Case against impeachment?

  • How close will this one get?

Veteran journalist Bob Woodward’s latest book Fear: Trump in the White House is the latest – and arguably the most high-profile – in a series of books that underline the danger that US President Donald Trump poses to American interests, at the very least, if not presenting the case for his impeachment – without spelling out as such.

Other recent books that contribute in this regard are, of course, Michael Wolff’s Fire and Fury, James Comey’s A Higher Loyalty Omarosa Manigault Newman’s Unhinged and Sean Spicer’s The Briefing, among many others.

Of course there are titles that are entirely dedicated to bringing down the Trump presidency, Impeachment: A Citizen’s Guide, To End a Presidency, The Case for Impeachment for instance.

Amidst these echoes in favour of impeachment there’s a book that for most sticks out like a sore thumb: The Case Against Impeachment. Its author Alan Dershowitz, renowned lawyer and academic, is no stranger to controversy. Among his 37 books, there are cases against BDS, for moral clarity on Hamas and Gaza, against Israel’s enemies, for resolution of Arab-Israeli conflict and for Israel.

The Case Against Impeachment offers, in no uncertain terms, the legal defence for Trump against impeachment based on two arguments.

First, his claim that there is a lack of evidence for a crime serious enough to merit impeachment. Dershowitz argues that Trump’s alleged working with Russia during his election campaign, even if proven true, can only be held as a damning verdict against his politics and not his presidency.

Second, any impeachment move could result in a judicial review, if Trump simply refused to leave the White House even after being found guilty by the Senate. With the Supreme Court unwilling to get involved in impeachment proceedings it could result in a stalemate.

The author’s defensiveness is visible throughout The Case Against Impeachment – nowhere more so than the concluding remarks

‘[In] an ordinary criminal trial, a judge would be obligated to rule on the motion, and if he concluded that the indictment did not charge a crime under the federal criminal code… he would be obligated to dismiss the charges. Could a chief justice presiding at the Senate trial of a president do that? Would he be obliged to? If he did, could his dismissal be overruled by the Senate? Could the Senate simply refuse to accept the chief justice’s ruling? Could it be appealed to the full Supreme Court? We don’t know the answer to these and other hypothetical questions, because the framers of our Constitution did not provide textual answers.’

The Case Against Impeachment largely is a compilation of Dershowitz’s recent articles centering around Trump, which have been modified to be squeezed into a book. Most of these understandably focus on the Russia investigation, which is at the heart of the argument against Trump.

Other issues like the dismissal of FBI director James Comey are also addressed, with the book arguing that theoretically Trump can’t be found guilty of obstructing justice as long as he has exercised powers that the constitution authorises, which in turn means that unless an ulterior motive for Comey’s removal can be proved, Trump is safe.

No US president has ever been impeached. The House of Representatives impeached Andrew Johnson and Bill Clinton, but they did not have enough votes in the Senate for their conviction. Richard Nixon’s resignation probably forestalled an inevitable impeachment.

By underlining just how historically mammoth Trump’s impeachment would be, Dershowitz argues that it cannot solely be a legislative decision. The book argues that dubbing the process legislative rather than judicial, ignores the separation of powers in the US constitutional system and the checks and balances that it ascertains between the three government branches.

‘Imagine a case of a tyrannical president who committed numerous high crimes and misdemeanors that endangered our nation greatly and that clearly justified impeachment—but the Senate vote to remove him fell a few votes short of the required two-thirds. No reasonable construction of the constitutional text would justify removal. How would ignoring the two-thirds requirement be different than ignoring the substantive criteria? The whims of Congress cannot overrule the actual words of the Constitution.’

Dershowitz’s argument has been largely dumped by legal experts who maintain that if the ongoing Special Counsel investigation under former FBI director Robert Mueller provide concrete evidence of Russian interference in the 2016 election it would be the curtain call for Trump.

The author’s defensiveness is visible throughout The Case Against Impeachment – nowhere more so than the concluding remarks.

‘I hope this short book will provoke debate, not name-calling. The issues I raise are serious and their discussion is essential to democratic discourse. So please respond to my positions. Disagree with me; propose better arguments; defeat me, if you can, in the marketplace of ideas.’

That should not be a problem given the sheer outnumbering amongst the vendors of the conflicting arguments.