gracchusdixit

Amidst the unrelenting tumult of Donald Trump’s presidency, it has become increasingly difficult to distinguish between fact and fiction, tragedy and comedy.  In fact, it is by no means clear that Trump himself can discern the difference—or even cares.  This shouldn’t surprise us, since Trump’s one indisputable claim to fame is the line, “You’re fired!”, which he declaimed ad nauseam on The Apprentice, a now-defunct reality-tv show in which he pretended to be the brilliantly successful businessman that he manifestly is not.  After a couple of seasons near the top of the charts, The Apprentice, like everything in the ephemeral world of television, ran out of gas, and quickly faded into oblivion.  Even so, it was the closest thing Donald Trump has ever come to real success in his otherwise pathetic public and private life.  

Much of that life has been spent in a desperate attempt to emulate the financial success of his shrewd, ruthless, and crooked father.  This caused Trump-the-son to commit a series of reckless gambles, which led to one financial shambles after another, requiring humiliating bail-outs from the very father he was trying to impress.  Donald Trump’s whole life, in short, has been a fraud bordering on a farce, of which his calamitous presidency is merely the latest tragicomic episode.

It is therefore both fitting and ironic that Donald Trump should have chosen Alan Dershowitz to join the legal team defending him as he faces impeachment in the United States Senate.  Fitting, because Dershowitz is a genuinely talented criminal defense attorney, and his newest client has piled up enough crimes to need the best defense money can buy.  Ironic, because Alan Dershowitz is in some respects no less fraudulent and farcical than the buffoon he now represents.  

Dershowitz poses as an expert on constitutional law and wants us to believe that, in defending Donald Trump, he is upholding fundamental constitutional principles.  His curriculum vitae can still be found on the website of the Harvard Law School, where he taught for nearly 50 years.  The opening blurb cites “numerous law review articles and books about criminal and constitutional law”.   And yet, of the 30 or so books listed in the “bibliography” section, none is a work of serious scholarship, constitutional or otherwise.  Most are some species of popular non-fiction, and several actually are fiction.  Of the 54 articles listed, ten deal tangentially with some aspect of constitutional law, and merely two focus entirely on constitutional questions.  Neither of these appeared in a legal or academic journal.  Both appeared in the popular press. 

Let it be said that there is nothing wrong with any of this.  Alan Dershowitz is entitled to write whatever he wishes wherever he wishes.  What he is not entitled to do is to pretend to be something he is not, let alone lay false claim to an expertise he does not possess.  This, however, is precisely what Dershowitz has been doing for years.  

Whatever talent he may possess as a lawyer, there is no denying his talent for self-promotion.  Shortly after his retirement, for example, Dershowitz gave an interview to The Crimson, which has been Harvard’s student newspaper for almost 150 years.  It is impossible to read the text of that interview today without laughing out loud.  It is little more than a shameless and tedious paean of praise for Alan Dershowitz by Alan Dershowitz, wherein he reveals himself to be one of those people whose only real interest is himself.  In its pages, he boasts of his “straight-A” grades at Brooklyn College and the Yale Law School.  He asserts that he was the youngest person to become a tenured member of the Harvard Law School faculty.  He claims to have been the first person at Harvard to be openly and proudly Jewish (Louis Brandeis and Felix Frankfurter, both Jews, both Harvard alumni, both renowned Supreme Court Justices, apparently don’t count).  He lays claim to super-human powers of recollection:  “I remember every single student that I called on in my class.  I remember where they all sat”.  And he proclaims his preeminence as a teacher:  “At the end of the first year, I got the highest ranking of any teacher in terms of teaching.  I was 25, and I got the highest teacher ranking.  So, I was very pleased.”  

This Trump-like avalanche of self-glorification threatens to drown or sweep away everything in its path.  But not quite everything.  Many of Dershowitz’s students have expressed opinions of his abilities that differ from his own.  To quote but one:  “Horrid, a name dropper and cares for nothing except his own personal self-aggrandizement.  Rude to students except for those who nod their heads in constant agreement to whatever falls out of his mouth.”  This description should resonate with anyone who has had to suffer through one of Dershowitz’s interminable tirades on cable television, in which little of legal or constitutional substance is ever said.

No wonder, then, that the Trump legal defense team is making constitutional arguments that are as bogus and preposterous as the man who cooked them up.  These Dershowitz-inspired arguments contend:  (1) presidents cannot be impeached unless they commit statutory crimes; (2) neither abuse of power nor obstruction of Congress, which are stipulated in the articles of impeachment against Donald Trump, appears on the statute books; therefore (3) Donald Trump cannot lawfully be impeached.

There are (at least ) two problems with these so-called “arguments”.  

The first is that no federal criminal code existed when the constitution was written.  It is therefore ludicrous to suggest that the founders were thinking of “statutory” crimes when they declared: “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  The “crimes” the founders had in mind were actions that violate the public trust and threaten the constitution itself.  

The second problem is that Dershowitz’s “argument” completely ignores the historical and legal context in which the impeachment clause of the constitution was written.  Having prosecuted a successful rebellion against a tyrannical king, the founders were concerned to rein in abuses of executive power on every level.  For precisely that reason, they added to the impeachment clause the phrase, “other high crimes and misdemeanors,” which had a long history in English common law.  In the Federalist Papers, Alexander Hamilton defined the impeachment clause this way:  “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”  If ever a public man has engaged in “misconduct,” has ever abused or violated the public trust, surely that man is Donald Trump.

For Alan Dershowitz and his cat’s paws on the Trump defense team to contend that abuses of presidential power are not impeachable offenses is ludicrous on its face.  It is also a deliberate, or ignorant, perversion of constitutional history.  

Just as Donald Trump is a reality-TV has-been whose latest (and, one may hope, last) role is pretending to be president, Alan Dershowitz is a legal has-been whose only remaining role is pretending to be a constitutional expert.  It is one of the supreme ironies of history that these two con men should have found one another at precisely this moment.  Surely, the gods are laughing.