Dersh For The Worst Defense

What are the chances that a former Harvard lawprof, criminal defense lawyer, raging liberal, whose time had come and gone, would be relevant again? Not bad, as long as you’re willing to sling the crazy on behalf of the the president who makes Nixon look trustworthy and George W. look smart.

On the one hand, Alan Dershowitz challenges many of the wacky excesses of the “resistance,” which has shown no reluctance to resort to TrumpLaw, irresponsible reversals of law and logic specifically directed at a president for whom law and logic would mean nothing if he were aware of them and capable of grasping them. But on the other hand, persisting in the defense of the absurd has put Dersh in the position of having to push the envelope ever farther. When it comes to impeachment, Dersh pushed it over the edge.

President Trump has suggested periodically that the Supreme Court would intervene to block a hypothetical impeachment and trial since (he argues) he has not committed a high crime or misdemeanor. Of course, Trump does not just make this stuff up. He has actual lawyers advising him who tell him these things—among them, Rudy Giuliani, who recently tweeted that the “Supreme Court could overrule an unconstitutional impeachment.” Giuliani, in turn, was amplifying an argument that Alan Dershowitz has been making for a while, most recently at The Hill. But Dershowitz is wrong.

As Keith Whittington notes, there are two prongs to Dersh’s argument, the first being what he calls Dersh’s “idiosyncratic” view of “high crimes and misdemeanors.” Dersh takes the position that crimes means crimes, as in whatever conduct is criminalized by Congress in the same technical sense as a criminal indictment of a groundling.

Legal scholar Alan Dershowitz writes in a new book that the Supreme Court could intervene if President Trump is impeached, overturning a congressional vote to remove him from office for “collusion” with Russia during the 2016 election.

Even if public evidence of collusion were to emerge, the Harvard Law School professor emeritus writes in “The Case Against Impeaching Trump” that it would not be a crime, contending Trump could collude to let Russia retake Alaska without grounds for removal from office.

But the more significant question is raised by the question, who decides? Dersh would put the question to the Supreme Court, based upon its primacy in constitutional interpretation. After all, if the decision of what constituted a high crime and misdemeanor was left to Congress, it would answer itself by definition, as the House would indict or not, and the Senate would convict or not. If either ends with “not,” problem solved. If both houses lower the boom, then the president gets his answer.

What’s the Supreme Court got to say about it?

The traditional answer to that question has been that Congress gets to decide. The House gets to choose who it wants to impeach, and in an impeachment trial the Senate gets to make the final judgment on whether the House’s action was justified. When the Supreme Court was asked to weigh in on the question of whether the Senate had properly conducted an impeachment trial in the case of Judge Walter Nixon, it firmly rebuffed that effort.

Chief Justice William Rehnquist observed, “The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers.” The entirety of the impeachment power, the Supreme Court ruled, was a political question firmly entrusted into the hands of the House and the Senate in exercising their “sole” power in that process and the courts had nothing to do with it.

Of course, the House and the Senate could settle on a flawed interpretation of the constitutional impeachment power. It is just that Congress is unreviewable in this context, just as the Supreme Court is effectively unreviewable in the context of many other constitutional controversies.

The ultimate point is whether Congress can “settle on a flawed interpretation.” As Justice Jackson said, the Supreme Court “is not final because it’s infallible, but we are infallible only because we are final.” The same would apply to Congress in the exercise of the impeachment power if there was no mechanism for review, so if they reject Dersh’s cramped and technical interpretation of crimes and view impeachment as a purely political process, there can be no “flawed interpretation” as the outcome in the Senate would be the interpretation by virtue of finality, if nothing else.

This is where Dersh pushes the envelope just a little too far.

In his latest foray, Dershowitz proposes the worst possible option. If the Senate holds a trial and convicts, Dershowitz suggests, the president should simply refuse to leave office and insist that the Supreme Court adjudicate his claim that his conviction violated the Constitution. Dershowitz stakes out the strongest possible claim for judicial supremacy. The Supreme Court and the Supreme Court alone should resolve all disagreements about constitutional meaning, and the president should simply defy Congress until the court intercedes.

The image of Trump, following removal from office by the Senate, being forcibly evicted from the West Wing might be a sight to behold, but be highly unlikely to produce the outcome Dersh envisions. Would a nation calmly let Trump remain isolated in the White House, a nation without a recognized president, a football without the current codes, until the Supreme Court rules or, as is almost certainly the case, refusing to take the papers, refuses to rule?

Whittington uses the phrase “crisis of fidelity” rather than constitutional crisis, which well captures the point: if the Senate convicts the president for a “crime” the nation refuses to accept as a justified basis for impeachment, then the failure of fidelity falls on Congress. But if Trump is convicted by the Senate, even though he and Dersh dispute whether it’s sufficiently criminal-ish to suffice as a “high crime and misdemeanor,” then the crisis of fidelity falls on Trump.

Either way, it’s purely political, which is what impeachment was always meant to be. The only question then is whether the guys with guns protect the president from eviction or do the evicting.* That’s the scenario that should never happen, and Dersh is absolutely wrong to promote a course of conduct that would lead to such a scenario.

*Ken “Popehat” White has kindly provided a visual to assist in what this might look like.

20 thoughts on “Dersh For The Worst Defense

  1. Pedantic Grammar Police

    It’s a clown show. Trying to analyze it will only give you a headache.

    Why did Bozo hit Silly Billy on the head with a toilet plunger? Because it’s a clown show. Sit back and enjoy the show.

      1. Pedantic Grammar Police

        Don’t blame the voters. There were 2 clowns on the ballot. The funnier clown won.

        I’m happy with the result; the other clown was actually pretty depressing and not funny at all. Trump saved us from at least 4 years of that shrill screeching voice and that entitled smug face. We are going down the toilet either way; we might as well be entertained on the way down. The impeachment show is going to be amazing!

        1. SHG Post author

          How many republicans ran to be the party’s nominee?

          Washington earned America’s enmity, so America punished politicians by committing stupidity all around.

          1. Pedantic Grammar Police

            Jeb Bush was the anointed Republican clown. Unfortunately he just wasn’t funny.

            Many Americans have given up on the idea that politicians will change anything. If they hadn’t already given up when Obama got in with his promises of hope and change, he was the final nail in the coffin (as he was for me; I voted and campaigned for him).

            It appears that many Americans have embraced the idea that politics is merely entertainment, and they will vote for the most entertaining clown, regardless of that clown’s “policies.” Trump is the result.

            1. SHG Post author

              Some nice folks told me they voted for Trump to make the system implode, as if politicians would recognize that if they didn’t learn to work together, to compromise, to serve the public interest rather than parochial or self interest, this would be the penalty. It isn’t working out as well as they hoped.

  2. Richard Kopf


    As we have discussed, there is nothing more sad than an old judge, or in Dersh’s case, an old professor, trying to remain relevant. The effort frequently pushes the oldster to the extreme.

    It is time for Dersh to STFU–if you know what I mean. That is certainly what the Supreme Court would and obviously should do if confronted with a request to intercede in an impeachment of the President.

    All the best.


    1. SHG Post author

      Dersh has always had a burning desire to be famous, which led him to many peculiar positions over his tenure at HLS. At the outset of TrumpLaw, he served a purpose, challenging the Tribian rationalization that we could ignore all precedent a create a new legal framework to neuter this vulgar amoral ignoramus. Someone needed to say it out loud, and Dersh was willing to play the foil.

      But fame is a drug to some and too often leads a guy to OD when he needs the high too desperately.

  3. Hunting Guy

    Off topic and not Tuesday, but you hit a nerve.

    Keith Hennessy.

    “At a minimum I hope you will test your own assumptions and thinking about our former President. I offer a few questions to help that process.

    Upon what do you base your view of President Bush’s intellect? How much is it shaped by the conventional wisdom about him? How much by verbal miscues highlighted by the press?

    Do you discount your estimate of his intellect because he’s from Texas or because of his accent? Because he’s an athlete and a ranch owner? Because he never advertises that he went to Yale and Harvard?

    This is a hard one, for liberals only. Do you assume that he is unintelligent because he made policy choices with which you disagree? If so, your logic may be backwards. “I disagree with choice X that President Bush made. No intelligent person could conclude X, therefore President Bush is unintelligent.” Might it be possible that an intelligent, thoughtful conservative with different values and priorities than your own might have reached a different conclusion than you? Do you really think your policy views derive only from your intellect?

    And finally, if you base your view of President Bush’s intellect on a public image and caricature shaped by late night comedians, op-ed writers, TV pundits, and Twitter, is that a smart thing for you to do?”
    As a final point – I served with Air Force pilots. Some were jerks but all of them were smart or they wouldn’t be flying. Bush flew fighter jets. How many of his bashers are intelligent enough to make it through flight school?

  4. Allen

    Most of the time when someone writes down an operating procedure they tend to only include the steps they want followed. If there was only some way we could re-write the operating procedure. We could however just make it up as we went along and see what happens. That would be fun.

  5. Fubar

    Even if public evidence of collusion were to emerge, the Harvard Law School professor emeritus writes in “The Case Against Impeaching Trump” that it would not be a crime, contending Trump could collude to let Russia retake Alaska without grounds for removal from office.

    I have heard mermaids sing, each to each,¹
    Where the sea meets a cold moon-blanched beach:²
    “The navy Nebraskan,
    In waters Alaskan,
    Trumps Russia — No need to impeach!”

    FN 1: Humblest apologies to Mr. Eliot.

    FN 2: And to Mr. Arnold.

      1. Guitardave

        What were you doing….up there, “in waters Alaskan”?….Surveying for Mr. Putin?…Huh?

  6. B. McLeod

    You never know how far things might go if the Court decides to (once again) employ Marbury as its commission to ride forth like El Zorro, righting whatever and combating whatever else. If Congress impeaches and removes, and the Court decides to wade in and “reverse” it, I think it still comes down to the political issue of who will the people (or maybe, just the military officers) back?

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