The Case Against Impeaching Trump by Alan Dershowitz

[johnkarls]

.
As an Ad Hoc Meeting Proposal during my Sabbatical, I propose that we read “The Case Against Impeaching Trump” by Harvard Law Prof. Emeritus Alan Dershowitz (Hot Books 7/9/2018 -- 160 pages -- $19.79 + shipping or $13.19 Kindle from Amazon.com.]

[Proposal to be sent with our next newsletter on Sat 7/14/2018 -- meeting date TBD by availability of RSVP’s.]

******
Background

“Maybe the question isn’t what happened to Alan Dershowitz. Maybe it’s what happened to everyone else.”―Politico

Alan Dershowitz has been called “one of the most prominent and consistent defenders of civil liberties in America” by Politico and “the nation’s most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights” by Newsweek. Yet he has come under partisan fire for applying those same principles to Donald Trump during the course of his many appearances in national media outlets as an expert resource on civil and constitutional law.

The Case Against Impeaching Trump seeks to reorient the debate over impeachment to the same standard that Dershowitz has continued to uphold for decades: the law of the United States of America, as established by the Constitution. In the author’s own words:

“In the fervor to impeach President Trump, his political enemies have ignored the text of the Constitution. As a civil libertarian who voted against Trump, I remind those who would impeach him not to run roughshod over a document that has protected us all for two and a quarter centuries. In this case against impeachment, I make arguments similar to those I made against the impeachment of President Bill Clinton (and that I would be making had Hillary Clinton been elected and Republicans were seeking to impeach her). Impeachment and removal of a president are not entirely political decisions by Congress. Every member takes an oath to uphold the Constitution of the United States, and the Constitution sets out specific substantive criteria that MUST be met.

I am thrilled to contribute to this important debate and especially that my book will be so quickly available to readers so they can make up their own minds.”

*****
Short Bio

Alan Dershowitz is one of the most famous and celebrated lawyers in America. He was the youngest full professor in Harvard Law School history, where he is now the Felix Frankfurter Professor of Law, Emeritus. The author of numerous bestselling books, from Chutzpah to The Best Defense to Reversal of Fortune (which was made into an Academy Award-winning film) and to The Case for Israel, Dershowitz has advised and defended many of the most famous legal cases of the past fifty years, including O.J. Simpson, Anatoly Sharansky, Michael Milken, Claus von Bulow, and Mike Tyson.

*****
Editorial Reviews (some about his past work)

"There are great legal minds; there are those who can also communicate well on television; then there is Dershowitz. The professor is uniquely capable of arguing a position, while putting a premium on legal and ethical legitimacy, not its popularity. Bravo, Dershowitz!"
―Chris Cuomo, anchor and reporter, CNN

"Anyone interested in the true merits of criminal law and very fine writing must read Alan Dershowitz's book."
―Truman Capote

“A quintessential example of truth overcoming lies."
―Benjamin Netanyahu, Prime Minister of Israel

“Alan Dershowitz speaks with great passion and personal courage."
―Elie Wiesel

“Love him or hate him, Dershowitz has lived a life that matters, hugely and enduringly. He is a man in full at a time when most of us aspire to be little more than a presence on Twitter."
―New York Times Book Review

“Courage and principle are rare today. Professor Dershowitz has them both.”
―Senator Ted Cruz

“[Dershowitz exhibits] not just a commitment to equity and integrity, but a deep faith in the power of the law to make our country more honest and fair.”
―Congressman Joe Kennedy III

"Alan Dershowitz doesn’t twist the constitution to fit an agenda. He tells you what it REALLY means. That’s why he has always been my go-to guy on the law and the Constitution."
―Greta Van Susteren, former anchor at CNN, Fox News Channel, and MSNBC

"This book will reinforce Alan Dershowitz’s well-earned reputation as a brilliant legal analyst who, although often swimming against the established current, is usually right…His analysis seems flawless to me."
―Harvey A. Silverglate, criminal and civil liberties lawyer, author of Three Felonies a Day: How the Feds Target the Innocent

"If Dershowitz isn’t getting in your face about something, it s as if he’s not doing his job. "
―The Boston Globe

**********************************************************************************
The New York Times Book Review -- 7/8/2018


Yet Another Book Takes On Impeachment: This Time, The Case Against

Book Review By --

Alexandra Alter – She writes about publishing and the literary world for The NY Times. Before joining The NY Times in 2014, she covered books and culture for The Wall Street Journal, where she was a reporter for seven years. Prior to that, she reported on religion for the Miami Herald. She has a BA from Colombia and an MA in Religion and Journalism from Colombia.

and Sydney Ember – She has been a political reporter for The NY Times since January 2014. She received her BA from Brown U. in Comparative Literature in 2012 while serving as the Editor-in-Chief of The Brown Daily Herald. During the 17 months between graduation and joining the NY Times, she was a Financial Markets Advisory Analyst for Black Rock, a global investment management firm in NYC since 1988.


Alan Dershowitz has had a prolific publishing career: Over the past 36 years, the legal scholar and frequent television commentator has written 37 books, at the breakneck pace of roughly a book a year.

But even by his standards, his most recent book, “The Case Against Impeaching Trump,” was a lightning-fast turnaround: He delivered it less than a month after striking a deal with a publisher, and the book went to press two weeks later, a shorter gestation period than most magazine articles.

The book, out this Monday, is likely to be the most controversial of his career, in addition to the fastest.

Mr. Dershowitz, a lifelong Democrat, has broken ranks with many liberals in defending President Trump against calls for impeachment. In his latest published work — less of a book and more a hastily assembled compilation of his public musings on the subject — he elaborates on those arguments. The 160-page treatise includes a roughly 30-page opening essay, followed by opinion pieces published in The New York Times, The Wall Street Journal, Newsmax, Fox, The Hill and other outlets, and a handful of transcripts of his television interviews, including appearances on “Meet the Press,” “Tucker Carlson Tonight” and “This Week With George Stephanopoulos.”

In a telephone interview, Mr. Dershowitz said he wanted to offer a counterpoint to the raft of books arguing for the validity of impeachment, including “To End a Presidency,” by Laurence Tribe and Joshua Matz, Cass Sunstein’s “Impeachment: A Citizen’s Guide” and Allan Lichtman’s “The Case for Impeachment.”

“Until I wrote the book, my comments had been in the form of three-minute television interviews and 800-word op-eds, and it’s difficult to make serious intellectual points in those formats,” he said. “I wanted to make a coherent case against impeachment, and I wanted to become part of the debate.”

He has certainly become part of the debate. Ever since he came out swinging against scholars, politicians and pundits who claim Mr. Trump has committed impeachable offenses, Mr. Dershowitz has been scorned by fellow academics and members of the liberal establishment, and by some in the elite social circles he frequents. In April, The New Republic, a left-leaning magazine, published an article titled “What Happened to Alan Dershowitz?” And he claims to have been shunned on Martha’s Vineyard, a liberal enclave where he spends summers.

But Mr. Dershowitz seems to be reveling in his pariah status, pointing to it as proof that he is committed to defending constitutional principles that transcend partisan politics. He joked in an interview that he is going to ask his publisher to release a “Martha’s Vineyard edition” of the book sheathed in a brown paper bag, so that bashful but curious residents can “hide it and read it in the privacy of their homes.”

Mr. Dershowitz said that the project came about after a former law student of his, Marshall Sonenshine, suggested he publish a book outlining his arguments against impeaching Mr. Trump. Mr. Sonenshine introduced him to his friend Tony Lyons, the publisher of Skyhorse, which has an imprint, Hot Books, that produces quick books that are often about current events. They met on May 2. Mr. Dershowitz delivered the manuscript on June 1, and printed copies were ready on June 20. The publisher has shipped 50,000 copies to retailers.

In an interview, Mr. Lyons said he sought out Mr. Dershowitz because he thought Mr. Dershowitz could write a brief, provocative book on a subject that has divided the country along partisan and ideological lines, but in a dispassionate, scholarly way. “He wrote it faster than I’ve ever seen anyone write a book,” Mr. Lyons said.

Apart from the introductory essay, the book is largely cobbled together from what Mr. Dershowitz considers his greatest hits on the subject — combative dispatches with headlines like “Enough with the Anti-Trump McCarthyism!” and “I Haven’t Changed. They Have.” In one chapter, he quotes emails from critics who call him a “Republican authoritarian bigot” and who accuse him of being paid off by the Trump administration.

The unorthodox format was born out of a sense of urgency, Mr. Dershowitz said.

“That’s the only thing I could do in the parameters of time that I wanted,” he said.

One of the country’s best-known criminal defense lawyers and constitutional scholars, Mr. Dershowitz has long been respected, even revered, in political and academic circles. From his days clerking for Justice Arthur J. Goldberg of the Supreme Court in the 1960s, when he helped advance a briefly successful legal argument that the death penalty was unconstitutional, he has staunchly defended civil liberties, his supporters say. He joined the faculty at Harvard Law School in 1964 and became one of its youngest tenured professors when he was 28. (He is now a professor emeritus.)

As a criminal defense lawyer, Mr. Dershowitz has taken part in some riveting and polarizing criminal trials, and his client list reads like a who’s who of America’s most notorious defendants, including O.J. Simpson, Michael Milken and Mike Tyson.

Known for his bold, sometimes controversial views, Mr. Dershowitz has also never been afraid to speak his mind. He makes frequent television appearances to discuss, or debate, the day’s top legal issues, during which he is often opinionated and brash.

“He’s not exactly a bashful, reticent man,” said Lanny Davis, a former special counsel to President Bill Clinton.

Mr. Dershowitz’s style and points of view have at times drawn criticism. He has argued that torture can be justified. He is a strong supporter of the state of Israel and frequently debates Middle East policy. He has praised Mr. Trump’s decision to recognize Jerusalem as its capital.

But if his positions are not always popular, his latest turn as an apparent defender of Mr. Trump has perhaps most unsettled the liberals he has long identified with.

Mr. Dershowitz says he is not advocating for Mr. Trump, but defending civil liberties, as he has always done. Mr. Dershowitz said he voted for Hillary Clinton and fund-raised for her, and that he would have similarly defended her against calls for impeachment had she won the election.

“I’m not a part of his team at all,” said Mr. Dershowitz, who noted he has met Mr. Trump three times and spoken to him on the phone twice, once when Mr. Trump called to criticize something Mr. Dershowitz said on television, and recently, when the president called to seek his advice on the Supreme Court nomination.

He makes note of his liberal leanings on the very first page of the book. After writing that unless a president has been found guilty by two-thirds of the Senate of treason, bribery or other high crimes and misdemeanors, “it would be unconstitutional to remove him,” Mr. Dershowitz added a footnote that took a personal turn: “I was hoping to use the female pronoun after the 2016 election, but sadly that is not how it turned out.”

That disclosure is unlikely to sway liberals who believe Mr. Dershowitz has betrayed his Democratic roots by siding with Mr. Trump and criticizing the special counsel investigation into whether Mr. Trump’s campaign coordinated with Russia. But his supporters say his arguments against impeachment are rooted in his legal philosophy, not politics.

“He’s not exactly a bashful, reticent man,” said Lanny Davis, a former special counsel to President Bill Clinton.

Mr. Dershowitz’s style and points of view have at times drawn criticism. He has argued that torture can be justified. He is a strong supporter of the state of Israel and frequently debates Middle East policy. He has praised Mr. Trump’s decision to recognize Jerusalem as its capital.

But if his positions are not always popular, his latest turn as an apparent defender of Mr. Trump has perhaps most unsettled the liberals he has long identified with.

Mr. Dershowitz says he is not advocating for Mr. Trump, but defending civil liberties, as he has always done. Mr. Dershowitz said he voted for Hillary Clinton and fund-raised for her, and that he would have similarly defended her against calls for impeachment had she won the election.

“I’m not a part of his team at all,” said Mr. Dershowitz, who noted he has met Mr. Trump three times and spoken to him on the phone twice, once when Mr. Trump called to criticize something Mr. Dershowitz said on television, and recently, when the president called to seek his advice on the Supreme Court nomination.

He makes note of his liberal leanings on the very first page of the book. After writing that unless a president has been found guilty by two-thirds of the Senate of treason, bribery or other high crimes and misdemeanors, “it would be unconstitutional to remove him,” Mr. Dershowitz added a footnote that took a personal turn: “I was hoping to use the female pronoun after the 2016 election, but sadly that is not how it turned out.”

That disclosure is unlikely to sway liberals who believe Mr. Dershowitz has betrayed his Democratic roots by siding with Mr. Trump and criticizing the special counsel investigation into whether Mr. Trump’s campaign coordinated with Russia. But his supporters say his arguments against impeachment are rooted in his legal philosophy, not politics.

“Alan is a very principled person,” said Benjamin Brafman, the prominent criminal defense lawyer who knows Mr. Dershowitz both personally and professionally, and who is currently representing the film mogul Harvey Weinstein against sexual assault charges. “He stands up for things he believes in and he takes the criticism and the accolades.”

Mr. Dershowitz said that while he has faced blowback in social and academic circles, the publishing industry still seems happy to embrace him.

“There are a few publishers who are ideological, but I think most publishers are interested in being relevant and getting out there and being part of the public conversation,” he said. His next book, a memoir about his defense of Israel, will be coming from All Points Books, a new imprint that purports to publish books from across the political spectrum. It will clock in at about 400 pages, he said.

[johnkarls]

.
So no big surprise, the first wave of European e-mail reacting to the proposal of Prof. Dershowitz’ “The Case Against Impeaching Trump” has arrived within 6 hours of its posting.

All of them asked the reason(s) for this particular ad hoc proposal during my sabbatical to write a book on “The National Audubon Society Executes Great Salt Lake Death Warrant.”

First, writing a book such as “Inner-City Holocaust and America’s ‘Apartheid’ Justice System (In Honor of Jonathan Kozol and In Memory of John Howard Griffin)” four years ago does NOT mean there is no time to read about, or discuss, other matters -- just less time that has to be rationed carefully.

Secondly, every topic involves issues that the “experts” never address.

And there are at least two that I have NOT heard “experts” address.

*****
“High Crimes and Misdemeanors”

Section 4 of Article II of the U.S. Constitution provides --

“The President, the Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”

Bill Clinton, only the second President to be impeached and the first since Andrew Johnson in 1868, was impeached for perjury and for obstruction of justice.

[Following impeachment by the House of Representatives, neither Bill Clinton nor Andrew Johnson was convicted by the Senate.]

So the first issue that is never addressed???

During the Bill Clinton impeachment, the Mainstream Media was howling that perjury and obstruction of justice are no big deal.

In other words, that neither perjury nor obstruction of justice is a “high crime or misdemeanor.”

So the “nit” to “pick”???

Does the constitution’s adjective “high” modify “misdemeanor” as well as “crime”???

Or does the constitution mean “either a high crime or else a misdemeanor of any kind including a traffic violation”???

Without taking the time at this point to research the issue, I would be willing to bet that there is no answer from the history of the constitution.

Or else, despite the howling of the Mainstream Media during the Bill Clinton impeachment, insignificant misdemeanors such as traffic tickets can technically be the basis of impeachment as a practical matter.

Because, inter alia, if the House of Representatives impeached, and the Senate convicted, a President for an “ordinary garden-variety” misdemeanor, it is hard to believe that the courts would intervene for lengthy proceedings on whether an “ordinary garden-variety” misdemeanor can be a ground for impeachment after both the House and Senate have determined that it is.

Moreover, the issue is NOT as far-fetched as it may seem.

Especially since the likes of Representative Maxine Waters appear NOT to believe that even an “ordinary garden-variety” misdemeanor is required for impeachment.

But more seriously, the constitutional framework seems to contemplate “ordinary garden-variety” misdemeanors.

Because NO crimes OR misdemeanors allegedly committed before a President assumes office can be prosecuted while the President is in office, because s/he has Presidential responsibilities that cannot and should not be impaired by prosecutions for pre-office crimes.

Probably because pre-office crimes are either known by the electorate or, with proper investigation, should have been known by the electorate.

And because the ability to prosecute for pre-office crimes would invite zillions of frivolous prosecutions by political opponents, rendering any President impotent no matter how innocent.

[Once s/he leaves, or is removed, from the Office of President, s/he is, of course, once more subject to regular criminal prosecution for pre-office crimes.]

Similarly, the ability to prosecute for “high crimes and misdemeanors” allegedly committed while in office would also invite zillions of frivolous prosecutions by political opponents, rendering any President impotent no matter how innocent.

Which is why the Constitution appears to provide that the ONLY REMEDY for a President’s “high crimes and misdemeanors” allegedly committed while in office is impeachment by the House of Representatives and conviction by the Senate.

NOT REMEDIED BY ALL OF THESE NATIONWIDE RULINGS by every federal trial judge under the sun that the nation is currently witnessing.

Or by frivolous prosecutions by every District Attorney in the entire country.

[And similarly to pre-office crimes, once s/he leaves, or is removed, from the Office of President, s/he is, of course, once more subject to regular criminal prosecution for crimes committed while in office.]

*****
Presidential Succession by Chuck Schumer??? Or Nancy Pelosi???

Various provisions of the U.S. Constitution, and laws authorized by the Constitution, currently provide that the order of Presidential succession is --

(1) The U.S. Vice President.

(2) The Speaker of the House of Representatives.

(3) The President Pro Tempore of the Senate (who is a Senator elected to preside over the Senate in the absence of the “President of the Senate” who, per the Constitution, is the Vice President of the U.S.).

(4) The various cabinet ministers starting with the Secretary of State.

So let’s assume for the moment that despite, inter alia, an improving economy and Trump always “under polling” his actual strength (and in this case, the strength of his “coat tails”), there is a “blue wave” rather than a “red wave” in the 2018 mid-term elections.

As a result of which Nancy Pelosi becomes once more Speaker of the House of Representatives.

And Chuck Schumer becomes the President Pro Tempore of the Senate (in order to place him third in line behind Nancy Pelosi).

[Ordinarily the responsibilities of Senate Majority Leader preclude serving simultaneously as President Pro Tempore, which is why the current President Pro Tem, Republican Orrin Hatch, was preceded by President Pro Tem, Democrat Patrick Leahy, and a long line of senior senators who were NOT Majority Leader. But if you ever visit the Senate, the odds are virtually zero that you will see the Vice President who only appears "once in a blue moon" to break ties, and the odds are overwhelming that the President Pro Tem has handed the gavel to whomever is still loitering in the Senate chamber!!! So following our hypothetical “blue wave” this November, the Senate Democrats could anoint any of their members with the title of President Pro Tempere, however much the responsibilities might be delegated, in order to play games with Presidential succession.]

So here are a few questions to consider --

(1) Is it that unlikely that a “blue wave” in November would restore Nancy Pelosi to the House Speakership???

(2) Is it that unlikely that a “blue wave” in November would result, with the help of howling from the Mainstream Media, in the impeachment and conviction of President Trump no matter how insignificant the “ordinary garden-variety” misdemeanor that the Constitution will require them to “trump up”???

(3) In other words, although impeachment by the House of Representatives requires only a majority vote, conviction by the Senate requires a 2/3 vote -- but is it really that unlikely that 51 Senate Democrats would be joined by at least 16 “establishment”* Republicans for conviction???

(4) Since impeachment and conviction would result in a vacancy in the Office of Vice President, could the now-majorities of the House and Senate refuse to vote for a replacement Vice President in order to keep Nancy Pelosi and Chuck Schumer next in line for the Presidency??? [Sec. 2 of the 25th Amendment to the Constitution provides “Whenever there is a vacancy in the office of Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress” -- but there is no provision for anyone to prosecute either House of Congress if it refuses to vote on the nomination of a new Vice President.]

(5) Would you like to be a Secret Service Officer protecting Mike Pence after he becomes President with Nancy Pelosi and Chuck Schumer standing next in line and with all of the “harassment” already being advocated by the likes of Maxine Waters???

-----------------------------------
Question 3 footnote regarding “establishment” Republicans

The twin foci of our 2/14/2008 meeting 10.5 years ago were long-time syndicated Washington Post Columnist Dana Milbank’s “Homo Politicus” and former long-time liberal Business Week columnist Robert Kuttner’s “The Squandering of America.”

The thesis of both Milbank and Kuttner is that NOTHING is done (or not done) in the CESSPOOL known as Washington DC except as the result of “campaign contributions” which are either BRIBERY of the pols, or EXTORTION by the pols!!!

Which means that it HAS BEEN a forlorn hope for our national government to be influenced in the slightest by American citizens (upon whom for the last 25 years has been waged what we have called a “War on American Workers” by what we have, since reading Milbank/Kuttner 10.5 years ago, called The Establishment which we have always defined as the billionaires who “own” both political parties, who “own” many, if not most, of the members of the Mainstream Media, and who “own” many members of academia).

In other words, American workers would have to wait 25 years for a Messiah!!!

A Bernie Sanders who could mount an easily-sabotaged campaign financed by zillions of small campaign contributions, virtually all of which were less than $100.

Or a Donald Trump who could finance his own campaign while also standing up for American workers.

And we have always agreed since Election Day on 11/8/2016, that we have been witnessing the Herculean efforts by The Establishment to castrate, if not remove, President Trump while simultaneously witnessing what we have always called “The Left-Hand Puppet of The Establishment’s ‘Kabuki Theater’” attempting to continue defrauding American workers with “identity politics” rather than “lifting a finger” on their behalf.

So since “The Establishment” (as defined in the third paragraph of this footnote) “owns” virtually all of the pols in both political parties by virtue of “campaign contributions,” how difficult would it be for “The Establishment” to “pull the strings” of at least 16 of the Republican Senators that The Establishment “owns” in order to achieve a 2/3 conviction vote in the Senate???