Democrats’ Impeachment Aims for U.S. To Be a British Parliamentary System, Says Dershowitz
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Alan Dershowitz, representing President Donald Trump in the impeachment trial Monday night, focused his central fire on the fact that the Democrats’ Articles of Impeachment, if allowed to stand to remove the President, would overturn the most important effort of the founding fathers: to not allow the British system of parliamentary democracy to infect the American System. Over and over again he quoted Gouverneur Morris, Alexander Hamilton, James Madison, and others from the Federalist Papers and the reports on the debates of the framers of the Constitution, warning that removing the President with no delineated crime would destroy the Constitution and turn the country into a British-style Parliamentary system, in which a mere vote of “no confidence” could remove a President, overturning the will of the people. It is the Congress, he said that is acting as if it were “above the law.” (He quoted Rep. Maxine Waters saying “Impeachment is whatever the Congress says it is.”)
He said that during the debate over the categories to be included as impeachable by the founding fathers, one representative argued for “mal-administration” to be included, with Dershowitz adding that this was essentially equivalent to the “Abuse of Power” of the Democrats’ Article 1 against Trump. James Madison insisted that mal-administration be removed as too vague, that it could mean whatever the accusers wanted it to mean, just as with “abuse of power,” and would allow a British-style “no confidence,” with no crime enunciated. Only actual crimes—in fact, only high crimes and misdemeanors—equivalent to the enunciated “treason and bribery,” could be considered impeachable. The argument by some Democrats that “misdemeanor” included non-criminal acts, he argued, was refuted by the wording itself (“high crimes and misdemeanors”) and by the understanding at the time that “misdemeanor” was essentially equivalent to “crime.”
He stated that even “incapacitation” was not included as impeachable, since it is not a crime, even though it clearly should be a basis to remove a President, and observing that a new Amendment had to be added to deal with that eventuality—not impeachment.
Dershowitz was the only Trump-team lawyer on Jan. 27 to address the Bolton “revelations” by the New York Times, which every corporate media outlet is screaming about as the latest “smoking gun” that proves Trump is guilty, and shows why there must be witnesses. Even if everything Bolton is reputed to say in his book were true, Dershowitz said, that would not be grounds for impeachment. Making up the term “quid pro quo” as a crime was a hoax, he said, pointing out that every negotiation with a foreign power, by every President in history, has been a matter of quid pro quos, which is the nature of negotiations. (He did not address the corruption/Biden issue, as he was only tasked with the constitutionality of the charges.)
He said that Hamilton had insisted that the Congress could not determine its own powers, that when a conflict arose with the Executive branch, only the courts could determine the issue. The Article 2 bogus contention of an Obstruction of Congress based on Trump claiming Executive privilege, as every President in history has done, is not only not a crime, he asserted, but it is only the courts that can decide on particular issues, not an impeachment trial. The House, of course, refused to take it to court because of “lack of time,” hardly a legal argument.
Dershowitz posed the “shoe on the other foot” test, calling on the Senators to conduct a “thought experiment.” Otherwise, he concluded, Hamilton’s concern that impeachment would be abused, based on the “passion of the times,” would prove to be the undermining of the Constitution.