Dershowitz: 'Neither is Congress above the law'

Harvard Law professor Alan Dershowitz

Longtime liberal Harvard Law professor Alan Dershowitz says the nation's founders would not have approved of the Democrats current effort to impeach the president.

"We hear from so many Democrats today that no one is above the law, referring to the president. But neither is Congress above the law, and the law mandates that the explicit criteria laid down in the Constitution for impeaching a president must be followed," he wrote in a commentary for The Hill.

He pointed out that Democrats are arguing "President Trump can be impeached without evidence of high criminal acts."

However, "there are good historical reasons why the current approach of Democrats seeking impeachment is wrong."

When the Constitution was assembled, he noted, there were two views of the government's structure.

"Some Framers argued that a president should be subject to removal by the legislature if he engaged in malfeasance of office or other comparable non-criminal misconduct. The other Framers took the view that giving the legislature such broad power to remove a president would turn us into the kind of parliamentary democracy that existed in England, rather than a Republic with a strong executive," he said.

So the open-ended criteria idea was rejected. The Founders said a president only could be removed after a trial resulting in a conviction for "treason, bribery or other high crimes and misdemeanors."

America's system is not like Britain's, he pointed out, in which a prime minister can be removed on a party-line vote.

"An American president, on the other hand, can be removed only if both parties agree that he has violated the stringent criteria set out in Article II of the Constitution," he said.

Nor is a "high crime or misdemeanor" whatever the House and Senate says it is, he argued.

The Constitution provides that the Supreme Court chief justice must preside over any trial, and he believes that's "to assure that Congress does not ignore the Constitution and put itself above the law."

Regarding the current turmoil in Washington, he said: "The case for impeaching President Trump based on the available evidence is extremely weak. The phone call to the president of Ukraine may have been ill-advised – but that is a judgment for voters to make. There is nothing in the call that even approaches the constitutional criteria for impeachment and removal of a president."

He said the Mueller report doesn't have evidence for impeachment, either.

"Alexander Hamilton understood the difference between low crimes and high crimes. When he was secretary of the treasury, he committed adultery and then paid hush money to prevent disclosure of his felony. (Yes, adultery was a felony at that time.) But then, when his extortionist threatened to lie and say that he paid the hush money out of treasury funds, Hamilton realized that if he had done so it would have constituted an impeachable high crime. So he published an essay admitting his low crimes but disproving any high crime. He was not impeached," the professor explained.

The Democrats have "partisan purposes" behind their impeachment drive, and he warned it could backfire.

"Today's demand by Democrats to impeach President Trump, without satisfying the constitutional criteria, may be turned tomorrow into a demand by Republicans to again impeach a Democratic president while ignoring these criteria," he said.