'Constitutional dilemma': Dershowitz says nothing impeachable as case heads to Senate

Harvard Law professor Alan Dershowitz

House Democrats are creating a "constitutional dilemma" for the Senate, where any impeachment trial would be held, contends Alan Dershowitz.

The professor emeritus at Harvard Law School wrote in a column for the Gatestone Institute that the two grounds cited by House Democrats, abuse of power and obstruction of Congress, are not "among the criteria specified for impeachment."

"Neither one is a high crime and misdemeanor. Neither is mentioned in the Constitution. Both are the sort of vague, open-ended criteria rejected by the framers," he said. "They were rejected precisely to avoid the situation in which our nation currently finds itself.

"Abuse of power can be charged against virtually every controversial president by the opposing party. And obstruction of Congress — whatever else it may mean — cannot extend to a president invoking privileges and then leave it to the courts to referee conflicts between the legislative and executive branches."

The founders, including Alexander Hamilton, "feared that vague criteria would allow a majority of the House to impeach a president from the opposing party just because they had more votes than the president's party."

Hamilton called that "the greatest danger."

"Madison worried that open-ended criteria, such as 'maladministration' would give Congress too much discretion and power, and turn our republic into a parliamentary democracy in which the chief executive serves at the will of the legislature," Dershowitz wrote.

"House Democrats are simply ignoring these words and this history, because they have the votes to do so. They are following the absurd notion put forth by congresswoman Maxine Waters that when it comes to impeachment 'there is no law,' and the criteria are anything a majority of the House wants it be, regardless of what the constitution mandates."

He called that a "lawless view" that places Congress "above the supreme law of the land, namely the Constitution."

Voting to impeach the president on those two grounds, he said, "would be unconstitutional."

Hamilton insisted that "any act of Congress that does not comport with the Constitution is 'void.'"

So what could the Senate do if the House continues down its path?

Dershowitz admitted it's "uncharted territory" but said the Democrats' articles could be dismissed.

"Another option would be for the president's lawyer to seek judicial review of the House's unconstitutional action. Despite the fact that the Constitution says that the House shall be the 'sole' judge of impeachment, two former justices have opined that there might be a judicial role in extreme cases," he said.

Third could be a "scaled down trial focusing on the constitutional defects in the articles of impeachment. No fact witnesses would be called: that would turn the proceeding into a he said/she said conflict with no clear resolution. Only legal arguments — neater and quicker — would be presented before a vote was taken."

But, ultimately, "the damage will have been done by the House majority that will have abused its power by weaponizing the House's authority over impeachment for partisan purposes."