The Senate, the Dershowitz Defense and the American Experiment

“The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.”

George Washington, Farewell Address, 1796

The Constitution seeks, through the separation of powers, to preserve freedom by avoiding excessive concentration of power in any one branch of government.  Yet, James Madison observed in Federalist #48 that “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” 

Whether you believe President Trump should have been removed from office is now a moot point.  The precedent set in his Senate trial, however, is not.  Presidential power sanctioned by one set of circumstances is hard to restrain in another.  Congress, whose power has weakened considerably in recent decades, has made itself weaker.

The first defense of Senate Republicans was that the president did nothing wrong in asking for an investigation of his political rival – and that there was no quid pro quo, tying Ukrainian military aid to the launch of that investigation.  The second defense was that he may have done something wrong but that there was no proof.  The third defense was that even if there was proof, it was not an offense that justified removal from office, overturning an election. 

Alan Dershowitz, Harvard law professor emeritus, presented the capstone to this third line of defense in his Senate presentation: 

“If the president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Dershowitz later claimed he had been misunderstood:

“Let me be clear once again (as I was in the Senate): a president seeking re-election cannot do anything he wants.  He is not above the law.  He cannot commit crimes.”  But, he went on, a lawful act “does not become unlawful or impeachable if done with mixed motives of both promoting the public interest and helping his re-election.”

What the Senate has now sanctioned by its vote enhances the power of a president in three ways.

First, given the Dershowitz argument, how can Congress prevent a president from claiming that his or her actions to seek re-election are not in “the public interest,” since it is the president who gets to decide?

Second, the Dershowitz defense defines the standard for removal as commission of a crime.  The framers of the Constitution set a higher standard.  Alexander Hamilton in Federalist #65 made clear that impeachment is for "offenses which proceed from the misconduct of public men . . . from the abuse or violation of some public trust."  Not knowing what the future would bring, and there being no federal case law at the time of ratification, Constitutional architects did not want to limit the preservation of liberty to violation of a law that might not exist.

Third, the Senate Republican argument that it must not overturn an election makes two logical errors.  The first is that an election is history so cannot be overturned.  The second is that removal from office is exactly why the power of impeachment and removal is in the Constitution.   To maintain it cannot be used is unconstitutional on the surface.

The Senate has now sanctioned at least the following actions by any future president seeking re-election:

·       Inviting help from another country, in any form that does not violate a law,

·       Asking another country to investigate, collect evidence on, and disseminate it against a political rival,

·      Making U.S. assistance, including funding, to another country contingent on help in getting re-elected, and

·       Withholding from Congress documents and testimony from administration officials on any subject where records or testimony might be a political liability.

Only new laws can prevent these or other abuses of presidential power.  Yet, until such behavior is defined as wrong by a veto-proof Congress, that’s not a promising option.  Still further, new abuses may be hard to predict, since laws generally follow bad behavior rather than proactively preventing it. 

The Senate has weakened Americans’ faith in free and fair elections and the trust in the government elections are designed to achieve.  It has weakened respect for Congress, hardly the outcome it sought.   

Reflecting on the weakness of parchment barriers, James Madison in Federalist #51 came to this conclusion:

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others . . . . Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

What Madison did not envision is the present case when the ambition of the leaders of the Senate supported the ambitions of the executive, emboldening the latter and weakening itself.  The American experiment in self-government was weakened as well.

Photo Credit: Senate Office Building, by Kaelan Burke at unsplash.com