Dershowitz appears to have two different positions on impeachment, and they are inconsistent with each other
Dershowitz’s position makes no sense because it is inconsistent. 1/16
Dershowitz contends that (despite Federalist 65), the framers rejected using “abuse of power” language in the impeachment clause because it was too broad, so they used instead the language “Treason, Bribery, or other high Crimes and Misdemeanors.” 2/16
Dershowitz does not claim that abuse of power must be limited to criminal conduct. (He acknowledges that there was no federal criminal code at the time the Constitution was written and adopted — an important point.) 3/16
But all that, unavoidably, leads to the question: What, then, is a high crime and misdemeanor (other than treason and bribery?)
That is, when is an abuse of power, for example, an impeachable offense and when is it not? 4/16
Toobin claims that Trump’s conduct in the Ukraine matter involved an abuse of power that did rise to the level of the kind of high crime and misdemeanor that the Framers had in mind.
Dershowitz disagrees.
This is all the dispute between the two of them amounts to. 5/16
Dershowitz admits that this matter is arguable, but that Trump deserves to have a lawyer who will make the constitutional case for him that his conduct in the Ukraine matter 6/16
did not involve an abuse of presidential power constituting an impeachable offense (as treason and bribery was in the minds of the Framers). 7/16
But if both positions are arguable, then Dershowitz cannot claim that there is a pure Platonic realm of constitutional inquiry that is separable from the specifics of this or any other case. 8/16
And this means that any article of impeachment other than a charge of treason or bribery will require a fact-laden inquiry involving witnesses and documents, 9/16
and, in the end, a determination by the Senate whether the subject of the impeachment deserves to be removed from office for that specific abuse of power. 10/16
That being the case, Dershowitz is in no position to argue that he can make a purely constitutional argument that is divorced from the facts and the evidence involved in a particular case. 11/16
Toobin does a good job of pointing out that there is no “sweet spot” that Dershowitz can appeal to that allows him to evade the question: “Whose side are you on?” 12/16
I suspected that this was the case in an earlier thread this evening. This exchange between Toobin and Dershowitz helps to sharpen the argument. 13/16
It should also be pointed out that Dershowitz cannot reach the conclusion that there was no impeachable abuse of power BEFORE hearing the evidence from witnesses and documents if he really does think that the matter is arguable. 14/16
To be consistent, Dershowitz would have to argue that witnesses and documents are irrelevant to the constitutional question — which is perhaps why he says he has a “special role” in Trump’s defense, since the other lawyers on the team are deliberating over witnesses. 15/16
But apparently Dershowitz does not have a consistent position. 16/16
