Speaker Pelosi has announced that the House will move forward in its determination to impeach President Trump. Were the House to impeach based on the current record, it would be acting unconstitutionally and abusing its authority.
The Constitution authorizes impeachment only for “treason, bribery and other high crimes and misdemeanors.” These criteria have not been met but the Judiciary committee has been told by three academic experts that they need not be met. It is enough, according to these experts, for a majority of the House to believe that the president abused his office, acted corruptly, placed partisan interests over the national interest, or committed other political sins about which the Framers were concerned. But the Framers explicitly rejected the vague, open ended criteria these experts would have the House apply. Instead, they accepted only four criminal criteria that must be satisfied as a prerequisite to impeachment. If they are not met, the House has no power to impeach, regardless of how bad or corrupt they believe a president has become.
James Madison, the father of our Constitution, feared that open ended criteria would result in a situation where the president served at the will of Congress, much as British prime ministers serve at the will of Parliament. He did not want our new republic to turn into a parliamentary democracy, in which the legislative branch is more powerful than the executive. Under our system of checks cans balances, the president is not above the law, but neither is Congress.
The three Democratic experts would place congress over the constitution. They would effectively “amend” the words of the Constitution to make them mean what these experts believe would be “better” criteria for impeachment. But the Constitution cannot be amended through stretched academic interpretation. Moreover, it is highly doubtful that their amendments would constitute an improvement over the words deliberately selected by the Framers. They would turn impeachment into a partisan weapon to be wielded by any House majority against any president of the opposite party. All presidents are accused by the opposing party of abusing the office, and many have. The remedy for such perceived abuse is not impeachment. It is election.
Alexander Hamilton regarded partisan impeachment as a great danger. That’s why he, too, wanted specific prerequisites, rather than open ended invitations to partisan weoponization.
Were the House to ignore the words of the Constitution, or to construe them into meaningless clichés, it would be acting unconstitutionally and — according to Hamilton — it’s actions would be “void.” It would be abusing its powers and those who voted for it would be violating their oath of office.
There are those like Congresswoman Maxine Waters who argue that Congress can impeach on any ground a majority wishes. “There is no law,” she has asserted, because then power to impeach is vested solely in the House and there is no judicial review of its actions. Even if that were true — and it is debatable —Waters’ lawless and reductionistic view confuses what Congress can get away with, as distinguished from what the Constitution obliges its members to do: namely to apply the criteria set out in the Constitution.
If the House lawlessly impeaches President Trump, there are remedies. The first is in the Senate, where a majority could conclude that the impeachment was unconstitutional and therefore void. The second is also in the Senate, which could vote to acquit, as it did in the case of President Clinton. The third might be in the courts, where a challenge could be leveled against the unconstitutional actions of the House. Two former Justices have suggested that there might be a role for the judiciary in a case of extreme abuse of the impeachment. The final remedy is with the voters, who could make lawless members of Congress to pay an electoral price for their abuse of power.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of "Guilt by Accusation" and "The Case Against the Democratic House Impeaching Trump." Read more reports from Alan M. Dershowitz – Click Here Now.
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