The argument I made earlier about Dershowitz' "constitutional" argument, just made a bit more eloquently, and with appropriate historical references.From @AlanDersh’s 2018 book: “Assume Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea. Assume further that [President Trump] allows him to do it ... That would be terrible, but [not] impeachable.” That’s really Trump’s legal position??????!!!@lisamurkowski take note!— Laurence Tribe (@tribelaw) January 18, 2020
Edmund Burke drew up impeachment charges against Hastings in 1786, and his trial began in the House of Lords in February 1788. Burke’s celebrated speeches and reports against Hastings—widely reprinted in US newspapers at the time—often accused him of abuse of power. /3— John Mikhail (@_John_Mikhail) January 19, 2020
E.g., in a trial speech on 2/15/1788, Burke said: “It is by this tribunal, that statesmen, who abuse their power, are accused by statesmen, and tried by statesmen; not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality…” /4— John Mikhail (@_John_Mikhail) January 19, 2020
“...It is here that those who by the abuse of power have violated the spirit of law can never hope for protection from any of its forms; it is here that those who have refused to conform themselves to its perfections can never hope to escape through any of its defects…” /5— John Mikhail (@_John_Mikhail) January 19, 2020
The next day (Feb. 16, 1788), Burke charged that Hastings “took advantage of the imperfections of the institution [i.e., the East India Company] to let in his abuse of the powers, with which he was intrusted.” /6— John Mikhail (@_John_Mikhail) January 19, 2020
Finally, in an April 1794 report, Burke wrote that the House of Commons had chosen to impeach Hastings “because the inferior courts were habituated...to try men for the abuse only of their individual and natural powers, which can extend but a little way.” Burke then added… /7— John Mikhail (@_John_Mikhail) January 19, 2020
“...But in the cause which your managers have in charge, the circumstances are the very reverse….The abuses, stated in our impeachment, are not those of mere individual, natural faculties, but the abuses of civil and political authority.” /8— John Mikhail (@_John_Mikhail) January 19, 2020
In the impeachment of President Andrew Johnson, House Manager Benjamin F. Butler of Massachusetts defined “high crime or misdemeanor” to include “the abuse of discretionary power from improper motives or for any improper purpose.” /10— John Mikhail (@_John_Mikhail) January 19, 2020
At the 1787 constitutional convention, Edmund Randolph explained that “The propriety of impeachments was a favorite principle with him [because]… The Executive will have great opportunit[ie]s of abusing his power.” /11— John Mikhail (@_John_Mikhail) January 19, 2020
As I was saying, the "important" argument Dershowitz now claims is at the center of Trump's defense, is an argument that you can't prosecute a President for a crime (courtesy of the OLC memo), so you can't impeach a President because impeachment requires a crime; and not just the allegation of a crime (which has been alleged), but proof beyond a reasonable doubt of a crime, which is the standard of law a criminal offense requires. Short of that, no President can ever be impeached; which means no President can ever be impeached, and so can do whatever he or she can politically get away with. Then again, ETTD:Finally, there is the text of the Constitution itself, which imposes solemn obligations of “faithful execution” on the President in exercising all of his executive powers. Abusing delegated powers is the antithesis of faithfully executing them. /12— John Mikhail (@_John_Mikhail) January 19, 2020
Well, and there's this:.@gtconway3d with an nuanced analysis of the Dersh-Starr selection. points out Trump always has trouble getting quality counsel a) b/c he doesn't pay bills; b) he doesn't take direction and c) he kills firms' recruiting efforts. https://t.co/ZqmTpRvr9P— Harry Litman (@harrylitman) January 19, 2020
No matter how deep you go, you never touch bottom with this guy.Watergate's John Dean thinks Trump wrote part of his legal team's brief -- because it's so terriblehttps://t.co/7ADWFqscXY— Raw Story (@RawStory) January 19, 2020
Slipping in at the last minute, an "Also as I was saying":
Trump hired Starr & Dershowitz not because of their legal skills but because of their TV skills—which is where the court of public opinion is convened. The first filing by Trump’s lawyers makes clear that they have no interest in a substantive defense. https://t.co/KPC9MuEefH— Max Boot (@MaxBoot) January 19, 2020
The question remains: it matters not what defense Trump puts on; the question is, can the Senators defend Trump's defense?
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