A Friday decision by the U.S. Supreme Court undercuts the second article of impeachment the House Democrats are planning to vote on this week in their efforts to remove President Donald Trump from office, Harvard Law School professor emeritus Alan Dershowitz argued.
The second article charges that Trump obstructed Congress by not complying with all the House Democrat leaders’ witness and document demands.
The president has claimed executive privilege regarding current and former White House staff members Democrats have sought to compel to appear including White House Chief of Staff Mick Mulvaney and former National Security Advisor John Bolton.
Last week, the Supreme Court agreed to review three lower court decisions relating to congressional and grand jury subpoenas demanding financial records from Trump.
Dershowitz — who is reportedly being considered to be part of Trump’s legal team in a Senate impeachment trial — argued in the Monday op-ed that while the cases are “not identical” they are “close enough.”
“Even if the high court were eventually to rule against the claims by President Trump, the fact that the justices decided to hear them, in effect, supports his constitutional contention that he had the right to challenge congressional subpoenas in court, or to demand that those issuing the subpoenas seek to enforce them through court,” Dershowitz wrote.
“It undercuts the contention by House Democrats that President Trump committed an impeachable offense by insisting on a court order before sending possibly privileged material to Congress.”
Dershowitz advised House Democrats to “seriously consider dropping this second article in light of the recent Supreme Court action.”
Appearing recently on C-Span’s “Washington Journal,” the former law professor also shot down Democrats’ first article of impeachment: abuse of power.
“Presidents constantly take actions that are designed to help their electoral prospects,” he said.
“If you go back to abuse of power and allow that to be a criteria for impeachment, Abraham Lincoln suspended the writ of habeas corpus. Franklin Roosevelt confined 110,000 Japanese Americans in detention centers. John Kennedy authorized the tapping of Martin Luther King’s telephones. Every controversial president has been accused of abuse of power.”
Alan Dershowitz claims the President can’t be impeached for asking a foreign government to interfere in an election: “President’s constantly take actions that are designed to help their electoral prospects” pic.twitter.com/GgzYKcXM6W
— Jason Campbell (@JasonSCampbell) December 16, 2019
Dershowitz said he does not even have to address whether it was right or wrong for Trump to ask Ukrainian President Volodymyr Zelensky to look into alleged shady dealings by former Vice President Joe Biden and his son Hunter in Ukraine because the issue is whether Trump committed an impeachable offense.
“Abuse of power is simply not a criterion,” Dershowitz said. “If the framers wanted abuse of power as a criteria for removing the president, it would have been simple, just put it in the Constitution: treason, bribery, high crimes and misdemeanors or abuse of power.”
In an appearance on CNN Saturday, the renowned defense attorney said, with a smile, he could not comment whether he may be representing Trump in a Senate impeachment trial.
CNN chief legal analyst Jeffrey Toobin responded to the prospect of his former law professor in that role.
“Not exactly what I expected in your criminal law class that that’s how you would culminate your career,” Toobin said.
It just may be the right move for Trump to have a high profile Democrat like Dershowitz arguing why the House impeachment case fails to meet the standards laid out by the Founders and should be dismissed out of hand.
No doubt it would irk Democrat lawmakers, much like the testimony of George Washington Law School professor Jonathan Turley did before the House Judiciary Committee earlier this month.
Democrats do not have the law or the facts on their side, which leaves them having to make up new standards as they stand on their desks and scream, “Trump did something wrong!”
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