Rhetorical Recap: Making the Real Hypothetical
January 29, 2020
Alan M. Dershowitz for the Defense Senate Impeachment Trial, January 27, 2020
What kind of defense attorney never mentions his client by name in a speech lasting over an hour?
One delivering a professorial lecture in a unique court, that’s what kind.
On Monday night in prime time in the eastern U.S. criminal defense lawyer and law professor emeritus Alan Dershowitz soared over the particulars of the case at hand to make an argument in Constitutional air space. He shifted his voice, gestured vigorously, and signposted his text, using these speaker’s tools as a sort of auditory blackboard to indicate what points the Senators should be writing down on the pieces of paper the rules permitted them. He pulled out a well-worn book with a Post-It note. His slides showed book facsimiles from previous centuries. He spoke with the authority of a man with a long and prominent career in defending notorious figures. And when he concluded, lead defense counsel Pat Cipollone took to the podium to say he felt like he was back in law school.
Dershowitz’s lecture gained emergency relevance because revelations in The New York Times from former National Security Adviser John Bolton’s forthcoming book had undercut the defense team’s argument that the prosecution had no direct evidence to support its contention that the president had sought personal favors from Ukrainian President Zelenky in exchange for Congressionally appropriated military aid and a White House appearance. Bolton was in the room when Trump had done it.
The Republican Senators suddenly needed a Plan B, and Dershowitz provided a richly detailed rationale for one. Like most lawyers, he argued with multiple points. Foremost among them: that whatever Trump had done and said, it did not rise to the level of an impeachable offense.
In support of this contention, Dershowitz led the jury of 100 and the audience beyond through an extensive review of Blackstone, the Founders’ writings on impeachment, and the 1868 trial of Andrew Johnson. As for the 1999 trial of Bill Clinton, when Dershowitz had taken the opposite position, the professor now explained that he changed his mind on the basis of research he had done since, the fruits of which he was presenting.
The Framers, said Dershowitz, were concerned about an overweening legislative branch, and that led them to limit impeachable offenses to crimes. There were no nuclear weapons or telecommunication channels in the 1780s, technologies which have arguably tilted the balance of institutional powers toward the presidency and away from the legislature. Still, historical precedent carries a heavy weight in these matters.
Dershowitz conceded that the criminality standard is not accepted by most Constitutional scholars and lawyers. He parried this potential criticism with his rebel brand:
I do my own research and I do my own thinking and I have never bowed to the majority on intellectual or scholarly matters.
As a rule of thumb for anyone torn between the Dershowitz interpretation and that of the expert majority, the professor brought up the Rule of Lenity:
in construing a criminal statute that is capable of more than one reasonable interpretation, the interpretation that favors the defendant should be selected unless it conflicts with the intent of the statute…In other words, if Senators are in doubt about the meaning of high crimes and misdemeanors, the Rule of Lenity should incline them toward accepting a narrower rather than a broad interpretation, a view that rejects abuse of power and obstruction of Congress as within the constitutional criteria.
Therein rested Dershowitz’s second point, that the two counts came under unacceptably vague categorical names. He expanded on this vagueness charge when he acknowledged the news and tucked an unsupported assertion into his lecture, one he repeated for emphasis:
nothing in the Bolton revelations, even if true, would rise to the level of an abusive power or an impeachable offense. 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 words like quid pro quo and personal benefit.
Well, it is not clear from the evidence which continues to tumble out. What happens to this claim if words like bribery, extortion, and impoundment of Congressional appropriations fit the accumulating facts? Those are not the words heading the impeachment counts, nor the two vernacular terms he cites, quid pro quo and personal benefit. Yet they do denote crimes compatible with his argument. But to gain force, he might argue, the House would have to retitle and restructure its impeachment brief. And the accumulating facts would have to be admitted to the evidentiary record, necessitating a Senate vote to accept that.
I think Dershowitz, if he wanted to abide by his devotion to bipartisanship which he claimed at the end of the lecture, would be compelled by such evidence to change his mind again on the basis of his own standard and method. But that is a contingent hypothetical at this writing.
The apex of the lecture came when Dershowitz distinguished crimes from sins, his third defense. This was an appeal to ignore the tweets and focus on the law. It was also a subtle swipe at Schiff’s argument-gone-viral in the reverse direction, when the Congressman talked a lot about the president’s moral transgressions and asked for the Senators to evince moral courage. Dershowitz, in opposition, said that dishonesty was not an impeachable offense.
Point number four raised was the impossibility of knowing what is on the defendant/president’s mind, the legal concept called mens rea. That might be acceptable in many trials, but impeachment? Dershowitz indulged in ridicule:
a subjective probing of motives cannot be the legal basis for a serious accusation of abuse of power that could result in the removal of an elected president. Yet this is precisely what the managers are claiming. Here’s what they say, quote, “Whether the president’s real reason, the ones actually in his mind are at the time legitimate.” What a standard. What was in the president’s mind? Actually in his mind? What was the real reason? Would you want your actions to be probe for what was the real reason why you acted?
Point five repaired to a classic academic hypothetical: John Rawls’s veil of ignorance (which Dershowitz has smartly altered and renamed as the homiletic “suppose the shoe is on the other foot.”) Rawls advised making moral decisions as though you don’t know the person or people to which it will apply. Dershowitz asked the Senate to switch parties in their heads. More hypotheticals ensued.
So far, no Senators have shown an inclination to switch away from their party lines. Several Republican Senators have already echoed Dershowitz’s argument in comments—signs of a very effective speech.