politics

Should President Trump Be Impeached?

Harvard Law School
Dean, UC Berkeley School of Law
Genesis
Response
Penultimate
Finale

Erwin Chemerinsky

Dean, UC Berkeley School of Law

December 1st, 2019
To be clear, nothing in Professor Dershowitz’s posts denies that President Donald Trump engaged in a serious abuse of power in using the powers of his office for his own political gain in conditioning aid to the Ukraine on that country investigating his potential political rival, Joe Biden. Nor does Professor Dershowitz deny that soliciting or receiving the assistance of a foreign government in a federal election violates federal law.
The only disagreement between us is whether criminal conduct is required in order for there to be an impeachable offense under the Constitution. Even under this standard, I believe that there are grounds for impeachment: President Trump’s obstruction of justice with regard to the Mueller investigation. Moreover, it is a federal crime to solicit something of value from a foreign government in an election campaign. But I believe that a serious abuse of power can be a basis for impeachment even if it is not criminal conduct. Why is this a better way to read the Constitution than Professor Dershowitz’s interpretation? First, statements at the Constitutional Convention and in the Federalist Papers were clear that “high crimes and misdemeanors” was not limited to criminal acts, but was meant to include significant abuses of power. Professor Dershowitz ignores the words of Alexander Hamilton that the Constitution authorizes impeachment for “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Second, historical practice confirms that “high crimes and misdemeanors” does not require a criminal act. Andrew Johnson was the first president to be impeached. He was impeached in 1867 for firing Secretary of War Edwin Stanton in violation of the Tenure in Office Act. After the end of the Civil War, Congress became increasingly frustrated with Johnson, a Southerner from Tennessee, presiding over Reconstruction. Congress adopted the Tenure in Office Act of 1867 to keep Johnson from firing Lincoln's cabinet. The Act declared that such a firing would be deemed a “high misdemeanor.” The Supreme Court subsequently indicated that the Tenure in Office Act violated separation of powers. Nonetheless, the House impeached and Johnson avoided removal by just one vote in the Senate even though the conduct was not criminal. Third, the preferable approach is to read the Constitution as allowing impeachment for serious abuses of power. Imagine a president who repeatedly engages in unconstitutional conduct that is not criminal: say using American troops in foreign countries in an outrageous manner to protect the president’s own personal interests at great loss of life, or refusing to allow the spending of money authorized and appropriated by Congress, or by ordering criminal prosecutions of his enemies, or continually violating the Emoluments Clauses. What remedy exists under Professor Dershowitz’s approach? If it is a lame-duck president, none would exist. But even for a president facing re-election the Constitution should not depend on the voters’ preferences. I have enormous respect for Professor Dershowitz and all he has accomplished in his very impressive career. But in saying that an impeachable offense requires a crime, Professor Dershowitz is rejecting the views of the vast weight of scholarly opinion. His position does not do nearly enough to allow for presidential accountability and risks undermining one the most basic tenets of the rule of law: no one, including the president is above the law.
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