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Abuse Of Power Isn’t A Crime — But It Can Be An Impeachable Offense

“Was that wrong?” George Costanza asks in a 1991 episode of “Seinfeld” after his boss confronts him with a report that “you and the cleaning woman have engaged in sexual intercourse on the desk in your office.” George says he has to “plead ignorance,” because no one “said anything to me at all when I first started here” suggesting “that sort of thing was frowned upon.”

Donald Trump’s legal team is trying out a version of the Costanza defense, arguing that the articles of impeachment against him are constitutionally deficient because they do not allege any violations of the law. That claim is so dubious that even Trump’s lawyers don’t believe it.

The president is accused of abusing his power for personal gain by pressuring the Ukrainian government to announce an investigation of a political rival. The scheme allegedly included temporarily blocking $391 million in congressionally approved military aid.

The Government Accountability Office recently concluded that Trump’s hold on that money violated the Impoundment Control Act. But the articles of impeachment do not mention that law or any other statute that Trump is accused of violating.

Is that a fatal flaw, as Trump lawyer Jay Sekulow and White House Counsel Pat Cipollone insist? Not according to George Washington University law professor Jonathan Turley, the sole Republican witness at the House Judiciary Committee’s Dec. 4 impeachment hearing.

Turley, who harshly criticized the impeachment process as rushed and incomplete, warned that abuse of power allegations can be dangerously amorphous when detached from the elements required to prove a crime. He nevertheless conceded that “the use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.”

Turley emphasized that “high crimes and misdemeanors” are not limited to statutory violations. The phrase “treason, bribery, or other high crimes and misdemeanors,” he observed, “reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts).”

Turley noted that James Madison, although he opposed including “maladministration” as grounds for impeachment, said the process was meant to address “the incapacity, negligence or perfidy of the chief Magistrate.” Alexander Hamilton likewise said impeachment was aimed at “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Harvard law professor Alan Dershowitz, a member of Trump’s legal team, now takes what he concedes is the minority position, arguing that an impeachable offense has to be a crime. But he was singing a different tune during Bill Clinton’s impeachment in 1998.

“It certainly doesn’t have to be a crime,” Dershowitz said on CNN. “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.”

Another Trump lawyer, Rudy Giuliani, claims the articles of impeachment are unconstitutional because “abuse of power and obstruction of Congress are not crimes of any kind.” But during a 2018 discussion of Independent Counsel Robert Mueller’s investigation, Giuliani declared that a preemptive presidential self-pardon, while legal, “would just be unthinkable” and “would lead to probably an immediate impeachment.”

In other words, a self-pardon would not be a crime, but it would still be an impeachable offense. Similarly, a president who used his authority over the Justice Department to quash investigations of his friends and launch investigations of his enemies would be violating the public trust in a way that could justify impeachment, even if everything he did was technically legal.

Without a statutory basis, Sekulow and Cipollone argue, abuse-of-power charges effectively allow legislators to impeach the president because of policy disputes or partisan animus. But there is also a danger in letting a president off the hook because no one ever explicitly said his particular brand of misconduct was frowned upon.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at www.creators.com.

GOP Witness Turley Rejects White House Defense Of Trump

Reprinted with permission from Alternet

When the House Judiciary Committee held a public hearing of constitutional scholars to testify as a part of the impeachment inquiry into President Donald Trump’s conduct, the Democratic-controlled body allowed the minority of Republicans to bring forth their own witness to argue in the White House’s defense. That role went to Jonathan Turley, who was critical of the House’s proceedings and was skeptical about the evidence of the president’s guilt.

But as the case moved from the House to the Senate for Trump’s trial, Turley has become critical of the way the White House is defending the president.

In a new op-ed this week in the Washington Post, Turley — who was widely criticized for putting forward weak defenses of Trump in the House — said that even he can’t support Trump’s new line of defense against the core charge of abuse of power.

The new line, put forward most prominently by Alan Dershowitz, is that “abuse of power” is not actually an impeachable offense. And other lawyers for the president say you can’t impeach the president without a criminal charge.

Turley isn’t buying it.

“It is a view that is at odds with history and the purpose of the Constitution,” Turley wrote. “While Framers did not want terms such as ‘maladministration’ in the standard as dangerously too broad, they often spoke of impeachable conduct in noncriminal terms, such as Justice Joseph Story referring to ‘public wrongs,’ ‘great offenses against the Constitution’ or acts of ‘malfeasance or abuse of office.’ Alexander Hamilton spoke of impeachment trials as addressing ‘the misconduct of public men, or, in other words, from the abuse or violation of some public trust.’”

Overall, Turley is still critical of the Democrats’ impeachment effort, especially the charge of obstruction of Congress. But he warned that senators may be unwilling to accept the White House’s sweeping claims in Trump’s defense, even if the president himself can’t resist making the absolutist claim that he did nothing wrong.

“There is a vast array of harmful and corrupt acts that a president can commit outside of the criminal code,” Turley wrote. “While I believe that articles of impeachment are ideally based on well-defined criminal conduct, I do not believe that the criminal code is the effective limit or scope of possible impeachable offenses. If some of the president’s critics are adopting a far too broad understanding of impeachable offenses, the White House is adopting a far too narrow one.”

Trump and his defenders are making a “mistake,” Turley said, “by reducing the definition of impeachable conduct to the criminal code. It is an argument that is as politically unwise as it is constitutionally shortsighted.”

In 1998, Dershowitz Said President Who ‘Abuses Trust’ Merits Impeachment

Reprinted with permission from Alternet

Twenty-two years ago, Harvard law professor Alan Dershowitz argued in support of impeachment if a president “corrupts the office,” “abuses trust,” and “poses great danger to our liberty.”

On Friday President Donald Trump named Dershowitz to his team of attorneys who will defend him during his Senate impeachment trial.

Impeachment, Dershowitz told host Larry King on CNN in 1998, “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.”

He also seemed to suggest Congress should consider if a president has committed “great offenses of state,”  “whether they try to subvert the Constitution,” by going “behind the back of Congress” and “lying repeatedly.”

As Mediaite reports, Dershowitz went on MSNBC on Friday evening, telling Ari Melber the opposite of what he said two decades ago.

“Abuse of power, even if proved, is not an impeachable offense,” Dershowitz claimed. “That’s what the Framers rejected. They didn’t want to give Congress the authority to remove a president because he abused his power.”

The Constitution has not changed over the past 22 years.

Dershowitz did warn about the gravity of impeachment.

“To impeach a president is like a non-violent revolution,” he said. “It is the most dramatic act of undoing democracy,” he added.

Legal Experts Roast GOP Senators For Flouting Constitutional Duty

Reprinted with permission from Alternet

Senate Majority Leader Mitch McConnell and South Carolina Sen. Lindsey Graham (who chairs the Senate Judiciary Committee) have made it abundantly clear that if President Donald Trump is indicted on articles of impeachment by the U.S. House of Representatives — which is likely — and those articles go to the U.S. Senate for consideration, they have no intention of seriously considering the evidence. And legal experts Benjamin Wittes and Quinta Jurecic, in a December 16 article for The Atlantic, emphasize that both of those high-ranking Republicans are failing to perform their constitutional duties as U.S. senators.

Wittes and Jurecic are both sought out for their legal expertise. Wittes is editor-in-chief of Lawfare, while Jurecic is Lawfare’s managing editor. Both are freelance contributors to The Atlantic, and Wittes is a frequent guest on MSNBC.

Citing Article I, Section 3, Clause 6 of the U.S. Constitution, Wittes and Jurecic assert that according to the Founding Fathers, “the Senate shall have the sole power to try all impeachments” — and when the Senate is in session “for that purpose,” United States senators “shall be on oath or affirmation.”

“The requirement of a special oath for senators sitting as impeachment triers of fact is unique in the document,” Wittes and Jurecic assert. “Senators don’t swear a special oath to engage in the appropriations process or to consider judicial nominations or to propose health-care legislation. They don’t even swear a special oath to consider a declaration of war or an authorization to use military force. But they do when the Senate sits as the trial forum for impeachment, at which point, it becomes a non-legislative tribunal with a wholly different institutional purpose and face.”

McConnell and Graham, according to Wittes and Jurecic, “have publicly precommitted themselves to violating the oath they are both constitutionally obliged to take.” The Senate majority leader has vowed that he will “coordinating with White House counsel” on Trump’s impeachment, and Graham has declared, “I’m not trying to pretend to be a fair juror here.”

Although highly critical of McConnell and Graham in their article, Wittes and Jurecic cite Sen. Mitt Romney of Utah as a “decent model of what… restraint looks like” on the Republican side. The former Massachusetts governor and 2012 GOP presidential nominee recently said, “There will be a trial in the Senate, (and) we will hear the arguments from both sides. Upon those arguments, and whatever evidence they present, I’ll make a decision.”

But McConnell and Graham, Wittes and Jurecic lament, have demonstrated that they don’t take the U.S. Constitution seriously.

“Whatever the right answer is,” Wittes and Jurecic write, “what Graham and McConnell have done — publicly committing themselves to behaving in a fashion inconsistent with their oath — is certainly the wrong answer.”