politics

Should President Trump Be Impeached?

Harvard Law School
Dean, UC Berkeley School of Law
Genesis
Response
Penultimate
Finale

Alan Dershowitz

Harvard Law School

November 25th, 2019
If you don’t like the current constitutional criteria for impeaching a president, amend the Constitution but don’t defy it.
When the Framers agreed upon the grounds authorizing impeachment, they rejected and omitted several criteria that might have made it easier to remove a president who was doing a bad job. They explicitly rejected “maladministration” on the ground that it would give too much discretion to Congress and would have the president serve at the will of Congress, much as prime ministers serve at the will of parliaments. The Framers omitted any reference to a madman or physically incompetent president, though Britain had experienced such kings. The 25th Amendment was added to fill that gap. They also omitted any criteria for removing a president who simply refused to show up for work. I’m often asked what would be done in the unlikely hypothetical event that a newly elected president announced at his inauguration that he planned to spend the next 4 years scuba diving in Hawaii. Could such a president be impeached? My answer — which may sound difficult to defend — is NO. The text of the Constitution provides no basis for impeaching and removing such a no-show president. The remedy is not to ignore the words of the Constitution. It is to amend the Constitution, which is normally a difficult and time-consuming undertaking. But in my hypothetical case, the Constitution would be amended immediately to close such a gaping hole in its criteria for impeachment. That’s the only proper way in a nation governed by the rule of law in which the Constitution in the supreme law. Neither the president nor Congress is above the law, and there is no current law prohibiting the president from spending his four years scuba diving (as long as he takes occasional time outs to inform Congress as to the state of the nation, but he can do that from the beach). But there is a law prohibiting Congress from impeaching him on that ground. That law is the Constitution and Congress can’t change its language without going through the amending process, any more than it could require states to abolish slavery or allow 18-year-olds to vote without amending the Constitution. Perhaps the criteria for impeaching and removing a president should be amended to include abusing his foreign policy powers for partisan or personal advantage, but the language can’t be construed to cover such conduct or other conduct that is the subject of the current investigation. To ignore or unreasonably stretch the current criteria would do damage to the rule of law, as the two prior impeachments — of presidents Johnson and Clinton — did.
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