colfax_m
Diamond Member
- Nov 18, 2019
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Alan Dershowitz, favorite lawyer of the Trump team and many of his supporters has declared that an impeachable offense must be a criminal violation. He offers this hypothetical in one of his books and a column published in Newsweek in 2018.
I don't think this stands to constitutional muster. High crimes and misdemeanors should not be considered solely as a part of criminal law but as an abuse of powers granted to them or a violation of public trust in Federalist Paper number 65.
Indeed, the term high crime and misdemeanor is a common law term added specifically to make sure that the president could be removed for the types of behavior not defined by criminal law.
In fact, going through US history, less than a third of impeachments have included crimes as an article of impeachment according to the Congressional Research Office.
Two questions. Do you think Dershowitz's example of allowing Alaska to be annexed by Russia is impeachable? Does Dershowitz's opinion on what consitutes an impeachable offense stand up to scrutiny?
Or take a more extreme example. Assume Putin decides to "retake" Alaska, the way he "retook" Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to its original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution. (It would, of course, be different if he did it because he was paid or extorted.) Such a dramatic event might appropriately result in a constitutional amendment broadening the criteria for impeachment, but it would not justify ignoring or defying the words of our current Constitution.
The framers of the Constitution did not provide an impeachment remedy for an incompetent, nasty, even tyrannical president—unless he committed a designated crime. Perhaps they should have, but Congress is not authorized to "correct" constitutional errors or omissions through unconstitutional actions in impeaching and removing a president who has not committed a designate crime. Perhaps the framers should have required a majority vote rather than a two-thirds vote to assure that a tyrannical president is removed. But the remedy lies in amending the Constitution, not violating it. The appropriate response to executive tyranny is not legislative tyranny.
I don't think this stands to constitutional muster. High crimes and misdemeanors should not be considered solely as a part of criminal law but as an abuse of powers granted to them or a violation of public trust in Federalist Paper number 65.
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. 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.
Indeed, the term high crime and misdemeanor is a common law term added specifically to make sure that the president could be removed for the types of behavior not defined by criminal law.
Debate prior to adoption of the phrase and comments thereafter in the ratifying conventions were to the effect that the President (all the debate was in terms of the President) should be removable by impeachment for commissions or omissions in office which were not criminally cognizable.
In fact, going through US history, less than a third of impeachments have included crimes as an article of impeachment according to the Congressional Research Office.
Less than a third have specifically invoked a criminal statute or used the term “crime.”64 For example, in 1803, Judge John Pickering was impeached and convicted for, among other things, appearing on the bench “in a state of total intoxication.”65 In 1912, Judge Robert W. Archbald was impeached and convicted for abusing his position as a judge by inducing parties before him to enter financial transactions with him.66 In 1936, Judge Halstead Ritter was impeached and convicted for conduct that “br[ought] his court into disrepute, to the prejudice of said court and public confidence in the administration of justice ... and to the prejudice of public respect for and confidence in the federal judiciary.”67 And a number of judges were impeached for misusing their position for personal profit.68
Two questions. Do you think Dershowitz's example of allowing Alaska to be annexed by Russia is impeachable? Does Dershowitz's opinion on what consitutes an impeachable offense stand up to scrutiny?