“Congresswoman Maxine Waters recently put it more succinctly in the context of a presidential impeachment. Here’s what she said: ‘Impeachment is whatever Congress says it is. There is no law. But this lawless view would place Congress above the law. It would place Congress above the Constitution. For Congress to ignore the specific words of the Constitution itself and substitutes its own judgments would be for Congress to do what it’s accusing the president of doing.” – Professor Alan Dershowitz, 1/27/2020

FoxNews.com reports that

Harvard Law School Professor Alan Dershowitz, delivering a spirited constitutional defense of President Trump at his Senate impeachment trial Monday night, flatly turned toward House impeachment managers and declared they had picked “dangerous” and “wrong” charges against the president — noting that neither “abuse of power” nor “obstruction of justice” was remotely close to an impeachable offense as the framers had intended.

In a dramatic primetime moment, the liberal constitutional law scholar reiterated that although he voted for Hillary Clinton, he could not find constitutional justification for the impeachment of a president for non-criminal conduct, or conduct that was not at least “akin” to defined criminal conduct.

“I’m sorry, House managers, you just picked the wrong criteria. You picked the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents,” Dershowitz told the House Democrats, including head House impeachment manager Rep. Adam Schiff, D-Calif.

He said that “all future presidents who serve with opposing legislative majorities” now face the “realistic threat” of enduring “vague charges of abuse or obstruction,” and added that a “long list” of presidents have previously been accused of “abuse of power” in various contexts without being formally impeached.

The list included George Washington, who refused to turn over documents related to the Jay Treaty; John Adams, who signed and enforced the so-called “Alien and Sedition Acts”; Thomas Jefferson, who flat-out purchased Louisiana without any kind of congressional authorization whatosever; John Tyler, who notoriously used and abused the veto power; James Polk, who allegedly disregarded the Constitution and usurped the role of Congress; and Abraham Lincoln, who suspended habeas corpus during the Civil War. Ronald Reagan, George H.W. Bush, and others would also probably face impeachment using the Democrats’ rules, Dershowitz said.

“Abuse of power,” he argued, has been a “promiscuously deployed” and “vague” term throughout history. It should remain a merely “political weapon” fit for “campaign rhetoric,” Dershowitz said, as it has no standard definition nor meaningful constitutional relevance.

Dershowitz then said he was “nonpartisan” in his application of the Constitution, and would make the same arguments against such an “unconstitutional impeachment” if Hillary Clinton were on trial — passing what he called the “shoe on the other foot” test.

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

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.”

Johnson, Dershowitz observed, was impeached for violating the Tenure of Office Act — a statute essentially designed to create the pretext to impeach Johnson. By passing the law first, lawmakers expressly recognized that criminal-like conduct was needed for impeachment, Dershowitz argued.

Indeed, a “close review of the history” near in time to the founding of the United States, Dershowitz said, revealed that the founders explicitly wanted to avoid making impeachment so arbitrary and powerful that it effectively created a “British-style parliamentary democracy,” in which presidents served at the pleasure of the legislature.

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.

Responding to reports that former national security adviser John Bolton has written in his forthcoming book that Trump told him he wanted to link Ukraine aid to an investigation of the Bidens, Dershowitz argued that even an explicit “quid pro quo” would not constitute an impeachable “abuse of power.”

“Nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power, or an impeachable offense,” Dershowitz said. “That is clear from the history. That is clear from the language of the Constitution. You cannot turn conduct that is not impeachable into impeachable conduct simply by using terms like ‘quid pro quo’ and ‘personal benefit.'”

“It is inconceivable,” Dershowitz said, that the framers would have intended such “politically loaded terms” and “subjective'” words without clear definitions to serve as the basis for impeachment.

Fearing a partisan impeachment process, the framers had rejected the offense of “maladministration” as a basis for impeachment, Dershowitz noted, and “abuse of power” was similarly vague.

Dershowitz wrapped up his argument, steeped in historical and textual analysis of the constitution and founding documents, by urging senators to reject the “passions and fears of the moment,” as the framers had similarly warned.

A series of Republican senators lined up to shake Dershowitz’s hand after his presentation concluded.

I will confess that, over the years, when Professor Dershowitz would appear on a news program defending Clinton or some Liberal clause, I would think that he was just another Liberal Pundit.

However, in the last few years, I have come to respect the man.

He is brilliant and he knows the Constitution and our legal system inside and out.

If you would have told me years ago that the same Liberal Pundit who appeared on all of those news programs years ago defending President Clinton would, years later, be the one to give a well-needed lesson in Constitutional Law to Congressional Democrats, I would have thought that you were crazy.

However, that is exactly what happened.

Professor Dershowitz, along with the other members of Trump’s Legal Defense Team, continued yesterday what they had begun on Saturday: a complete evisceration of the House Managers’ very weak and totally political case for impeaching President Donald j. Trump.

The Defense Team covers everything from the history of impeachment to the corruption of the Bidens’ Ukraine Scandal to Obama’s “flexibility” with Putin.

To label their defense strategy as being “scorched earth” would be an understatement.

The Democrats went into the meeting buoyed by the leaked information from John Bolton’s book.

They left with smoke coming from the back of the pants of their $2,000 suits.

I hope that the Defense Team, coordinated by Jay Sekulow, follows the same strategy today.

It is entertaining, informative, and, most importantly, it’s a winner.

For putting our country through all of this stress and conflict for 3 years, simply because they lost the Presidential Election, the Democrats need to be embarrassing, and after President Trump is acquitted, some of them need to be indicted and frog-marched to prison in orange jumpsuits.

The Democrats have forgotten that they were elected to serve American Citizens, not special interest groups, and, most certainly, not themselves.

If they continue on the path to Marxism which they have undertaken, they deserve to go the way of the Whigs and be banished into the dust of history.

If that happens, they will have no one to blame but themselves.

Until He Comes,

KJ