Government

Alan Dershowitz Willing To Defend Donald Trump Again, Shocking Absolutely No One

Because shamelessness isn't a job, it's a lifestyle.

By  
on

(Photo by John Lamparski/Getty Images for Hulu)

As the House moves toward impeachment, there’s another opportunity for attorneys to debase themselves for the sake of 15 minutes of constitutional infamy and, as predictably as the majestic salmon returns upstream to its natal river, Alan Dershowitz has jumped to the head of that line. The Harvard Law legend turned headache told the Boston Herald that he’s pumped about the opportunity to engage in another charade of a trial to fig leaf a nakedly political Senate vote:

Dershowitz, a Harvard Law School professor emeritus and celebrity lawyer who was part of Trump’s legal team during his first U.S. Senate impeachment trial, told the Herald he’s up for defending the president again.

“I would do it,” Dershowitz said. “I think his speech was protected by the First Amendment.”

And the feeling is apparently mutual! Donald Trump is reportedly eyeing Dershowitz and Rudy Giuliani to defend him before the Senate in a buddy comedy about two once-lauded attorneys teaming up for one last score. What misadventures will these two get up to!?

That is, of course, if there is an impeachment trial, which Dershowitz is adamant cannot happen:

Dershowitz added that “the Constitution specifically says the president shall be removed from office upon impeachment.” He said that because it does not say “the former president,” the Senate’s “jurisdiction is limited to a sitting president,” barring the possibility of a trial.

This is poppycock based on a deliberately superficial reading of the text. As Professor Michael Gerhardt explains in Just Security:

Sponsored

The Constitution provides that the President “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,” but it says nothing about the timing of when the impeachment and trial may take place. That omission makes sense, since presidents – and any other impeachable officials – could commit impeachable offenses at any time while they are in office, including in their last months or days in their positions.  It certainly makes no sense for presidents who commit misconduct late in their terms, or perhaps not discovered until late in their terms, to be immune from the one process the Constitution allows for barring them from serving in any other federal office or from receiving any federal pensions.

Dershowitz cabins his willingness to go down the red pill rabbit hole once again in the high-minded rhetoric of defending the First Amendment. To his mind, nothing Trump said to a rowdy crowd of rioters who cheered on efforts to kidnap the governor of Michigan, invade state capitols, and spent the last couple of weeks openly discussing an effort to kill Mike Pence, could have possibly amounted to incitement.

Whether telling an angry mob to go to the Capitol and “fight like hell and if you don’t fight like hell, you’re not going to have a country any more” after your lawyer told them to engage in “trial by combat” meets the Brandenburg test is certainly a question. Was the speech “directed to inciting or producing imminent lawless action,” and was the speech “likely to incite or produce such action”? It’s hard to say it wasn’t.

But that’s not really relevant to an impeachment.

An impeachment does not require that a president take an action that would otherwise result in criminal conviction. The overwhelming balance of constitutional scholarship — which Dershowitz admits — concludes that a “crime” is unnecessary for convicting and removing an officer under the impeachment provision. The fact that Trump’s actions were at least, for lack of a better term, incitement-esque is enough for the Senate to convict him. And, importantly, to strip him of his post-presidential perks or his ability to hold future office.

Sponsored

Despite this, Dershowitz is working overtime in the media to craft the false narrative that an impeachment presents a unique danger to constitutional order. As he told Fox News:

The professor said that impeaching a president for his words would set a precedent that was not envisioned by the framers of the Constitution.

“It would lie around like a loaded weapon ready to be used by either party against the other party,” he said, “and that’s not what impeachment or the 25th Amendment were intended to be.”

A memory from law school that still resonates with me involves a student who balked at the professor’s hypothetical citing a slippery slope of imagined consequences prompting the professor to say, “That’s great, but let’s say the slippery slope ends exactly where I said it did and you try actually answering the question.”

Maybe we can all agree to hold the line on this impeachment at “sending an armed mob to try and hang the Vice President” and if it ever comes up again, we’ll cross that bridge when we come to it.

Alan Dershowitz says he would defend Trump in another impeachment trial [Boston Herald]
Dershowitz calls Trump impeachment a ‘loaded weapon’ that would be ‘so dangerous to the Constitution’ [Fox News]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

, , , , , ,