Two More Dershowitz Gems

More nonsense.

To continue from my post yesterday, there were two other items I wanted to address from Alan Dershowitz’s Monday speech in the Senate. These are from the same FNC article I noted this morning: Dershowitz calls out House Dems in Trump’s Senate impeachment trial after Bolton shock waves

The first is as follows:

Dershowitz further suggested that the “rule of lenity,” or the legal doctrine that ambiguities should be resolved in favor of defendants, also counseled toward acquitting the president. The Constitution permits impeachment and removal of presidents for “treason,” “bribery,” and “high crimes and misdemeanors,” but does not clearly define the terms.

To take this to its logic conclusion, impeaching and removing a president is virtually impossible, since there is real ambiguity around what the words in the Constitution actually mean.

Again, I understand it is his job to create the equivalent of “reasonable doubt” in the trial (and to provide soundbites for pro-Trump outlets/plausible sounding excuses for Republican Senators), but this strikes me as a rather dangerous notion (to go along with the dangerous notion I noted this morning).

The second item was this:

He quoted Supreme Court Justice Benjamin Robbins Curtis — one of the two dissenters in the notorious 1857 “Dred Scott v. Sandford” decision and counsel for President Andrew Johnson during his impeachment trial in 1868 — as saying there can be no impeachable offense “without a law, written or unwritten, express or implied.”

One of the “defenses” has been that since there is no crime charged, there is no grounds to impeach.

But one can easily imply bribery and extortion. Obstruction of Congress is a version of obstruction of justice. Abuse of power for personal gain links to the emoluments clause.

Further, it is illegal to accept a think of value for campaign purpose from a foreigner. And the GAO has declared the withholding of the security aid to have been illegal.

Plenty written, unwritten, expressed, and implied, quite frankly.

Fundamentally, it is interesting (and frustrating) the way in which the defense wants the proceedings to be just like a trial, except where they clearly don’t (like discovery and the ability to compel witnesses).

FILED UNDER: Donald Trump, Impeachment
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Daryl and his brother Darryl says:

    Fundamentally, it is interesting (and frustrating) the way in which the defense wants the proceedings to be just like a trial, except where they clearly don’t (like discovery and the ability to compel witnesses).

    Frankly…the contortions Republicans are putting themselves thru in an effort to set Trump free is comical…if our system of Government didn’t hang in the balance.

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  2. drj says:

    but this strikes me as a rather dangerous notion

    I am quibbling, of course, but Dershowitz’s rhetorical contortions are going to convince noone.

    The real danger is a GOP Senate caucus that is unwilling to fulfill its Constitutional duties, not the random bad faith arguments of some corrupt (in the intellectual sense of the word) hack.

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  3. OzarkHillbilly says:

    Another day ending in “Y”. Really Steven, this is all they’ve got. If the facts were on their side, they’d argue the facts. If the law was on their side, they’d argue the law. Neither are so they pound the table and shout inanities in the hope of confusing the issue with voters, not elected Republicans. Elected Republicans are quite clear on what they need to do.

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  4. Kathy says:

    The GOP and Trump ought to come out and say what they mean: Impeachment does not apply to Republicans. If it did, it would be much mor difficult for a republican occupying the White House to engage in criminal activities and corruption.

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  5. Scott says:

    @Kathy: Speaking of engaging in criminal activities and corruption, is there anything more Trumpian than this:

    https://thehill.com/homenews/administration/478846-kudlow-says-trump-looking-at-reforming-law-on-bribing-foreign

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  6. Kathy says:

    @Scott:

    Some years ago, a northern European country, maybe Denmark or Norway, talked about letting companies deduct bribes paid abroad from their income tax. I forget what if anything came off it.

    In most countries, government contracts involve kickbacks. That’s one reason governments often pay higher prices for goods or services: kickbacks are priced in. It follows, then, that a company paying kickbacks, or other bribes, will do better than one which doesn’t, placing the latter at a disadvantage.

    But here’s the thing: in all these countries where kickbacks are the norm, they are also illegal. Therefore, if the US allows American companies to legally bribe foreign officials, they’d be effectively facilitating crime, and corruption, in other countries. The US government would be an accomplice.

    Corruption is not an easy problem. Nor is it confined to third-world countries. Nor is ti confined to outright bribes and kickbacks. There are also favors, jobs in exchange for favorable treatment or legislation, etc.

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  7. @drj:

    Dershowitz’s rhetorical contortions are going to convince noone.

    I disagree. I think a lot of people are going to absorb all of this as Smart Things the Smart Man said. There is also the real danger that the next impeachment treats these speeches as “precedent” (as we are seeing Dershowitz himself do in quoting people from the mid-1800s/the way what happened in the Clinton impeachment is shaping the current proceeding).

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  8. KM says:

    @Kathy:

    But here’s the thing: in all these countries where kickbacks are the norm, they are also illegal.

    I don’t like the term “kickback” because it’s soft language obscuring the concept in question. We’re talking bribery and all it’s sundry connotations. Not all bribery is equal in evil but all are illicit by their nature. Necessary evil is still evil.

    Bribery is officially illegal in virtually every country that has a semi-functional form of government. It’s a logical step as it is money that’s *not* going towards the government properly and thus not a good idea for them to legally permit. They might not care if you get rich off being in office but the government can’t sanction you getting wealth that should – in their eyes – be going to *them* instead of *you*. By definition, bribery circumvents the official process and thus cannot be part of the process.

    De facto actions cannot always translate into de jure blessings. I understand the frustration of not being able to compete effectively because of things like this but asking the government to sanction bribery is asinine at best, subversive to the concept of government at the worst. That Trump’s the one pushing this gives it an extra bitter taste since you can be absolutely sure he’s doing it for personal profit, not to make business more effective in corrupt countries.

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  9. drj says:

    @Steven L. Taylor:

    There is also the real danger that the next impeachment treats these speeches as “precedent”

    Certainly not if the next impeachment case is against a Democratic President.

    Dershowitz:

    “Purely non-criminal conduct such as abuse of power and obstruction of Congress are outside the range of impeachable offenses”

    So Republicans are going to let specific and clearly criminal examples of “abuse of power” go, because of what Dershowitz once said? (The current Articles of Impeachment contain such examples, by the way, making of Dershowitz’s reasoning even dumber.)

    Ain’t gonna happen. Which means that it’s not the transparently silly argument (or Dershowitz himself) that is the problem, but the willingness of a certain audience to buy into this nonsense.

    And these very same people who are going to absorb all of this as “Smart Things the Smart Man said” are equally going to change their tune once the shoe is on the other foot.

    Perhaps a future corrupt Democratic President might go for the same defense and succeeds. But even then, I would argue that the actual problem would be the Democratic Senate caucus, because if they buy Dershowitz’s argument, they would buy anything.

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  10. @drj: My interactions with people who heard something somewhere and so think that they understand the constitution or the founding or whatever are such that I have less confidence than you do that this nonsense won’t become part of the zeitgeist.

    “We’re a republic, not a democracy” for example. (Or a host of poorly constructed, supposedly historically-based, arguments I hear on a regular basis, often from educated people).

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  11. drj says:

    My interactions with people who heard something somewhere and so think that they understand the constitution or the founding or whatever are such that I have less confidence than you do that this nonsense won’t become part of the zeitgeist.

    I don’t doubt this at all, but I also think this wouldn’t go anywhere without the bad faith acceptance of this nonsense by certain gatekeepers (GOP senators, Fox News personalities, etc.) who actually do know better.

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  12. gVOR08 says:

    @drj: Bad faith acceptance? They’re all-in on pushing it.

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  13. flat earth luddite says:

    @OzarkHillbilly: Yes, they know what they “need” to do, as well as what they “should” do. They should, in order to uphold their oaths of office, impeach Mr. Trump, however, as his humble acolytes, they NEED to set him free to hot-wire the next election.

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  14. Gustopher says:

    @Steven L. Taylor:

    I think a lot of people are going to absorb all of this as Smart Things the Smart Man said.

    I believe the obvious rejoinder to this is “Isn’t Dershowitz a pedophile? Wasn’t he involved in the Epstein thing?”

    If someone is basing their opinions on an appeal to authority, rather than thinking through what that authority is saying, it would seem like attacking the authority is the way to go.

    If they reply that Dershowitz says that he kept his underwear on, you will know that they are informed enough to know better, and are being willfully ignorant in not knowing what Dershowitz is arguing.

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  15. Jay L Gischer says:

    @Gustopher: For what its worth, I think Dershowitz’ argument is stupid, just as Steven does. AND, I think a rebuttal that takes the form of “he’s a pedophile” is a worthless bit of argumentation. Arguments exist independently of the person making them. Yeah, you can probably shoo some people off with that, but it has little impact on me.

    It’s clear though, that there is a lot people who take your approach, and seem to be happy with it. More evidence that the world is not a construct of my imagination. That world would be wrong in much different ways.

  16. Daryl and his brother Darryl says:

    Dershowitz is now saying that anything the President does to get re-elected could be considered in the nations interest, because the President believes it is the nations best interest for him to be re-elected, and is therefore not impeachable.
    Seriously…he said that. In testimony before the most deliberative body in the world.
    Are there literally no Republican Senators who realize how fuqed up this is?
    And if not…how are we supposed to survive as a Nation?

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  17. Joe says:

    @Steven L. Taylor:

    Smart Things the Smart Man said

    I can hear some back bench Senate Republican channeling Jon Lovitz – “yeah, yeah . . . that’s the ticket.”

  18. Kathy says:

    @Daryl and his brother Darryl:

    Are there literally no Republican Senators who realize how fuqed up this is?

    They’d have to be less effed up to realize how fuqed up that is.

    More likely, they are sitting quietly in the chamber thinking, “Does he not realize we know this already?”

  19. OzarkHillbilly says:

    @Gustopher: @Jay L Gischer: We all know it’s an ad hominem attack and that it’s what people do when their own argument is so weak that it is what they have to resort to. It’s not necessary and it won’t work. Anyone who can not be talked off the cliff of Dershowitz’s argument with logic and reasoning isn’t going to change their mind because some lying libtard said he was a pedophile.

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  20. Gustopher says:

    @OzarkHillbilly: @Jay L Gischer: Except Steven is referring not to the people who listen to the argument, understand it, and weigh whether it is appropriate, but to the people who assume that Alan Dershowitz is a smart man, so what he’s saying must be smart.

    Sometimes you have to tailor your argument to your audience.

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  21. al Ameda says:

    @Steven L. Taylor:
    I realize that this may seem wrong, but I currently see Dershowitz’s arguments, not as a detached scholar’s opinion on the proper historical predicates for impeachment, rather I see his comments as those of a defense attorney speaking to this Republican Senators’ OJ Jury.

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  22. Teve says:

    @Daryl and his brother Darryl: yep.

    @abc

    Trump attorney Alan Dershowitz: “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” abcn.ws/2S37weJ

    I suppose this would include having Epstein whacked.

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  23. Teve says:

    @green_footballs

    Dershowitz’s arguments are getting increasingly bizarre.

    I guess that’s what happens when you’re defending an obviously guilty criminal.

  24. Kathy says:

    The GOP is in a pickle now: how to completely exonerate El Cheeto Pendejo and reject Dershowitz’s arguments?

    They might be cool making him king, but not The F***g SUN King.

  25. Just nutha ignint cracker says:

    @Gustopher: Clearly you don’t remember during the campaign when confronted with stories about huge business losses, Trump contended that those losses showed what a great businessman he really was because he was able to write them all off on his taxes against future income. [ETA: And the audience cheered.]

    Or the Texans in a previous election whose response to the news that as governor Rick Perry declined to stay the execution of a man proven to be innocent by noting that executing an innocent person showed how gutsy he was.

    In much the same way, your “tailor made” audience is just as likely to say “Dersh must be pretty smart if he’s getting away with being a pedophile” as they are to say “eeeew! I’m not listening to him anymore, he’s creepy.”

  26. Bob@Youngstown says:

    Recall that Dershowitz insisted that he was not appearing as an expert but rather as an advocate for his client. Thus I take his assertions as not the pronouncements of a smart man saying smart things, but an advocate that is willing to advance any argument that might benefit his client (regardless of how silly that argument may be).

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  27. Just nutha ignint cracker says:

    @al Ameda: “If the glove don’t fit, you must acquit.”

    “The Constitution permits impeachment and removal of presidents for “treason,” “bribery,” and “high crimes and misdemeanors,” but does not clearly define the terms.”

    Not as catchy, for sure, but yeah, it’s the same thing. Good catch!

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  28. @al Ameda:

    rather I see his comments as those of a defense attorney speaking to this Republican Senators’ OJ Jury.

    I do as well. But, OJ got off. And his defense team did give OJ supporters arguments to confirm their preferences. (All of which is kind of the point).

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  29. Jax says:

    Dershowitz sounds like that Ukraine guy we had around here…”Even if he did it, it was in the best interest of the country!”

    I’m so tired of this clown show.

    MABA!! Make America Boring Again!!

  30. mattbernius says:

    Joining late, but I would hope that members of the President’s party, if not his strongest supporters, would see issue with the following argument:

    Trump attorney Alan Dershowitz: “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

    What President doesn’t feel that him getting elected is in the public interest? Further, what is the rational that restricts this to just quid pro quos?

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  31. mattbernius says:

    @mattbernius:

    What President doesn’t feel that him getting elected is in the public interest? Further, what is the rational that restricts this to just quid pro quos?

    By this logic, would the Watergate break-in an subsequent cover-up have qualified as a justified action as it was done to assist with Nixon’s election?

    I.e. The president and conspirators involved were acting in the public interest to keep Nixon as the president.

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  32. pylon says:

    How was Dershowitz ever made a full professor at Harvard with only an LLb and no academic writings? I think he has one skill – self promotion.

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