Thanks to former Vice President Joe Biden, House Democrats' second article of impeachment, obstruction of Congress, is effectively destroyed, according to constitutional law expert Alan Dershowitz.
That comes from Biden's stated refusal to comply with a congressional subpoena short of a court order, just as President Donald Trump did in the House impeachment inquiry, Dershowitz wrote in an op-ed to The Hill.
"By echoing Trump, Biden has provided the president with an airtight defense to the second article," Dershowitz, who testified against the impeachment of former President Bill Clinton. "If Biden is not obstructing the Senate by his refusal to comply with a Senate subpoena, how could Trump be guilty of obstructing Congress by refusing to comply with the House subpoenas absent court orders?
"The shoe is now on the other foot and causing blisters for Democrats. It could also be uncomfortable for Republicans, who may have to acknowledge that Biden has a point."
In fact, Biden's refusal to testify is even less justified than that of the president of the United States, Dershowitz argued.
"The power to challenge Congress in the courts makes concrete the abstract notion that no person or institution, including the legislative branch, is above the law and is subject to judicial resolution," Dershowitz wrote. "Both Trump and Biden have acted on this principle, and neither of them should be condemned for doing so.
"In a more perfect and less partisan world, what Biden said would lead the House to reconsider and reject the second article of impeachment, which never was a proper ground in the first place," he continued. "If they will not, the Senate must take what Biden said into account when evaluating the second article."
All this, ultimately, makes Biden an even more important witness for the president's legal team, Dershowitz, author of "Guilt by Accusation," concluded.
"Ironically, the original statement that Biden made about not complying, even when taken with his clarification, may now give the Trump legal team a more compelling basis for calling the former vice president as a witness," he wrote. "He could be asked to justify his original refusal to comply with a Senate subpoena, and then be asked why the refusal by Trump is any more obstructive than his.
"This all goes to show how critical the 'shoe on the other foot' test is in a case of impeachment, and how difficult it is for partisans of both sides to comfortably wear shoes designed to fit only their political opponents."
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