The American nation, probably in the throes of its greatest domestic crisis since the McCarthy period and the Vietnam War debates, experienced Monday evening Alan Dershowitz’s superb, indeed magisterial, destructio of the Democrats’ impeachment “case”. The speech expressed the utility of intellect and learning, and complete historical and textual mastery of the Anglo-American legal and juridical tradition. And it was given by a man who, claiming to remain a liberal Democrat, is no uncritical partisan of President Trump. In its wide learning and pragmatic political concreteness, it symbolizes, and expresses, in the highest and best sense, what “academic” analysis, at once historical, rational, and concretely experiential, can be.
Dershowitz is Professor Emeritus at Harvard University’s Law School; his thought is what used to be termed “objective”, or “disinterested”. His concern for the correct historical and linguistic interpretation of the Constitution, and its use as the basis of the national well-being of his country, was paramount and beyond partisan politics. Focusing on the uniqueness of the American Republic’s doctrine of separation of powers, he pointed out that there is no Constitutional warrant for the House majority’s two impeachment charges, abuse of power and obstruction of Congress.
The Constitution, expressing the Founders’ clear intentions, clearly emphasizes “treason, bribery, or other high crimes and misdemeanors” as the sole basis not only for impeachment by the House of Representatives, but for the Senate’s acting as a court of final resort judging whether the charges brought by the House in fact rise to the prescribed level.
Dershowitz clearly demonstrated that neither of the House’s two charges against Trump—abuse of power, and obstruction of Congress—rise to the stipulated “crimes” requisite to justify the most serious action available to Congress short of a declaration of war, removal of a duly-elected sitting Chief Executive.
In finding that both impeachment charges were defective, in that they did not rise to the Constitutional standard, but rather sought to penalize the President on a party-political basis for actions, which fell within the framework of permissible political actions, Dershowitz argued that the proper judgemental forum for the charges brought was not impeachment, but in fact the coming 2020 national election.
Abusing Constitutional checks-and-balances would, by making the House of Representatives superior to the Senate as well as to the Executive branch, transform American government into a parliamentary system, in which the Prime Minister serves at the pleasure of an often-shifting Parliamentary majority, something which, again, the Founders strenuously sought to avoid.
Dershowitz concluded his analysis by abjuring Democrats and Republicans to adopt what he termed the “other shoe” principle: to rise above partisanship and, imagining themselves members of the opposing party, to examine the extent to which their position on impeachment reflected not valid Constitutional principles and true patriotic concerns, but opportunistic, and dangerous, party-political ideological positions. Indeed, were the Democrats to succeed in removing Trump on the improper grounds advanced, the way would be open in the future to repeated plebiscitary chaos and the destruction of American republican government
This testimony, at once profoundly learned and morally powerful, is a witness that will be long remembered, and which could, if only the country were to heed his warning, well reverse the long cultural-political slide which has brought us to the present impasse. Alas, few were listening, and even Fox News didn’t give it full coverage (here, CNN, despite its usual pro-Democrat partisanship, is to be commended for running it in full). One is reminded, sadly, of Breughel’s Fall of Icarus painting, in which Icarus’ fall into the sea, his waxen wings melted by flying to close to the sun, occurs unnoticed as ordinary life goes on around him. Let us pray that Dershowitz will not prove to be a contemporary juridical-political Icarus.)
It was a remarkable moment—this grandson, as he noted, of Jews fleeing European persecution, an internationally-renowned Harvard Law School professor, standing two generations later in the well of the Senate defending the uniqueness of American democracy by delivering what is surely the finest public summary of the essence of American juridical-political values and experience of our time.
The speech is at the same time an example of remarkable learning and true political and moral courage, well worthy, should liberal democracy survive the current demagogic cultural-ideological and political attacks on its foundations (of which the impeachment trial and related media frenzy are prime examples) to be ranked with Thucydides’ Funeral Oration, Lincoln’s Gettysburg Address, and Churchill’s great 1940 “Great Britain Alone” speeches to Parliament.
(Prof. Frederick Krantz is Director of the Canadian Institute for Jewish Research, and Editor of the Daily Isranet Briefing.)