Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
[Regarding this story: Constitutional Crabgrass: President Trump’s Defenders Distort the Impeachment Clause]
Yesterday I spent a few paragraphs deconstructing Alan Dershowitz’s argument (which he’s expected to make next week on the Senate floor) that “high crimes and misdemeanors” requires “criminal-like conduct,” whatever that’s supposed to mean it’s a term and standard Dershowitz simply made up that has no Constitutional support.
The article linked above is a more thorough dissection, easily dismissing not just Dershowitz but the Trump team’s brief, which relies on arguments rooted in English common law (specifically William Blackstone), which I guess isn’t surprising given the United States’ Constitution’s lack of support.
In short, the brief starts off by asserting that the “Framers restricted impeachment to specific offenses against ‘already known and established law,'” and footnotes that to Blackstone’s Commentaries on the Laws of England. The Just Security article demonstrates how Blackstone’s phrase had a particular meaning for his time and place (it didn’t mean “statutes”) and isn’t easily transferable to 1789 in America.
But more importantly, there’s no evidence that the Framers saw impeachment through Blackstone’s phrase at all. The brief just draws a line between the two on its own. It’s true that Blackstone is a huge influence on US law and the framers, but arbitrarily connecting the two isn’t sound legal analysis.
But pinning their argument on Blackstone is also interesting inasmuch as the conservative legal-sphere likes to think of themselves as “Constitutional Originalists,” and here they are filing a brief filled with foreign law sources, which resorts to discerning meaning from legislative history, and which invents from whole cloth numerous legal thresholds (e.g., an impeachable offenses must rest on violation of established law) that are contradicted by everything else we know to be true and that has happened in real life.
We have no shortage of of written history as to what the framers considered high crimes and misdemeanors, but Dershowitz and the Trump team are distending Blackstone because that United States’ history on this subject isn’t good for them.
The Trump team’s brief is here.
This is basically a preview of all the arguments they’ll be making beginning Saturday.
It’s worth noting that the arguments are also just wrong on their face. You can spot outright fabrications even in the table of contents. If this wasn’t an almost purely political process, allowing the Trump team to fearlessly spout nonsense, some of these arguments are practically sanctionable under FRCP Rule 11.
