By Gregg Re | January 27, 2020

Harvard Law School Professor Alan Dershowitz, delivering a spirited constitutional defense of President Trump at his Senate impeachment trial Monday night, flatly turned toward House impeachment managers and declared they had picked "dangerous" and "wrong" charges against the president -- noting that neither "abuse of power" nor "obstruction of Congress" was remotely close to an impeachable offense as the framers had intended.

In a dramatic primetime moment, the liberal constitutional law scholar reiterated that although he voted for Hillary Clinton, he could not find constitutional justification for the impeachment of a president for non-criminal conduct, or conduct that was not at least "akin" to defined criminal conduct.

"I'm sorry, House managers, you just picked the wrong criteria. You picked the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents," Dershowitz told the House Democrats, including head House impeachment manager Rep. Adam Schiff, D-Calif.

He said that "all future presidents who serve with opposing legislative majorities" now face the "realistic threat" of enduring "vague charges of abuse or obstruction," and added that a "long list" of presidents have previously been accused of "abuse of power" in various contexts without being formally impeached.

The list included George Washington, who refused to turn over documents related to the Jay Treaty; John Adams, who signed and enforced the so-called "Alien and Sedition Acts"; Thomas Jefferson, who flat-out purchased Louisiana without any kind of congressional authorization whatosever; John Tyler, who notoriously used and abused the veto power; James Polk, who allegedly disregarded the Constitution and usurped the role of Congress; and Abraham Lincoln, who suspended habeas corpus during the Civil War. Ronald Reagan, George H.W. Bush, and others would also probably face impeachment using the Democrats' rules, Dershowitz said.

"Abuse of power," he argued, has been a "promiscuously deployed" and "vague" term throughout history. It should remain a merely "political weapon" fit for "campaign rhetoric," Dershowitz said, as it has no standard definition nor meaningful constitutional relevance.

Dershowitz then said he was "nonpartisan" in his application of the Constitution, and would make the same arguments against such an "unconstitutional impeachment" if Hillary Clinton were on trial -- passing what he called the "shoe on the other foot" test.

"Purely non-criminal conduct such as abuse of power and obstruction of Congress are outside the range of impeachable offenses," Dershowitz said.

He quoted Supreme Court Justice Benjamin Robbins Curtis -- one of the two dissenters in the notorious 1857 "Dred Scott v. Sandford" decision and counsel for President Andrew Johnson during his impeachment trial in 1868 -- as saying there can be no impeachable offense "without a law, written or unwritten, express or implied."

Johnson, Dershowitz observed, was impeached for violating the Tenure of Office Act -- a statute essentially designed to create the pretext to impeach Johnson. By passing the law first, lawmakers expressly recognized that criminal-like conduct was needed for impeachment, Dershowitz argued. (No president had ever been impeached for non-criminal conduct until Trump's impeachment last year.)

Indeed, a "close review of the history" near in time to the founding of the United States, Dershowitz said, revealed that the founders explicitly wanted to avoid making impeachment so arbitrary and powerful that it effectively created a "British-style parliamentary democracy," in which presidents served at the pleasure of the legislature.

Dershowitz further suggested that the "rule of lenity," or the legal doctrine that ambiguities should be resolved in favor of defendants, also counseled toward acquitting the president. The Constitution permits impeachment and removal of presidents for "treason," "bribery," and "high crimes and misdemeanors," but does not clearly define the terms.

Responding to reports that former national security adviser John Bolton has written in his forthcoming book that Trump told him he wanted to link Ukraine aid to an investigation of the Bidens, Dershowitz argued that even an explicit "quid pro quo" would not constitute an impeachable "abuse of power."

"Nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power, or an impeachable offense," Dershowitz said. "That is clear from the history. That is clear from the language of the Constitution. You cannot turn conduct that is not impeachable into impeachable conduct simply by using terms like 'quid pro quo' and 'personal benefit.'"

"It is inconceivable," Dershowitz said, that the framers would have intended such "politically loaded terms" and "subjective'" words without clear definitions to serve as the basis for impeachment.

Fearing a partisan impeachment process, the framers had rejected the offense of "maladministration" as a basis for impeachment, Dershowitz noted, and "abuse of power" was similarly vague.

Dershowitz wrapped up his argument, steeped in historical and textual analysis of the constitution and founding documents, by urging senators to reject the "passions and fears of the moment," as the framers had similarly warned.

A series of Republican senators lined up to shake Dershowitz's hand after his presentation concluded.

https://www.foxnews.com/politics/trump-i...n-bolton-senate