WASHINGTON — President Donald Trump’s impeachment trial has become the latest battleground in the fight between his Republican allies and House Democrats over what constitutes an impeachable offense.
Trump’s Republican allies have argued for weeks that House Democrats had no grounds to impeach the president for abuse of power and obstruction of Congress, because neither of those charges are crimes found in the federal penal code. The president’s legal team, in a 110-page legal brief filed Monday, reiterated the argument and dismissed the charges as “illegitimate.”
Constitutional law scholars have widely rejected the argument, citing letters and essays written by the framers of the Constitution that describe impeachment as a tool to hold presidents accountable for undefined abuses of power. The House impeachment managers prosecuting the case against Trump argue his dealings with Ukraine were exactly the sort of actions the framers sought to combat with impeachment.
At the core of the debate is each side’s interpretation of what the framers meant when they listed “high crimes and misdemeanors" as impeachable offenses.
What Trump’s lawyers argue
Alan Dershowitz, a constitutional law professor tapped to serve on Trump’s legal team, argued on CNN last Sunday that “the framers intended for impeachable conduct only to be criminal-like conduct or conduct that is prohibited by the criminal law."
Dershowitz said he will make the case before senators that “even if everything that is alleged by the House managers is proven, or taken as true, they would not rise to the level of an impeachable offense.”
The argument strays from one he made to CNN in 1998, during the impeachment of President Bill Clinton, when he said an impeachable offense “certainly doesn't have to be a crime. If you have somebody who completely corrupts the office of president, and who abuses trust and who poses great danger to our liberty, you don't need a technical crime.”
Dershowitz, in a series of tweets this week, said he retracted his Clinton-era assessment after “thoroughly” researching the issue. The self-declared Democrat who wrote the book “The Case Against Impeaching Trump” said on Twitter that his comments back then “relied on the academic consensus that a crime was not required.”
What constitutional law scholars argue
Prominent constitutional law scholars have pushed back on the notion that only statutory crimes are subject to impeachment.
In an open letter delivered to senators on Monday, 15 constitutional law professors said that “the framers’ use of the phrase ‘high crimes and misdemeanors’ has long been understood to extend to abuses of power not specified in the U.S. Code.”
The professors — including President Reagan’s former Solicitor General Charles Fried and Harvard Law Professor Lawrence Tribe -- cited the definition of high crimes and misdemeanors that Alexander Hamilton detailed in The Federalist Papers.
Hamilton wrote that high crimes and misdemeanors are “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
Jens David Ohlin, vice dean at Cornell Law School, said in an interview, “There’s no reason that the articles of impeachment have to allege a statutory crime.”
“Congress just needs to be satisfied that a president is so corrupt, and his or her behavior so damaging, that the national interest requires his or her removal,” Ohlin said.
The argument that abuse of power is subject to impeachment also has been made by Attorney General William Barr. In a June 2018 memo unrelated to the current impeachment proceedings, Barr wrote that “abuses of discretion” by a president would be “subject to the judgment of Congress through the impeachment process.”
Jonathan Turley, a constitutional law professor at George Washington University, argued in a Washington Post op-ed piece published Tuesday that Trump’s lawyers have “gone too far” by “arguing that you cannot impeach a president without a crime.”
Turley, who served as the House GOP’s expert witness during the House Judiciary Committee’s impeachment hearing, said the view presented by Trump’s lawyers “is a view that is at odds with history and the purpose of the Constitution.”
“There is a vast array of harmful and corrupt acts that a president can commit outside of the criminal code,” Turley wrote.
What does Trump say?
Asked by reporters at the World Economic Forum in Davos, Switzerland, Wednesday if abuse of power is an impeachable offense, Trump replied: “Well, it depends,” before segueing into a defense of his record as president.
"If you take a look at this, and from what everybody tells me ... I’m honest,” Trump said. “I make great deals. I've made great deals for our country.”
With Tom Brune