The Senate should reject Dershowitz argument on Johnson impeachment

Oliver Wendell Holmes Jr. once observed that “lawyers spend a great deal of their time shoveling smoke.” If that is the case, the briefs filed by both sides in the impeachment of President Trump may be enough to give the nation emphysema. The briefs are filled with dubious factual, historical, and constitutional claims that seem directed more at the public than at the Senate. For the most part, such claims will dissipate with the fog of advocacy. However, one argument could have a more damaging impact.

The White House briefs appear structured around the claim, to be argued by Harvard law professor emeritus Alan Dershowitz, that the Constitution is literal in when it refers to “high crimes and misdemeanors” as criminal violations. So Dershowitz maintains, without an article of impeachment based on an actual crime, then there is no legitimate impeachment. For my testimony before Congress during the impeachment hearings of both President Clinton and Trump, I took the opposing view that a president can be impeached for a noncriminal act. This view is based on the history of impeachment in both England and the United States, where articles commonly included noncriminal acts. In England, impeachments were based on a wide variety of acts, including “mischiefs done to our Lord,” “pernicious advice to the crown” and “malversations and neglects.”

In the United States, the Framers adopted the English standard of “high crimes and misdemeanors,” but they warranted a higher standard so that a president would not be forced to serve “at the pleasure of the Senate.” Yet the Framers referred to nonpublic offenses, including violation of the public trust, as falling within the scope of the standard in the Constitution. Indeed, the majority of impeachments in the United States have contained noncriminal allegations. What is different in this case is that it is the first time a president has been impeached solely on noncriminal grounds. As I said in my testimony, that makes this a much more difficult impeachment, particularly on the rushed and incomplete record created by the House.

Notably, Dershowitz and I both believe that the case most relevant to the Trump impeachment is the 1868 impeachment of President Johnson, but for very different reasons. I testified that both impeachments were narrow and propelled by deep hatred for each president. Moreover, the Johnson impeachment was largely based on a trap door crime created specifically for him. Congress expected Johnson to fire his war secretary because of political differences, and lawmakers made it not just a crime but a “high misdemeanor” to do so. It was a manufactured crime for their malicious political purpose. The House has shown the same blind rage in the Trump impeachment, and its second article alleging obstruction of Congress by the president is as manufactured as the Johnson impeachment articles.

The House created arguably the shortest period of investigation in history for a presidential impeachment, and then declared that Trump had to turn over evidence and release witnesses in that brief time rather than litigate the underlying issues in the courts. President Nixon and Clinton both were able to litigate such claims all the way to the Supreme Court before facing impeachment in Congress. But Dershowitz is now relying on an argument made by Supreme Court Justice Benjamin Curtis in defense of Johnson.

Dershowitz claimed that Curtis “argued successfully to the Senate that criminal like conduct is required. That argument prevailed.” But I believe Dershowitz is mistaken in his interpretation of the argument, along with the basis for the acquittal of Johnson. First and foremost, Curtis primarily addressed the violation of the Tenure in Office Act, which no one denied as being statutorily defined as a criminal “high misdemeanor.” Indeed, it was clearly defined and Johnson himself knew he was committing it. He had rightfully believed that the criminal provision was unconstitutional.

It was that criminal violation which was the subject of all 11 articles of impeachment against Johnson, and most of the argument of Curtis. He declared, “As to those articles there is some law unquestionably, the very gist of that charge being that he broke a law.” It was only at the end of his argument that Curtis turned to the tenth article, which indeed drew the lowest vote in the House. It was an absurd collection of noncriminal acts, which Curtis referred to as “extraordinary peculiarities” such as bringing Congress “into disgrace, ridicule, hatred, contempt, and reproach,” as well as making “with a loud voice certain intemperate, inflammatory, and scandalous harangues.” Curtis rightfully ridiculed the articles as evidence that the House “erected itself into a school of manners” in the process.

Johnson was saved by seven Senate Republicans who switched sides to reject his illegitimate impeachment. It was not due to the absence of a criminal allegation but due to the manufactured quality of the charges. The underlying conduct did not warrant conviction as a high crime and misdemeanor. While Curtis argued that the language of the Constitution mirrored criminal lexicon, his statement that it “designated impeachable offenses as offenses” was meant to argue that the Senate should consider itself a court rather than some heated political forum on impeachment.

The most powerful argument made by Curtis concerned his attack on the criminal allegation itself as a crime created solely to impeach Johnson. That was the position that had “prevailed” rather than an argument that impeachment cannot include any noncriminal allegations. Not only do I believe the interpretation of the Johnson trial is fundamentally mistaken, but it is a mistake to ask senators to base their votes on such a widely rejected theory. Impeachments can be based on noncriminal acts, but that does not mean the noncriminal acts in this case are impeachable.

Furthermore, Trump should not wish to prevail on such a flawed theory, leaving history to debate whether he was acquitted on the weight of the evidence or on an erroneous interpretation. There are ample reasons to vote against this impeachment. The witnesses who testified along with me in the House impeachment inquiry described the case against Trump as an “attempt to abuse power.” It is already difficult enough to bring a purely noncriminal impeachment, but to do so on an attempt at abuse of power raises serious concerns over the subjectivity and fluidity of such claims.

So that is the true meaning of the Johnson trial. It was an impeachment formed in rage and devoid of all reason. Indeed, it was the fourth such attempt to impeach Johnson and his leading opponent, Representative Thaddeus Stevens, confronted reluctant House members by demanding, “What good did your moderation do you? If you do not kill the beast, it will kill you.” They responded by impeaching Johnson on trumped up charges. Ultimately, what began as a disgrace for the House turned into one of the finest moments for the Senate when those seven Republicans upheld their oaths and decided to cross the aisle and acquit a president they despised.

The Johnson impeachment showed us that even criminal acts can be rejected as falling short of the standard of the Constitution. Before his trial, Johnson declared, “Let them impeach and be damned.” He was right. Had the Senate convicted him, we would have invited endless contrived impeachments. That is the argument that “prevailed” in the Johnson case.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.