What's behind Dershowitz's brazen claims

Lawyer Alan Dershowitz, enlisted to argue against the Constitutional basis for Trump's impeachment, says it's 'important for Senate to hear from someone who's not a partisan'

Posted: Jan 18, 2020 7:50 PM
Updated: Jan 18, 2020 7:50 PM

Hours after President Donald Trump announced he was adding Alan Dershowitz to his impeachment legal defense team on Friday, the constitutional lawyer appeared on MSNBC's "The Beat with Ari Melber" and said, "Abuse of power, even if proved, is not an impeachable offense."

Dershowitz was repeating a line of argument that we've heard before from Trump's staunchest defenders. Presidential power is so total and so complete, the argument goes, that there is almost nothing that Trump could do to warrant impeachment.

Dershowitz is offering the legalistic version of Trump's famous 2016 declaration: "I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters." Dershowitz, who justifies executive power through a dangerous misreading of the Constitution, is likely to use the new incarnation of this argument again during the impeachment trial.

His comment brings back memories of Richard Nixon's famous interviews with television host David Frost in 1977, three years after Nixon resigned. When discussing Watergate, the disgraced president didn't back down from his expansive view of presidential power. "Well, when the president does it, that means that it is not illegal."

Based on the Constitution, and what we know of the founders, Dershowitz's thoroughly Nixonian claims are wrong.

The founders created a system of democracy explicitly meant to check any single branch of government from accumulating excessive power and authority. This was spelled out in the Constitution, which imposed restraints on the executive branch by giving Congress the power of the purse, for example, as well as the ability to declare war.

The founders, intent on ensuring that the president would never be able to become a king, also created the mechanism of impeachment as a last resort that Congress could use against an executive who was out of control and dangerous to the republic.

To be sure, Dershowitz's outlook is rooted in a growing body of work that took hold in conservative circles since the 1980s about expansive executive power. A number of prominent right-wing legal practitioners and scholars, including Attorney General William Barr, subscribed to the notion that the powers of the president are bold, almost total. They rejected the direction of Watergate-era congressional reforms, such as the War Powers Act, that sought to constrain the president.

During President George W. Bush's administration, these ideas were used to justify aggressive steps by the administration after September 11, from the use of "enhanced interrogation methods" (i.e. torture) to the expansive use of presidential signing statements that circumvented congressional law by stipulating objections or the president's own interpretations for specific provisions of the laws.

Conservatives have also supported President Trump by employing the "unitary executive" theory, arguing that the President has broad powers over the executive branch. This was the argument Barr used before becoming attorney general to defend Trump's firing of former FBI Director James Comey.

The current administration has taken these arguments even further to justify the brazen actions of Trump with regards to Ukraine and the obstruction of Congress. Defenders such as Dershowitz have gone so far in their arguments that they have tried to essentially nullify any constitutional provisions that we have to make certain that presidents are held accountable.

Instead of a system of checks and balances, the logic of their claims imply the founders wanted a chief executive without restraint. This country was founded on the revolt against a monarchy -- now Trump's defenders are trying to argue for more of the same.

While Dershowitz's arguments don't hold water with a majority of historians and constitutional experts, they are nonetheless central to the administration's defense of what this President does.

Given that the ongoing stream of damaging information keeps poking holes in the "he didn't do it" defense, the President's supporters are turning to the "he did it, so what?" justification.

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