What would the framers think of Dershowitz and the Senate impeachment trial? | Deseret News

Commentators have maligned Alan Dershowitz, a Harvard law professor and legal counsel for the president, for his testimony in the Senate impeachment trial. In my view it was the most persuasive testimony offered by any member of the president’s legal team. He raised important issues that must be addressed.



Professor Dershowitz ostensibly took the words of the framers seriously in determining what legal standard should prevail in determining whether the president should be impeached and whether witnesses should be heard. Dershowitz correctly argued that a mere “maladministration” standard was eventually rejected by the framers. As Dershowitz notes, George Mason argued that a president could be impeached for “maladministration.” James Madison responded that “maladministration” is “vague” and would “be equivalent to a (presidential) tenure during pleasure of the Senate.”



Dershowitz, however, overstates his case. He wants us to assume that the framers, particularly Madison, jumped from a very weak maladministration or malpractice standard to an exceedingly strict impeachment standard. Such a dramatic move, essentially a paradigmatic shift, is inconsistent with what the framers said and human nature. The framers settled on a stronger standard than “maladministration” but not on Dershowitz’s exceedingly strict and carefully crafted standard of treason, bribery, or a crime akin to treason or bribery.



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Dershowitz implies Madison supported his position. He did not. In the convention, Madison argued that it was “indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security.” Madison added the president “might betray his trust to foreign powers” and noted that in “the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.” For Madison, corrupt use of presidential power for personal gain, particularly in foreign affairs, constituted an impeachable offense.



Elbridge Gerry, Edmund Randolph and Gouverneur Morris all agreed that impeachment should include corruption, particularly in the wielding of presidential power with a foreign government. Gerry noted, “A good magistrate will not fear (impeachments). A bad one ought to be kept in fear of them.” Randolph stressed, “The Executive will have great opportunities of abusing his power; particularly in time of war when the military and public money will be in his hands.” Morris joined in fearing that a president might exercise his or her powers inappropriately with a foreign power and should be removed for “treachery or neglect of duty.” The delegates, as a whole, overwhelmingly supported a standard that would make corrupt use or abuse of presidential power for personal gain in foreign affairs an impeachable offense.



Dershowitz knows the intent of the framers does not support his view. He, therefore, strangely asserts that it is “a fallacy” to argue that the reasons offered by the delegates in fashioning an impeachment standard should be given any consideration in determining the meaning of the words of that standard. He is a textualist, not an originalist, and admittedly prefers, as a highly respected defense counsel, to be free to shape the words of the text in his client’s interest, while disregarding the clear intent of the delegates in framing the words “high crimes and misdemeanors.”



The framers would join the American people in wanting to know the truth.


When one examines the words or intent of the framers, as anyone can do by searching the term “impeachment” www.quillproject.net, if the president corruptly wielded his powers as commander in chief to obtain a personal “favor” from a foreign government, in the form of an investigation of a leading rival in an upcoming election, he has committed an impeachable offense. The Democrats presented evidence, most of which is not firsthand, that the president was acting for personal gain and not in the public interest in his dealings with the Ukraine. The Republicans, in turn, argue that the president was simply seeking to root out generalized corruption and unartfully used the name of his major opponent as an example of such corruption. Hearing from firsthand witnesses, as has been the case in every past impeachment proceeding, will help the American people know which version of the facts is true. The framers would join the American people in wanting to know the truth.



Perhaps prophetically, Madison feared that the Senate would be enticed by partisan political interests to ignore their duty. He, therefore, repeatedly argued that the Supreme Court and not the Senate should try an impeachment case against a sitting president. As a Madisonian scholar, and a devoted constitutionalist, I am left with an increasingly fragile hope that senators on all sides will take their oaths seriously in fulfilling their responsibility to hold a full and fair trial replete with witnesses and thereby prove that Madison was wrong and the framers as a whole were right in giving the Senate the heavy responsibility to try impeachments.

© 2020 by Rodney K. Smith