Trump defense ‘nonsense,’ many legal experts say

WASHINGTON >> As President Donald Trump’s impeachment trial opens, his lawyers have increasingly emphasized a striking argument: Even if he did abuse his powers in an attempt to bully Ukraine into interfering in the 2020 election on his behalf, it would not matter because the House never accused him of committing an ordinary crime.

Their argument is widely disputed. It cuts against the consensus among scholars that impeachment exists to remove officials who abuse power. The phrase

“high crimes and misdemeanors” means a serious violation of public trust that need not also be an ordinary crime, said Frank O. Bowman III, a University of Missouri law professor and the author of a recent book on the topic.

But the argument is politically convenient for Trump. For any moderate Republican senator who may not like what the facts already show about his campaign of pressure on Ukraine, the theory provides an alternative rationale to acquit the president.

Indeed, if it were true, then there would also be no reason to call witnesses like John Bolton, Trump’s former national security adviser, because what he and others know about Trump’s motivations and intentions in his Ukraine dealings would not affect the outcome of the trial.

Many legal scholars say senators should not take this argument seriously. They point, among other things, to evidence that for centuries before the American Revolution, the British Parliament impeached officials for “high crimes and misdemeanors” that constituted abuses of power but were not indictable offenses.

Scholars pointed to other major landmarks. In 1788, as supporters of the Constitution were urging states to ratify the document, Alexander Hamilton described impeachable conduct in one of the Federalist Papers as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” and “political” offenses that injure society.

Critics of the Trump team’s theory have also noted that when the Constitution was drafted, hardly any federal criminal laws had been written. And several early impeachment proceedings did not involve indictable offenses.

“It is just quite clear that the commission of a crime is neither necessary nor sufficient for an act to be impeachable,” said John Mikhail, a Georgetown University law professor.

But Alan Dershowitz, a leading proponent of the theory, disagreed. He has joined Trump’s legal team and is preparing a presentation about the idea that he said he expects to make to the Senate on Friday.

Dershowitz said he interpreted Hamilton to be saying not that any violation of the public trust is impeachable, but that only crimes that are also violations of the public trust meet that standard.

Dershowitz said he intended to model his presentation on an argument put forward at the 1868 impeachment trial of President Andrew Johnson by his chief defense counsel, Benjamin Robbins Curtis, a former Supreme Court associate justice.

Curtis had argued that Johnson was not accused of committing a legitimate crime, and that removing him absent one would subvert the constitutional structure and make impeachment a routine tool of political struggle.

But other legal scholars, like Laurence Tribe, a constitutional specialist at Harvard Law School, have argued that Dershowitz is misrepresenting this aspect of the Johnson trial, especially against the backdrop of other evidence about the original understanding of “high crimes and misdemeanors.”

In an opinion article in The Washington Post, Tribe accused Trump’s legal team of using “bogus legal arguments to mislead the American public or the senators weighing his fate.”

From one perspective, the argument might not matter. Bowman noted that while the House article refers to no criminal statute, the conduct described in the abuse-of-power one “plainly draws from” the crime of soliciting a bribe.

(The Government Accountability Office has concluded that Trump’s freezing of a military aid package to Ukraine amounted to an illegal impoundment of funds, but there are no criminal penalties associated with violating that law.)

“My argument will be very serious and very scholarly,” Dershowitz said. “The fact that other scholars disagree, that’s for the Senate to consider. There is a division — most of the scholars disagree with me. I think they’re wrong.”

But Mikhail said Dershowitz and the Trump legal team were wrong, and he noted that many senators of both parties went to law school or were otherwise legally sophisticated.

“These are very smart, legally informed people,” he said. “They understand the law. They can certainly see through ruses and efforts to distract and divert.”