In a column published in The Hill on Tuesday, Professor Alan Dershowitz draws the sweeping conclusion that “abuse of power and obstruction of Congress” – the two grounds for impeachment set forth in the House Judiciary Committee’s proposed articles of impeachment – are somehow borderline unconstitutional.
This statement is not correct as a matter of law or as precedent. As a matter of logic, it cannot be, either.
Dershowitz argues, first, that “Neither are high or low crimes or misdemeanors.” Second, he argues that “Neither are mentioned in the Constitution.” Third, he claims that “Both are so vague and open-ended that they could be applied in partisan fashion by a majority of the House against almost any president from the opposing party.”
So let’s get this straight: If the president assassinated the entire slate of potential Democratic presidential nominees, by Dershowitz’s reasoning, he could not be impeached because “assassination” is not expressly cited in the Constitution? Of course, this is plainly wrong. There is no legal support for the theory that the Constitution can only apply to the extent that express terms are mentioned in its wording. If that were the case, the Supreme Court’s massive body of constitutional case law – interpreting a slew of vague terms dotting the relatively terse text of the Constitution – would not exist.
The question for jurists and constitutional scholars is how to construe the terms “high crimes and misdemeanors.” On their face, those words themselves are “vague” – to use Professor Dershowitz’s word – but no one could reasonably suggest that they are therefore unenforceable. All four law professors who testified before the House Judiciary Committee on impeachment agreed that abuse of office qualifies — all of them. So Dershowitz is out on a very lonely limb here.
Which brings us to the House article on the obstruction of Congress. The gravity of this charge is hard to overstate. The integrity of our federal system of government depends on each branch being subject to checks by the other two branches; that way, no one branch becomes too powerful. Having fled a monarchy, the Framers of the Constitution understood that when a single branch gets too much power, individual rights suffer. The government will start to bully ordinary people for arbitrary things like race, religion, political views, etc. — and will get away with doing so, if there is no other branch poised to stop it. Refusing wholesale to recognize the oversight authority of Congress in connection with impeachment – as President Trump has admittedly and singularly done – inflicts severe damage to the system of checks and balances by infantilizing Congress to the exclusive benefit of the presidency.
Presumably, this is precisely why a prior Congress charged the second and third articles of impeachment against President Richard Nixon, which had to do with obstruction of Congress. The fourth article of impeachment against President Bill Clinton – passed by the House Judiciary Committee but not the full House of Representatives – also claimed that he obstructed the legislative branch. So Dershowitz, again, is flatly wrong to suggest that the House’s proposed second article of impeachment against Trump has no legal or historical basis.
To be sure, people might disagree over whether to do anything about these allegations against Trump and the virtually unrebutted factual record supporting them. We can all expect Republicans in the Senate to do nothing.
But as fellow legal educators, let’s be clear to the American public: These two articles of impeachment are very serious business, warranting sober and serious scrutiny. What’s at stake is nothing less than the legitimacy of our representative democracy.
Kimberly Wehle is a former assistant United States attorney, a former associate independent counsel in the Whitewater investigation, and a professor at the University of Baltimore Law School. She is a CBS News legal analyst, a BBC News contributor, and author of “How to Read the Constitution and Why.” You can follow her on Twitter @Kim_Wehle.