? The SPLC says so? Bring it on. We want them in the foreground instead of the background at this point. They only have power in the background. Well, all the best people know he’s dangerous. Please, please run with that. Please get your people to shout that even louder.
I thought that “high crimes and misdemeanors” refered to abject failure to execute the duties of the office or to severely mishandling them in some way. Only high officers of the government are subject to impeachment for this reason. It specifically did not refer to committing any crime that a normal citizen would be prosecuted for. If my understanding is correct, Dershowitz is way off base and the Congressional Democrats, as idiotic as they are, are pursuing impeachment for the correct reason.
Impeachment is fundamentally whatever Congress thinks is worth impeaching over. It does not need to be for criminal acts and it is not a criminal punishment.
It exposes a government official to the possibility of criminal punishment, if the offense was against the law. But people can do wrong which is not legal. And a judge or President might be able to frustrate the criminal process.
Consequently impeachment is a mechanism for removing officials, it’s not a criminal punishment. More support for what the Founders meant for impeachment can be found in their notes and in the Federalist 65:
“The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
They lodged the power in Congress for several reasons: 1) by analogy with the UK, where the Commons impeaches and the House of Lords convicts, 2) because if the Supreme Court is analogous to a judge, who ought to be the “jury”, and they thought Congress the closest analogue, 3) since the courts would be involved in punishing any actual crimes, they thought that the courts should also not be involved in impeachment:
” The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence?”
Congress has a political remedy and consequently the check on Congress is also political. If they impeach and the country finds it unjust, they can expect to suffer the consequences at the next election. Arguably this happened with President Clinton.
The precedent is Johnson, not Clinton. He was impeached, and almost removed from office, for policy differences.
My wife and I were talking about this today. I have no idea what will happen in 2020. I posted this the other day but still don’t know.
It’s pretty clear to me that Ryan and the GOP Congress has refused to act on any of Trump’s agenda. The tax cuts were fine with their donors, who I still think call the shots. Border Wall ? Nope. Not interested. Tariffs? Not much interested and against Trump’s tactics. E-Verify ? NO !!!!!!
That Tucker Carlson video I like so much says that Trump is remaking the GOP. The traditional GOP voters are now Democrats, mostly on social issues. Lots of them work for big corporations that prefer the Democrats’ fascism to free markets.
Trump is very alone, with few allies in DC except his kids. Can he make the GIOP the middle class party ?
We may learn in 2020.
Edit not there.
Impeachment is inherently political. Conviction is a another issue and difficult to pass by 2/3rds. That is how it should be. Impeaching slick willy was a stupid gesture. Might have felt good at the time, but stupid nonetheless.
Alan Dershowitz is living in a time long past. Living proof that smart and foolish can simultaneously coexist.
Assistant Village Idiot,
“Activist” democrats and the democrat leadership aren’t giving a thought to how a ‘trumped up’ impeachment of Trump would play with we on the right. Many think that they could get away with a political coup. Failing to realize that such a coup demonstrates that one party rule has arrived and half of America is now disenfranchised. Which will directly, if not immediately lead to “politics by ‘other’ means”.
Paul in Boston,
“I thought that “high crimes and misdemeanors” refered to abject failure to execute the duties of the office or to severely mishandling them in some way.”
Once true but it’s a “living constitution” remember? Which means that “high crimes and misdemeanors” can refer to whatever, in the moment… they wish.
“Congressional Democrats, as idiotic as they are, are pursuing impeachment for the correct reason.”
Huh? What abject failure to execute the duties of the office and/or severely mishandling them is Trump guilty of? Other than advocating policies with which democrats adamantly disagree? And, if agreement is the Sine qua non for a President to avoid impeachment and removal, then how do we not have one-party rule?
Frederick,
“Impeachment is fundamentally whatever Congress thinks is worth impeaching over.”… “If they impeach and the country finds it unjust, they can expect to suffer the consequences at the next election.”
Impeachment is whatever Congress thinks that a large enough majority of the public will accept. The purpose of democrat support for both legal immigration as presently configured and illegal immigration is to arrive at that state where consequences are forever absent.
@ Geoffrey Britain – Please read more closely. You are claiming I said something quite different from what I actually wrote. The Democrats do have be concerned with how this plays to the middle, the usually uninterested, the swing voter, the emotional voter. I agree they don’t have to worry much if they tick off the right.
It’s pretty clear to me that Ryan and the GOP Congress has refused to act on any of Trump’s agenda.
The Republican majority in the Senate was too narrow to accomplish much even if that body had satisfactory leadership (it hasn’t for most of the last 30 years) and sensible parliamentary rules (it hasn’t, ever, with the last 40 years particularly bad). That having been said, Ryan is pretty much an advocate of open borders by conviction, as well as being a man without much of a chest (so unsuitable in any sort of leadership position); if you had any doubts, his dithering nincompoopery in the fall of 2016 should have cured you of them.
It doesn’t much matter what Prof. Dershowitz thinks should be an impeachable offense. Congress can impeach Trump for having hairplugs, capped teeth, and a Slovene wife. You’d need about 40% of the Senate Republican caucus to start behaving like Jeff Flake, and that’s not going to happen. The House Democratic caucus may be dominated by people who wish to dispose of Trump BAMN, but the gatekeeper positions are in the hands of people like Nancy Pelosi who were in Congress in 1998 and who remember a weird outlier event occurring in the midst of the Clinton impeachment process: the president’s party gained seats in a congressional midterm election, something that happens about 5% of the time. Clinton benefited at the time from broadcast media acting as an extension of the White House press office (see the Media Research Center’s reports on the contrasting behavior of print and broadcast media), so Trump’s benefit from public backlash will be more muted. There’s no reason to believe he would not receive a dividend from such behavior.
I don’t recall a time when Dersh’s positon was a liberal one. Did anyone suggest that Clinton could get away with firing Starr?
Since Archibald Cox at least, a President firing someone who is investigating him has been considered a red line by both parties.
As far as I can tell, the only long-held principle that’s not being applied is that one.
@parker
I generally agree with you about the Clinton impeachment, but I think a reasonable argument can be made that the action, and the incidents that lead up to it, disabled Clinton’s ability to pursue his agenda. From that perspective it was a political success.
This is what I believe the Democrats are attempting to achieve with their promised investigations and potential impeachment – to neutralize Trump. He’s no Clinton and hasn’t done anything remotely in the category of high crimes, and doesn’t seem the type to be cowed by threats and intimidation, so I doubt it will achieve the goal.
Archibald Cox was the Robert Mueller of his time. The coup successfully pulled against Nixon by the FBI (Mark Felt) was a preview of what Trump has to deal with now. The Deep State was in rudimentary form in 1972. The Johnson entitlements and the corresponding administrative state were only 7 years old. The difference now is that Trump is immune to many of the influences that affected Nixon. Nixon was not a rich man and craved approval from his enemies, both conditions that do not affect Trump. However, 2020 may be another 1968 unless the Democrats get their left wing crazies under control.
I think a reasonable argument can be made that the action, and the incidents that lead up to it, disabled Clinton’s ability to pursue his agenda.
The 1994 election did that. The impeachment, which I agree was a mistake, pushed him far left in his search for allies. Diane Feinstein suggested censure, which would have been a better option. It might have even been bipartisan.
Archibald Cox was the Robert Mueller of his time. The coup successfully pulled against Nixon by the FBI (Mark Felt) was a preview of what Trump has to deal with now. The Deep State was in rudimentary form in 1972.
???????
Cox wasn’t in office long and neither he nor his two successors had a history of the sort of abusive behavior with defendants we’ve come to expect with federal prosecutors. The investigations undertaken by the U.S. Attorney’s office in DC and taken over by the special prosecutor’s office under Cox, Jaworski, and Ruth tackled three primary sets of defendants: those who perpetrated the Watergate burglary, a set of those involved in a conspiracy to pay them hush money and keep information from the Criminal Division and the U.S. Attorney who were wiling to negotiate plea bargains, and a set of those involved in that conspiracy who went to trial. Within 28 months of the beginning of the investigation, the 1st two sets of defendants had been processed and the trial of the 3d set had opened (and concluded in January 1975). There were ancillary defendants, appellate work, and reports to write, but the bulk of the work of that effort was concluded a little over 30 months after the burglary in June 1972. Positively brisk by the standards of succeeding special prosecutor investigations (especially this one).
There was no coup, and it’s a reasonable wager that ‘Deep Throat’ was a composite of several sources.
The Nixon administration had three sets of people engaged in illegal activities and a third set plotting them. One set was located at the White House and worked for Egil Krogh. Another was set up at the Committee to Re-Elect the President and worked for Gordon Liddy. A third consisted of one man (Donald Segretti) engaged in pranks of scant consequence. Another was at the White House and worked for Charles Colson (though they don’t seem to have actually executed much in the way of illegal activity). People implicated in their schemes or knowledgeable about them included the President’s chief of staff and his gopher, the chief of the Domestic Policy Staff, the Counsel to the President, the director of the Committee to Re-elect the President and the deputy director thereto.
Did anyone suggest that Clinton could get away with firing Starr?
The enabling legislation under which Starr was appointed did not permit that. In the intervening years, case law has dramatically restricted the capacity of Congress to craft enabling legislation which grants tenure to executive branch employees.
Since Archibald Cox at least, a President firing someone who is investigating him has been considered a red line by both parties.
The special prosecutors appointed between 1972 and 1986 were the real deal. The Walsh and Starr investigations were roughly above-board at the beginning, but went off the rails. The Mueller investigation has been a fraud from the get go.
My own understanding, which certainly could not be wrong, has always been that WJC was at the least a left Marxist from college days if not before.
I don’t think he governed so much as a “centrist” as he did as a Clintonist; the pay was good and the perks were better. And per Heritage, for instance, his early move in office was to raise taxes; it wasn’t until 1997 that the Republicans (and as I remember, Newt usually gets the credit for this) were able to get tax cuts pushed through, with good economic results.
https://www.heritage.org/taxes/report/tax-cuts-not-the-clinton-tax-hike-produced-the-1990s-boom
It’s always seemed to me that Clinton was a rascal and a scoundrel, but one with some brains and loaded with charisma: A trifecta for a professional con-man. Two qualities lacking in his Democratic successor, as far as I can see.
Full disclosure: I used to think Shrill was not so stupid as to kill the goose that laid the golden eggs. Now I just think she’s over the hill … though not the Shrill.
If I’m wrong in any of this, please feel free to disabuse me.
PS. I wouldn’t say the Sith was stupid, but such brains as he had were in the manipulation-opportunism areas; and he had a lot of help with those. He was a pretty good orator (provided the teleprompter was working), and he dressed nice & was the very picture of “hope & change” if you were reasonably foolish. And most definitely a Obamanist.