As U.S. President Donald Trump’s lawyers begin three days of opening statements in his impeachment trial on Saturday, they’ll push a widely disputed theory: that abuse of power is not an impeachable offense.
The first of two articles of impeachment against Trump alleges that Trump abused the powers of his office by asking Ukraine to undertake investigations of his political rivals that would benefit his 2020 re-election. While Democrats say the president’s conduct meets the constitutional threshold for impeachment, Trump’s lawyers insist Trump didn’t commit a crime and can’t be impeached.
However, some of the president’s own allies, including former Harvard law professor Alan Dershowitz and Attorney General William Barr, have espoused the opposite view in the past, arguing that presidents can be removed from office for abuse of power even if they haven’t committed a crime.
The issue was underscored by House impeachment manager Jerrold Nadler on Thursday as he argued for Trump’s removal from office for abuse of power. “Everyone except the president and his lawyers believe that presidents can be impeached for abuse of power,” Nadler said.
In August 1998, as a federal grand jury was investigating then-Democratic President Bill Clinton, Dershowitz went on CNN to argue that impeachment did not require criminal conduct.
“It certainly doesn’t have to be a crime,” Dershowitz said then. “If you have somebody who completely corrupts the office of the president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”
These days, Dershowitz, who has joined the Trump defense team as a “constitutional representative,” argues that impeachment requires “criminal-like conduct.”
“Congress must find one of the specified crimes and misdemeanors,” Dershowitz said in an interview with VOA. “And if they don’t, then the president is not subject to impeachment regardless of what they think about his performance in office.”
What Constitution says
Under the U.S. Constitution, a president may be removed from office if convicted in an impeachment trial of “Treason, Bribery, or other high Crimes and Misdemeanors.”
Rooted in English law, the language of “high crimes and misdemeanors” was left undefined in the Constitution, generating a controversy that has continued to this day about what constitutes an impeachable offense.
Legal experts say a president can’t be impeached for mere maladministration. Yet most agree that abuse of power is an impeachable offense. In recent decades, judges have been removed on noncriminal grounds.
While a proponent of sweeping presidential powers, Barr nonetheless subscribes to the legal consensus on the topic.
In 2018, Barr, then a lawyer in private practice, argued that while a sitting president can’t be indicted, there is a constitutional “remedy” for presidential abuse of power: impeachment.
“The fact that the president is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the president is not the judge in his own cause,” Barr wrote in a memo to then-Deputy Attorney General Rod Rosenstein.
Others who have supported the idea include Trump ally Republican Senator Lindsey Graham and George Washington University law professor Jonathan Turley.
'Doesn't even have to be a crime'
In 1999, while serving as a House manager in the Clinton impeachment trial, Graham rejected the idea that impeachable offenses must involve criminal violations.
“What’s a high crime?” Graham asked. “How about if an important person hurts somebody of low means? Doesn’t even have to be a crime. It’s just when you’re using your office and you’re acting in a way that hurts people, you committed a high crime.”
In December, Turley testified on the constitutionality of impeachment before the House Judiciary Committee as the sole Republican-invited legal scholar.
Although all three prior presidential impeachment inquiries involved explicit criminal allegations, Turley said that “it is possible to establish a case for impeachment based on noncriminal allegation of abuse of power.”
Trump’s lawyers pooh-pooh this scholarly consensus as a “novel theory” that would weaken the presidency by encouraging politically motivated impeachment.
“By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the framers of the Constitution restricted impeachment to specific offenses against “already known and established law,” Trump lawyers wrote in a 110-page memo to the Senate.
The president’s legal team will present “multiple schools of thought on what is and is not an impeachable offense,” Jay Sekulow, a longtime Trump attorney, said Thursday. “We’re not afraid to put out both of those schools of thought because our position is you still have to meet basic fundamental constitutional obligations, and they haven’t.”