The Case Against the Democratic House Impeaching Trump

by Alan Dershowitz

  Now we are experiencing its mirror image: left-wing McCarthyism. But where are the Democratic leaders willing to stand against the intolerance of the hard-left?

  President Trump was justly criticized for not condemning, more forcefully, white supremacists who falsely claimed to be speaking in his name. So, too, must Democratic leaders be criticized for not condemning more forcefully those who distort liberalism into intolerant radicalism. So, too, should academic leaders condemn those who misuse their academic license to propagandize rather than educate, who tell their students what to think rather than teaching them how to think for themselves.

  Too many mainstream Democrats have remained silent—some, even complicit—with the anti-Semitic, anti-gay incitements of Louis Farrakhan, and some of his bigoted followers on university campuses; he has considerable influence on many young people in the inner cities. And too many mainstream Republicans have remained silent—some, even complicit—with alt-right neo-fascists who preach xenophobic hatred against “the other.”

  Pipe bombs, synagogue and church shootings, the targeting of congressmen playing baseball—all are dangerous, extreme symptoms of a deep underlying sickness in our body politic. But the underlying causes include a growing intolerance on both sides of the political spectrum. That such intolerance is being taught to our future leaders who are now university students should frighten us even more than the shootings and pipe bombs.

  The good news is that there is pushback from some students and faculty. The bad news is that it is coming mostly from the very conservatives who have been victimized by hard-left intolerance, and it therefore appears self-serving.

  It is imperative that centrist liberals and conservatives join together in a coordinated, non-partisan effort to regain the spirit of liberty so essential to democratic governance. That is the best response to violent acts of hatred.

  Both Sides Are Failing the Shoe on the Other Foot Test

  If it is true that President Trump wanted to order the Justice Department to prosecute Hillary Clinton and James Comey, then President Trump not only failed the shoe on the other foot test, but he also nearly shot himself in the foot. President Trump has rightfully railed in opposition to weaponizing the criminal justice system against political opponents when he is the target, but now it seems that he was willing to weaponize the Justice Department against his political opponents. Fortunately, wiser heads prevailed and former White House counsel Donald McGahn persuaded the president that he might be abusing his power if he targeted his political enemies.

  History shows that past presidents went after their political enemies: most notably, John Adams ordered the prosecution of members of the opposition party under the notorious Alien and Sedition Acts; Thomas Jefferson demanded the prosecution of Aaron Burr; Abraham Lincoln prosecuted copperheads; John Kennedy (and his brother, who was attorney general) tried to get Roy Cohn. The system worked and most of the political prosecutions failed, but that didn’t make it right. The criminal justice system must not be used to even scores, to score political points, or to further the interests of a political party.

  Both parties have been guilty of trying to weaponize the criminal justice system. Some Democrats want to investigate and possibly prosecute Ivanka Trump for using her personal email for government business. As the Guardian put it: “What goes around comes around.” The chant “lock her up” cuts both ways.

  Former FBI director James Comey was right in concluding that Hillary Clinton’s sloppiness in using a private email server should not be prosecuted. (He was wrong in how he handled the entire matter.) Neither should Ivanka Trump be prosecuted for her far less serious violation of rules that many government officials, from both parties, seem to ignore. There must be one law for both parties and for those in power and out of power. And that law should require that criminal prosecution be a last resort against only clear violations of narrowly defined criminal statutes. This means that President Trump should not be accused of “collusion,” which is simply not a crime. Nor should he be accused of obstruction of justice for exercising his constitutional authority to fire, pardon, or exercise control over the Justice Department (though it may be wrong to do so, wrong is not the same as criminal). It also means that neither Hillary Clinton nor James Comey should be prosecuted for political sins that do not rise to the level of crime.

  The same is true of impeachment. President Bill Clinton should never have been impeached for his Oval Office misconduct or his testimony about his sex life. Nor should President Trump be impeached for noncriminal political sins. Neither should Justice Brett Kavanaugh be impeached for what he is accused of doing as a teenager and his subsequent testimony about it. The threat to impeach is today being thrown around like a baseball after a strikeout. Maxine Waters wants to impeach Vice President Pence just because she doesn’t like him, and the Democrats have a majority in the House. Some Republicans want to impeach Rod Rosenstein (who should be recused but not impeached), while some Democrats want to impeach acting Attorney General Matthew Whittaker because they object to his interim appointment. The promiscuous and partisan threat of impeachment will only politicize and delegitimize that important safeguard, and make it difficult to employ when it is really and properly needed.

  Criminalization of political differences and impeachment are double-edged swords. When they are unsheathed against one party, they can and will be deployed against the other party. The shoes are always on both feet. So the shoe on the foot test is not only a moral imperative; it is a pragmatic caution. The mirror image of the Golden Rule is that what you do unto others, they will surely do unto you—especially in this age of amoral, hyper-partisan, anything-goes, tit-for-tat, weaponization of our legal system.

  So we need mutual disarmament: a commitment from both sides to resolve political differences politically—at the ballot box—and not through the misuse of criminal law and impeachment.

  Conclusion

  Part II

  WILL THE MUELLER INVESTIGATION PROVIDE A BASIS FOR IMPEACHMENT?

  Based on the public record, the Mueller investigation does not seem to be providing a factual or legal basis for impeaching President Trump.

  The recent guilty plea of Michael Cohen for lying represents the dominant trend in Mueller’s approach to prosecution. The vast majority of indictments and guilty pleas obtained against Americans by Mueller have not been for substantive crimes relating to his mandate: namely, to uncover crimes involving illegal contacts with Russia. They have involved indictments and guilty pleas either for lying or for financial crimes by individuals unrelated to the Russia probe. If this remains true after the filing of the Mueller report, it would represent a significant failure on Mueller’s part. It would also fail to provide a basis for impeaching the president.

  Mueller was appointed special counsel not to provoke individuals into committing new crimes, but rather to uncover past crimes specifically involving alleged illegal coordination between the Trump campaign and Russian agents. No one doubted that Russia attempted to influence the 2016 election in favor of Trump and against Hillary Clinton. But Mueller’s mandate was not to prosecute Russians or to point the finger at Vladimir Putin. His mandate was to uncover crimes committed by the Trump campaign with regard to Russia’s attempts to influence the election.

  It was always an uphill battle for Mueller, since collusion itself is not a crime. In other words, even if he could show that individuals in the Trump campaign had colluded with Russian agents to help elect Trump, that would be a serious political sin but not a federal crime. Even if Mueller could prove that members of the Trump team had colluded with Julian Assange to use material that Assange had unlawfully obtained, that, too, would not be a crime. What would be a crime is something that no one claims happened: namely, that members of the Trump campaign told Assange to hack the Democratic National Committee before Assange did so. Merely using the product of an already committed theft of information is not a crime. If you don’t believe me, ask the New York Times,
the Washington Post, the Guardian, and other newspapers that used material illegally obtained by Assange with full knowledge that it was illegally obtained. Not only did they use information from Assange, but also from Chelsea Manning and from the stolen Pentagon Papers. The First Amendment protects publication by the media of stolen information. It also protects use of such information by a political campaign, since political campaigns are also covered by the First Amendment.

  It is important to note that Special Counsel Robert Mueller does not have an unrestrained power to ferret out political sin, to provoke new crimes, or to publish conclusions about non-criminal activities that may be politically embarrassing to the president. His mandate, like that of every other prosecutor, is to uncover past crimes. In Mueller’s case, those crimes must relate to Russia. He also has the authority to prosecute crimes growing out of the Russia probe, but that is collateral to his central mission. In the end, Mueller should be judged by how successful he has been in satisfying his central mission. Judged by that standard and based on what we now know, he seems to be an abysmal failure.

  Perhaps more will come out when his report is published, but it is unlikely that he uncovered anything dramatically new with regard to allegations that the Trump campaign acted illegally in an attempt to help Russia undercut Hillary Clinton’s campaign. Even if the report alleges uncharged criminal behavior, it must be remembered that many of the allegations in the report will likely be based merely on un-cross-examined evidence. Some of that evidence seems to come from admitted liars, who have pleaded guilty for lying. These liars would make poor witnesses in an actual criminal or impeachment and removal trial, but if their evidence serves as a basis for conclusions reached in the Mueller report, then these conclusions may seem more credible than they actually are. We must, of course, wait for the publication of the Mueller report before reaching any final judgments, but if the Mueller report merely catalogs all the guilty pleas and indictments achieved thus far for lying and unrelated financial crimes, and tries to build a case of guilt by association around them, the American public will be justly critical of the process.

  Some members of the Democrat-controlled House may nonetheless try to use the report to begin impeachment proceedings. Maxine Waters called for the impeachment of both President Trump and Vice President Pence even before the report was completed. But, hopefully, wiser heads will prevail and impeachment will not be undertaken.

  There is, of course, the possibility—however slight—that Mueller may come up with smoking gun evidence of impeachable crimes. Unless that occurs, we would all be far better off without a constitutionally questionable impeachment process that would further divide an already fractured nation. The case for impeaching President Trump has not been made, so it should not be pursued.

  Notes

  Part I

  1. Dershowitz, Alan. “The Partisan Shoe Is on the Other Foot.” The Hill, August 12, 2017. http://thehill.com/blogs/pundits-blog/the-administration/346307-opinion-dershowitz-the-partisan-shoe-is-on-the-other

  2. Dershowitz, Alan. “When Politics Is Criminalized.” New York Times, November 28, 2017. https://www.nytimes.com/2017/11/28/opinion/politics-investigations-trump-russia.html

  3. Dershowitz, Alan. “The Criminalization of Politics.” Newsmax, January 24, 2018.

  4. Dershowitz, Alan, interviewed by Tucker Carlson. Tucker Carlson Tonight, FOX News Channel, May 31, 2018.

  5. Dershowitz, Alan. “A Partisan Rush to Prosecute Trump.” The Boston Globe, July 20, 2017. https://www.bostonglobe.com/opinion/2017/07/20/partisan-rush-prosecute-trump/rDTQDUPZBKLx1Fr218WpUP/story.html

  6. Dershowitz, Alan. “Why Donald Trump Can’t Be Charged with Obstruction.” Macleans, December 14, 2017. https://www.macleans.ca/opinion/why-trump-cant-be-charged-with-obstruction/

  7. Dershowitz, Alan. “‘Corrupt Motive’ as the Criterion for Prosecuting a President.” Gatestone Institute, June 20, 2017. https://www.gatestoneinstitute.org/10556/corrupt-motive-as-the-criterion-for-prosecuting

  8. Dershowitz, Alan. “Dershowitz: Ruling Shows I’m Right on Trump and Corruption.” The Hill, July 17, 2017. http://thehill.com/blogs/pundits-blog/the-administration/342301-opinion-alan-dershowitz-ruling-shows-im-right-on-trump

  9. Dershowitz, Alan. “No One Is Above the Law.” The Hill, December 15, 2017. http://thehill.com/opinion/judiciary/363387-no-one-is-above-the-law

  10. Dershowitz, Alan. “Donald Trump Has Congressional Immunity. Yes or No?” Macleans, December 19, 2017. https://www.macleans.ca/opinion/donald-trump-has-congressional-immunity-yes-or-no/

  11. Dershowitz, Alan. “Rod Rosenstein Should Not Be Fired, but Should He Be Recused?” The Hill, February 5, 2018. http://thehill.com/opinion/judiciary/372373-rod-rosenstein-should-not-be-fired-but-should-he-be-recused

  12. Dershowitz, Alan, interviewed with Bob Bauer by Chuck Todd. Meet the Press, NBC, April 1, 2018.

  13. Dershowitz, Alan. “Dershowitz: Why Did Mueller Impanel a Second Grand Jury in DC?” The Hill, August 7, 2017. http://thehill.com/blogs/pundits-blog/the-administration/345602-opinion-dershowitz-why-did-mueller-impanel-a-second

  14. Dershowitz, Alan. “Flynn Plea Reveals Weakness, Not Strength of Mueller Probe.” Newsmax, December 4, 2017. https://www.newsmax.com/alandershowitz/fbi-kislyak-new-york-times/2017/12/04/id/829716/

  15. Dershowitz, Alan. “Alan Dershowitz: Trump Doesn’t Need to Fire Mueller—Here’s Why.” FOX News, December 18, 2017. http://www.foxnews.com/opinion/2017/12/18/alan-dershowitz-trump-doesnt-need-to-fire-mueller-heres-why.html

  16. Dershowitz, Alan. “Desire to ‘Get Trump’ Risks Death of Civil Liberties.” The Hill, April 21, 2018. http://thehill.com/opinion/white-house/384252-desire-to-get-trump-risks-death-of-civil-liberties

  17. Dershowitz, Alan. “Does the President Have the Right to Expect Loyalty from His Attorney General?” Gatestone Institute, September 20, 2017. https://www.gatestoneinstitute.org/11038/does-the-president-have-the-right-to-expect

  18. Dershowitz, Alan. “Alan Dershowitz: The Nunes FISA Memo Deserves More Investigation. Time for a Nonpartisan Commission.” FOX News, February 2, 2018. http://www.foxnews.com/opinion/2018/02/02/alan-dershowitz-nunes-fisa-memo-deserves-more-investigation-time-for-nonpartisan-commission.html

  19. Dershowitz, Alan. “Trump Is Right: The Special Counsel Should Never Have Been Appointed.” The Hill, March 21, 2018. http://thehill.com/opinion/white-house/379372-trump-is-right-the-special-counsel-should-never-have-been-appointed

  20. Dershowitz, Alan. “Alan Dershowitz: The President Has a Special Obligation to Condemn the Racist Right.” Wall Street Journal, August 22, 2017.

  21. Dershowitz, Alan. “Alan Dershowitz: Enough with the Anti-Trump McCarthyism!” Forward, April 18, 2018. https://forward.com/opinion/letters/399063/alan-dershowitz-enough-with-the-anti-trump-mccarthyism/

  22. Dershowitz, Alan. “Dershowitz: Targeting Trump’s Lawyer Should Worry Us All.” The Hill, April 10, 2018. http://thehill.com/opinion/judiciary/382459-dershowitz-targeting-trumps-lawyer-should-worry-us-all

  23. Dershowitz, Alan. “For ACLU, Getting Trump Trumps Civil Liberties.” The Hill, April 12, 2018. http://thehill.com/opinion/white-house/382886-dershowitz-for-aclu-getting-trump-trumps-civil-liberties

  24. Dershowitz, Alan. “‘Firewalls’ and ‘Taint Teams’ Do Not Protect Fourth and Sixth Amendment Rights.” Gatestone Institute, April 11, 2018. https://www.gatestoneinstitute.org/12154/donald-trump-michael-cohen

  25. Dershowitz, Alan. “Alan Dershowitz: We Need a New Law to Protect Lawyer-Client Communications.” The Hill, April 13, 2018. http://thehill.com/opinion/judiciary/383017-we-need-a-new-law-to-protect-lawyer-client-communications

  26. Dershowitz, Alan, interviewed with Mimi Rocah and Dan Abrams by George Stephanopoulos. This Week with George Stephanopoulos, ABC, April 22, 2018.

  27. Dershowitz, Alan. “The Epic Struggle for Michael Cohen’s Soul and Testimony.” The Hill, April 23, 2018. http://thehill.com/opinion/judiciary/384440-the-epic-struggle-for-michael-cohe
ns-soul-and-testimony

  28. Dershowitz, Alan. “Federal Judge Rightly Rebukes Mueller for Questionable Tactics.” The Hill, May 7, 2018. http://thehill.com/opinion/judiciary/386508-federal-judge-rightly-rebukes-mueller-for-questionable-tactics

  29. Dershowitz, Alan. “Trump’s Better Off Litigating than Testifying.” USA Today, May 3, 2018. https://www.usatoday.com/story/opinion/2018/05/03/donald-trump-better-litigating-testifying-alan-dershowitz-editorials-debates/34524873/

  30. Dershowitz, Alan, interviewed by Chuck Todd. Meet The Press, NBC, May 5, 2018.

  31. Dershowitz, Alan, interviewed with Dan Abrams by George Stephanopoulos. This Week with George Stephanopoulos, ABC, May 20, 2018.

  32. Dershowitz, Alan. “Can Trump Pardon Himself? The Answer Is No One Actually Knows.” The Hill, June 4, 2018.

  33. Dershowitz, Alan, interviewed by Chuck Todd. Meet The Press, NBC, June 5, 2018. https://www.msnbc.com/mtp-daily/watch/dershowitz-i-guarantee-no-president-will-pardon-himself-1248883267941

  34. Dershowitz, Alan, interviewed by Harris Falkner. Overtime, FOX News, June 11, 2018.

  Notes

  Part II

  1. Dershowitz, Alan. “Federal Judge Agrees Nonpartisan Commission Beats Special Counsel.” The Hill, June 29, 2018. https://thehill.com/opinion/judiciary/394793-federal-judge-agrees-nonpartisan-commission-beats-special-counsel

  2. Dershowitz, Alan. “Jeff Sessions Validates Chant to Lock up Hillary.” The Hill, July 25, 2018. https://thehill.com/opinion/judiciary/398732-jeff-sessions-validates-chant-to-lock-up-hillary-clinton

  3. Dershowitz, Alan. “Trump’s Bid to Silence Dissent Violates the Spirit of the First Amendment.” The Boston Globe, July 25, 2018. https://www.bostonglobe.com/opinion/2018/07/25/trump-bid-silence-dissent-violates-spirit-first-amendment/czPW9wyCBsSwkxIvvB5dvJ/story.html