Late last January, just before the conclusion of President Trump’s impeachment trial, Alan Dershowitz — Democrat, Clinton supporter (both Clintons), constitutional scholar, Harvard Law School Professor, and member of the Trump defense team — announced that he’d changed his mind concerning the grounds for Federal impeachment.
Previously he had stated that “you don’t need a technical crime” to impeach a president. That was during the Clinton impeachment. But during the Trump trial he recanted: “The conduct has to be criminal in nature — it can’t be abuse of power; it can’t be obstruction of Congress. Those are precisely the arguments that the framers rejected.” On the face of it, the flip-flop stinks of partisanship.
Which Dershowitz is right? Good question . . . whatever your view of Donald J. Trump. Up front, let me state that I’m not a constitutional scholar, I’m neither a Republican nor a Democrat, and I’m definitely not a lawyer (though I’ve met one or two, and I tend to be argumentative). So this is your opportunity to skip to the next Liberty article. However, if you’re still reading, I’ll attempt to put recent impeachments in a historical context, reviewing past federal impeachments and removals from office for insights and precedents that might help inform present opinions.
On the face of it, Dershowitz's flip-flop stinks of partisanship.
The very first federal impeachment — and removal from office — under the new Constitution was not an ideal example of the process. In fact, it set a questionable precedent. In 1789 the French — inspired by our own revolution (or so many Americans thought) — overthrew their absolutist monarchy. The revolutionary government decided to share the virtues of its revolution with neighboring countries. In 1795 France defeated Spain during what has been termed the French Revolutionary Wars. As a result, Spain was forced to cede the Caribbean Island of Santo Domingo to France. Fearing that a similar fate might befall the Spanish territories of Florida and Louisiana, William Blount, a senator from Tennessee (and signer of the Declaration of Independence), conspired to have sturdy Great Britain take over those territories, to keep the unpredictable French from seizing them.
At the time, the US political scene was highly polarized between Federalists, who — in spite of the recent war for independence from Britain — admired the stability of that country’s institutions; and Republicans, who looked to France with gratitude for its help in defeating Britain and admired certain aspects of France’s Revolution. When President John Adams found out about Senator Blount’s machinations, he informed the House of Representatives and requested impeachment proceedings against Blount. Had the senator committed treason? But we were not at war with Britain. Perhaps a “high crime or misdemeanor”?
The House voted 41 to 30 for impeachment. The Senate tried Blount, but on January 11, 1799, voted 14 to 11 to dismiss the impeachment, arguing that impeachment did not extend to senators. They nonetheless expelled him from the Senate. The upshot was that the Senate decided that members of Congress were not considered “civil officers” for purposes of impeachment, and that the simpler procedures of Article I, Section 5 of the Constitution, which states that "each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member," were sufficient to remove members of Congress from office.
Had the senator committed treason? Perhaps a “high crime or misdemeanor”?
The next impeachment case, against Federal District Judge John Pickering, was even more muddled, so muddled in fact that both sides in the dispute agreed that Judge Pickering did not meet the standards for impeachment. Nonetheless, he was impeached. This time it was President Thomas Jefferson who, on February 4, 1803, reluctantly but formally initiated it: the first impeachment of a federal judge. The country was still very polarized — arguably much more so than today. Republicans — Jefferson, James Monroe, Aaron Burr, Patrick Henry, and other strong states’ rights advocates such as populist New York Governor George Clinton — were “at daggers drawn” with Federalists — Washington, Adams, Hamilton, Marshall (Madison was somewhere in the middle). Pickering was a Federalist. He was an easy target.
Pickering had drafted New Hampshire’s constitution and was appointed that state’s chief justice. But illness and a nervous disorder soon affected his performance — to such a degree that the state’s House of Representatives tried to remove him from office, failing by just one vote. To solve their Pickering problem, New Hampshire kicked the can upstairs. It prevailed upon President Washington to appoint the judge to the federal district court. Yet before long Pickering’s problems declined into a funk of insanity and the bottle.
After much political toing and froing, with Jefferson preferring resignation to impeachment as a solution, voluntary removal was explored. However, Pickering’s replacement would have been a Republican . . . anathema to the Federalists. And no one was willing to ask the judge to resign. So impeachment was pursued. Trouble was that the constitutional grounds for impeachment, “Treason, Bribery or other High Crimes and Misdemeanors,” were an awkward match for Pickering’s insanity and alcoholism. No one attempted to sponsor a constitutional amendment to broaden the grounds for impeachment. Amendment could happen only through a lengthy and cumbersome process, and after all, the Constitutional Convention had carefully limited the grounds, in recognition of the ways in which impeachment had been abused in Great Britain.
Rather than arguing the merits of the case on constitutional grounds, the Republican-controlled House sought an up-or-down vote on Pickering’s impeachment, without much discussion or formal written articles of impeachment. His insanity was ignored; and what little debate ensued was based on his alcoholism.
The country was still very polarized — arguably much more so than today. Republicans were “at daggers drawn” with Federalists.
In the Senate trial, Pickering lacked counsel. The one attorney asked to represent him declined on the ground that he could not represent an insane man in a criminal trial. New Hampshire Senator William Plumer (F) predicted the outcome: “an insane man will be convicted of high crimes and misdemeanors.” And he was; by a strict party vote with nineteen Republicans voting yea and all seven Federalists nay (eight senators abstained).
As James F. Simon in What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States summarizes these events:
The Pickering impeachment was a partisan brawl. The Republican leadership manipulated the system, willfully stretching the constitutional language for impeachment to ensnare the judge. The impeachment stood . . . for the proposition that an insane man could be found guilty of high crimes and misdemeanors. But if there was no honor on the Republicans’ side, the Federalists hardly displayed more. [They] were willing to keep an obviously deranged and thoroughly incompetent man on the federal bench indefinitely to foil Republican designs.
Score one for the early Dershowitz.
Cut to the Chase
The next federal impeachment was introduced on the very same day that Judge Pickering was convicted . . . and this was a big one, aimed at US Supreme Court Associate Justice Samuel Chase. Chase was not an endearing character. Also a signer of the Declaration of Independence, he was ungainly and overbearing, with a “face so broad and ruddy he was dubbed ‘Bacon Face.’” Although a fellow Federalist, Alexander Hamilton publicly criticized him for suspected shady business deals. Fed up with Justice Chase’s rabid support for the Alien and Sedition Acts (which effectively nullified the First Amendment’s guarantee of free speech and freedom of the press by criminalizing criticism of the president or Congress), his outspoken Federalist political opinions broadcast from and off the bench (shades of tweeting?), his vitriolic attacks on President Jefferson and his party, and his highly biased procedural rulings, Republicans set the ball rolling in January 1804. Chase had gone so far as to harangue a grand jury in Maryland that Republican policies would sink constitutional government “into a mobocracy . . . and [would] rapidly progress until peace and order, freedom and property, shall be destroyed.”
His insanity was ignored; and what little debate ensued was based on his alcoholism.
The eight articles of impeachment against Chase detailed some of these misconducts. His blatant partisanship during trials was unacceptable by any reasonable standard of judicial conduct. Yet the question remained: did such conduct constitute impeachable offenses? John Randolph, the Republican House manager at the impeachment, attempted to make the case that any judge who committed technical errors of judgment could be removed by the same impeachment method as one guilty of treason, bribery, or other high crimes or misdemeanors.
With the prior removal of Federalist Pickering and the present impeachment of Federalist Chase — both for nothing resembling treason, bribery, or high crimes or misdemeanors — Chief Justice Marshall worried that Republicans would convert the Constitution’s impeachment clause into a blunt political instrument.
Unlike Pickering, Chase proved to be energetic in mind and spirit. For two and a half hours during his Senate trial, he laid out in elaborate detail his response to each article, including countering that, in his instructions to the Maryland grand jury, he had proudly been exercising the precious right of every citizen under the First Amendment — including a Supreme Court justice — to express his political opinions. This was an irony verging on hypocrisy that no one missed from such a zealous supporter of the Sedition Acts. But he was his own best defense team.
Chase was ungainly and overbearing, with a “face so broad and ruddy he was dubbed ‘Bacon Face.’”
Randolph, arguing the prosecution’s case, stated that impeachment could not be confined to indictable criminal offenses, but must include dereliction of duty. And he intended to prove that Chase, with malign political intent, had perverted the federal judiciary with his overbearing manner and biased rulings, concluding that an indictable offense was not necessary to find Chase guilty.
Even in the highly polarized, Republican-controlled Senate — which reflected the state of the union — Chase was found not guilty on all eight charges. As Simon concludes, “Credit must be given to those Republicans who voted their conscience. Although disgusted with Chase’s conduct, they concluded that the charges against him did not rise to the level of high crimes and misdemeanors required by the Constitution. Had Chase been convicted, moderates in both parties realized, there might be no limit to prosecution of politically unpopular judges” (or any other “civil officers” including presidents).
Score one for the later Dershowitz.
Chasing Precedent and Presidents
Randolph’s argument, in spite of not meeting the constitutional standards for impeachment, was not without merit. After Chase’s acquittal, Randolph rushed over to the House in a huff and introduced a constitutional amendment to make it easier to remove federal judges. Badly written and ill-targeted, it failed.
For the next century-plus impeachment made no serious splashes. One accusation of abuse of power in 1830 against a federal judge, James Peck, ended in acquittal (whether because the charge of abuse of power did not meet constitutional standards or because the senators were not convinced of his guilt, I don’t know), while the first attempt to impeach a president, James Buchanan, for corruption in 1860, went nowhere.
This was an irony verging on hypocrisy that no one missed from such a zealous supporter of the Sedition Acts.
The Civil War and its aftermath claimed two victims: Judge West H. Humphries was convicted for aiding the Confederacy (ostensibly treason); and President Andrew Johnson, who was not convicted. Johnson opposed the radical Reconstructionists in Congress who wanted to punish secessionists and ensure full civil rights to the freed slaves. Johnson ran afoul of a hastily drawn statute — passed over his veto — providing that the president could not dismiss a member of his cabinet without congressional approval. Johnson fired Secretary of War Edwin Stanton, a radical Reconstructionist, and was impeached. He missed conviction by one vote. The Tenure of Office Act (1867), as that law was known, was repealed in 1887 and found likely to have been unconstitutional in 1926.
In 1912, Judge Robert W. Archbald was impeached and convicted for what looked like bribery, and in 1936 Judge Halstead L. Ritter suffered the same fate for tax evasion, definitely a crime. Ditto for Judge Harry Claiborne, Federal District of Nevada, in 1986.
In mid-1974, the House Judiciary committee recommended articles of impeachment against President Richard M. Nixon, accusing him of three things: obstruction of justice, abuse of power, and contempt of Congress. At the minimum he probably would have been impeached and convicted, at least on the obstruction of justice charge, a definite crime, had he not resigned, even though eight Republican senators would have needed to join the Democrat majority to convict.
Before the Clinton impeachment and the infamous blue dress, two federal judges, Alcee Hastings and Walter Nixon — both from southern district courts — were impeached and convicted (in 1988 and 1989, respectively), for the crime of perjury.
At the minimum Nixon probably would have been impeached and convicted, at least on the obstruction of justice charge, a definite crime.
Make no mistake about it. President Clinton was not impeached for moistening his Monte Cristo on Lewinski’s lips. He was impeached for lying about it under oath — perjury. He committed a crime, yet he was not removed from office. What happened? Simply put, senators did not believe that the underlying event about which he lied — fellatio, a legal, albeit in this context, embarrassing activity — warranted removing a president from office. The Senators voted their consciences, disagreeing with the letter of the law.
Libertarians know this as the concept of jury nullification, or the doctrine of the fully Informed jury. Although nullification is not an official part of criminal procedure, it is the logical consequence of two rules governing the systems in which it exists. As Wikipedia puts it, “Jurors cannot be punished for reaching a ‘wrong’ decision (such as acquitting a defendant despite [his] guilt being proven beyond a reasonable doubt); and, a defendant who is acquitted cannot be tried again for the same alleged crime in front of another jury.”
John Jay, America’s first Supreme Court chief justice, recognized the right of every juror to vote his conscience notwithstanding the technical guilt of the accused. In his instructions to the jury in the 1794 Georgia v. Brailsford case, he said:
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision.
Jay emphasized that although juries retained that right, it should be exercised sparingly. During the days of the Fugitive Slave Law a great deal of nullification was exercised by northern juries. Renewed focus on the doctrine sprang up during the Vietnam War when a number of draftees refused to serve . . . and, coincidentally, with the founding of the Libertarian Party, which has taken up the task of widely disseminating the concept. More current controversies have developed some reasons for its current application. In a 1998 article, Vanderbilt University law professor Nancy J. King wrote that "recent reports suggest jurors today are balking in trials in which a conviction could trigger a three strikes or other mandatory sentence, and in assisted suicide, drug possession, and firearms cases."
Senators did not believe that the underlying event about which Clinton lied — fellatio, a legal, albeit in this context, embarrassing activity — warranted removing a president from office.
But is jury nullification reciprocal? Can it condemn as well as acquit? Logically, it seems so. As Wikipedia further elaborates: “Likewise, a jury can convict a defendant guilty even if no law was actually broken, although such a conviction may be overturned on appeal.” If a jury can find a perp not guilty based on its conscientious assessment of the law, then it must be able to find someone guilty, even though the evidence, according to the law, points to his innocence — because the jury is “following its conscience.” Doubtless this happened many times during Reconstruction and the Jim Crow era, and even more recently during Arizona governor Evan Mecham’s impeachment — which really took off when he used the word “pickanniny” (though this was a state, not a Federal proceeding). While a jury’s guilty verdict can be contested through the appeals process, this was usually a dead end during Reconstruction and Jim Crow, and of course for impeachment trials, which are not subject to appeal.
So where do Dershowitz’s “must break a law” and “need not break a law” standards apply in the Clinton impeachment? Contrary to initial suspicions, Dershowitz did not then indulge in partisanship. Ironically, although he averred that impeachment did not require a crime, he was a Clinton partisan who opposed his impeachment. Additionally, he believed (and still does) that impeachment is tantamount to a revolution or coup d’état without guns and must not be invoked except under the direst circumstances.
Which brings us to the impeachment trial of Donald J. Trump. House managers drew up two impeachment articles against President Trump: abuse of power and obstruction of Congress. Obstruction of Congress is similar to contempt of Congress, a tried and true charge recognized since the 1790s. However, due to the Constitution’s separation of powers clauses, whether the charge can be lobbed at and have it stick to the president without a Supreme Court hearing and ruling, is, ahem . . . a Mexican standoff. On the one hand, Congress issued subpoenas to the executive expecting compliance; on the other hand, the executive refused, claiming executive privilege. Most knowledgeable observers believe the conflict should have properly landed on the Supreme Court’s lap, because it was a separation of powers conflict. However, the House managers were in a rush. Had the conflict been resolved in the Supreme Court to the benefit of the House managers, and had President Trump refused to comply, then, in this writer’s opinion, a “high crime” would have been committed and unambiguous grounds for removal from office would have been triggered.
Might these abuses of power warrant impeachment, or are they analogous to blowjobs?
And what about the abuse of power charge? Abuse of power is a portentous, go-to accusation when a public official’s conduct is unbecoming yet short of criminality. But it is a concept difficult to precisely define — like Justice Potter Stewart’s quip about his inability to define pornography, yet his certitude that “I know it when I see it.” Perhaps that is why the Constitution’s framers did not include it in their list of impeachable offenses. Donald Trump’s inclusion of his name on the COVID-19 relief checks to give the unwashed the impression that — recalling the previous, glibly-labeled “Obama bucks” — he was personally responsible for the windfall is, in my opinion, an abuse of power. Ditto for Bill Clinton’s gratuitous pardon of Marc Rich on Clinton’s last day in office. Rich had been indicted on 65 criminal counts including the biggest tax evasion charge in the US to date. Clinton later expressed regret at the pardon — a clear indication that he believed he’d abused his power. Might these abuses of power warrant impeachment, or are they analogous to “blowjobs”? (In the interest of fairness, the latter case might have been considered from the Constitution’s perspective of “bribery,” since Rich (or his wife) had contributed $1,500,000 to the Clintons and their party. But in the context of impeachment, it’s a moot point, since the following day Clinton was out of office.)
Donald Trump’s abuse of power accusation concerned his request to Ukraine’s president, Volodymyr Zelensky, to investigate Joe Biden and his son Hunter’s financial dealings with Burisma Holdings, a Ukrainian energy company, for — you guessed it — abuse of power while Joe was vice president. The accusation against Trump, on the other hand, looked at his request to Zelensky from an entirely different perspective: it accused the president of misusing his power to dig up dirt on a potential political rival.
Was it partisanship? Or careful weighing of the evidence per the Constitution’s strictures? Or even a reliance on jury nullification?
Interpreting Trump’s “perfect phone call” from the first perspective trumps the second allegation, since it proffers reasonable doubt. And, anyway, digging up dirt on one’s political opponent — especially if the dirt is real — is not a crime (unless of course one resorts to criminal behavior, as in the Watergate break-in).
At the Senate trial President Trump was acquitted, mostly along party lines. Was it partisanship? Or careful weighing of the evidence per the Constitution’s strictures? Or even a reliance on jury nullification? The last explanation — that the senators voted according to their consciences — provides a counter of sorts to Dershowitz’s assertion that impeachment must be for criminal behavior. Should it be?
According to John Jay’s interpretation of how juries should decide guilt — on the facts of the case — Dershowitz’s later interpretation, that an impeachable offense must be based on an actual crime, is correct. However, once Jay’s admission of a jury’s right to decide the propriety of the law is added, then anything goes: a jury can follow its conscience irrespective of the facts in a case.