Tuesday, January 21, 2020

Literary Corner: Ah but I was so much wronger then

One of the most precious things about this piece (from Dersh's interview yesterday with Anderson Cooper) is the implication that 20 years ago, when he was a famous expert in constitutional law, he "didn't do research" whereas now that he's become a disreputable shyster who must publicly announce that he kept his underwear on during a massage and complain that he gets no dinner invitations on Martha's Vineyard, he does it all the time. But it gets better:

I Didn't Do Research Back Then
by Alan J. Dershowitz
I didn't do research
back then, I relied
on what professors said ... 
because that issue
was not presented
in the Clinton impeachment
Everybody knew
that he was charged
with a crime, the issue
is whether it was
a hard crime
Now the issue is
whether a crime
or criminal-like behavior
is required. I've done
the research now --
I wasn't wrong,
I am just
far more correct
now than I was then
There's some semiotic interest in the way two legitimate arguments whimper in the corner of this poem, like captured slaves being put to unspeakable uses, the arguments that "high crimes and misdemeanors" need not be statutory crimes on the one hand—there wasn't even any Federal statute law at the time the Constitution was written, so the Founders plainly couldn't have meant that—and statutory crimes aren't necessarily impeachable on the other. Both these things are indeed true, and "a lot of people don't know that" as Trump would say, but they don't do the thing he's trying to say they do.

That is, what Dershowitz said in 1998
"It certainly doesn't have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don't need a technical crime," he said on "Larry King Live" at the time.
is certainly true, period, although the use of the term "technical" is pretty annoying—I'm assuming that he means a crime defined by a particular statute, but "well, technically it was a crime" is an expression used to minimize the criminality, as in the case of Trump's blocking of congressionally mandated spending in the Ukraine shakedown (though it's a crime that has never been punished). This is directly relevant to the Clinton impeachment, when Dershowitz was speaking publicly in defense of the president. He put it more intelligently and usefully in an interview with the Washington Post during Clinton's Senate trial in January 1999:
Prof. Dershowitz, this trial has been called both a legal and political proceeding. What do you see it as. And how do you regard yourself, as a legal or political actor?
Prof. Alan M. Dershowitz: None of the above. I think this is a constitutional proceeding that should not be legalistic, nor should it be crassly political. The central point is whether the allegations, if true, constitute treason, bribery or high crimes and misdemeanors.
To answer that question, we don't need testimony about who touched who where, but rather about the intent of the framers, the nature of our constitutional system and the criteria for removal of the president. This should not be a trial in the legal or political sense. It should be a great constitutional debate about the meaning of our system of checks and balances.
Since Clinton's misbehavior (giving false testimony to a grand jury about his relationship with Monica Lewinsky) did not have any relationship to his performance of his official duties, and wasn't even related to the case he was testifying in (it was Kenneth Starr's grand jury, which was supposed to be investigating the Whitewater land deal and had ended up investigating his relationship with Paula Jones instead), it could hardly be considered a "high" crime, and arguably wasn't a crime at all, not even "technically":
I am not a strong personal supporter of President Clinton [LOL, he's still using that]. I am a strong opponent of the misuse of the impeachment and removal power against him. I do not think he committed the technical crime of perjury, but nor do I think that he has shown himself to be an honest person.
In that, I guess, perjury is supposed to be when you tell a lie that's material to the matter you're testifying about, and this wasn't.
Were President Clinton to be removed, I believe this would be the first case in Anglo-American history of impeachment and removal of anyone, ever, for trying to cover up and even lying about a consensual sexual encounter. It would legitimate sexual McCarthyism and make sex a weapon in the political wars. The closest precedent we have is the House Judiciary Committee refusing to impeach President Nixon for committing perjury in his filing of a fraudulent tax return. Nixon's actions were closer to being governmental, since they involved the tax deductibility of government papers, but a bipartisan vote ruled that it was too close to the personal side to warrant impeachment.
Well put! And these are exactly the points he is skipping over in his defense of Trump: what Trump unarguably did in regard to the Zelenskyy government—and as we keep being told, there's no dispute on the facts—may or may not be a violation of this or that criminal statute, but it certainly involved the bending of US foreign policy to gratify Trump's personal urgencies, as Hamilton put it in Federalist 65,
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. 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. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
You can certainly argue that it's made up of statutory crimes (criminal bribery, wire fraud, obstruction of justice) anyway, as Schiff persuasively did last month, to say nothing of all kinds of plainly illegal "misdemeanors" like his retaliation against Maria Yovanovitch, for which any CEO in a US business could be fired, or the defiance of Congress in withholding Ukraine funds, recently declared illegal by the GAO, but nobody can argue that it isn't "criminal-like". It's as criminal-like as it gets.

No comments:

Post a Comment