I, on the other hand, am not that smart. I studied English
and journalism at Fairmont State College and was once suspended for a year because
of poor academic performance. (I liked to sit and play cards in the Student
Center all day instead of actually going to class.)
I have, however, read the Constitution of the United States –
several times over the years – and when Alan Dershowitz says that abuse of power
is not an impeachable offense, he’s absolutely wrong.
As most of us know, the U.S. Constitution says a president
can be impeached for “treason, bribery or other high crimes and misdemeanors,”
but it does not describe in great detail what constitutes such an offense. It
does say that the House of Representatives can impeach a president for
committing one, however, and absent a clear definition, that means it’s up to
the House to decide if an offense is impeachable or not. If its members find
sufficient grounds, the House issues one or more Articles of Impeachment and forwards
the case to the Senate for a trial.
In the impeachment of Donald Trump, the House has decided that
Trump’s decision to withhold a package of military aid from the government of
Ukraine while bribing the leaders of that country to dig up dirt on a political
rival did, in fact, constitute a high crime and misdemeanor, and it voted out
two articles of impeachment, including one for abuse of presidential power.
The problem here is that Dershowitz – Constitutional scholarship
notwithstanding – has been arguing the case as if it were a matter of law, which
under the Constitution, it is not. Impeachment by design is a purely political
exercise that is not specifically tied to any statutory crime, which means it’s
whatever the House of Representatives says it is. In fact, none of the two previous
impeachments involved statutory crimes that rise to the prominence of Trump’s alleged
misdeeds.
Andrew Johnson was the first president to be impeached in
1868 because he attempted to replace his Secretary of War without the approval
of the Senate. Technically he was charged with violating the Tenure of Office
Act, a federal law intended to restrict the power of the president to remove
certain office-holders without approval, but it was hardly an act that put the
nation’s citizens at risk…and he was acquitted by one vote in the Senate.
One hundred thirty years later, Bill Clinton was impeached
for having extramarital affairs and lying about them under oath. Again, his
actions were not exactly threats to our democracy or our way of life, and,
again, he was not convicted in the Senate.
(For the record, Donald Trump has had no-one-knows-how-many
extramarital affairs and has told a few thousand lies since becoming a
candidate for president in 2015, but none of his lies was told under oath because
he refuses to ever swear to tell the truth.) That’s not why he was impeached,
however. His high crime and misdemeanor was playing political football with one
of our European allies and putting our national security at risk by attempting
to bribe a foreign government to help him win re-election. This is the very
abuse of power the framers of the Constitution had in mind when they wrote the
section on impeachment way back in 1787.
According to the Center for American Progress, the framers “included
several clauses designed to reduce the opportunities for improper foreign
influence in the American political system.” In addition, our first president, George
Washington, warned in his farewell address that one of the greatest dangers to
the United States involved the “insidious wiles” of foreign powers and their
multiple avenues to improperly influence our political system.
While the Constitution is not precise in defining the phrase
“high crimes and misdemeanors,” the term is derived from English common law, which
considered it to be “corrupt activity” by people with political power over
others. Later, it came to mean “mal-administration of such high offices as are
in public trust and employment.”
Today, most legal experts dispel the notion that only
criminal conduct can constitute sufficient grounds for impeachment. Such a
belief “does not comport with either the views of the founders or with
historical practice,” they say. (I’m looking at you, Alan Dershowitz.) No less
a legal scholar than Alexander Hamilton, one of our most notable founding
fathers, said impeachable offenses arise from “the misconduct of public men, or
in other words from the abuse or violation of some public trust.” Such offenses,
he said, “were political, as they relate chiefly to injuries done immediately
to the society itself.”
So while Trump is believed to have bribed the government of
Ukraine to interfere in the 2020 election, he is not specifically charged with
the crime of bribery. He is, however, charged with abuse of power, which I
found to be a legitimate reason for an article of impeachment. I learned all of
this in roughly 60 minutes by googling the words “impeachment” and “U.S. Constitution.” I
wonder why Alan Dershowitz couldn’t find the same information during 60 years
as a lawyer, teacher and Constitutional scholar?
