Congress' Impeachment Power Should Not Go Unchecked

In our continued focus on Democrats who oppose impeachment, today we focus on famous lawyer and law professor Alan Dershowitz, who makes a strong case against impeachment, again.  We say again because he also wrote a book about the first quasi-impeachment effort which became the Mueller report.  Dershowitz details how Maxine Waters' interpretation of Congress' impeachment power is wrong and dangerous.

There are those like Congresswoman Maxine Waters who argue that Congress can impeach on any ground a majority wishes. “There is no law,” she has asserted, because then power to impeach is vested solely in the House and there is no judicial review of its actions. Even if that were true — and it is debatable —Waters’ lawless and reductionistic view confuses what Congress can get away with, as distinguished from what the Constitution obliges its members to do: namely to apply the criteria set out in the Constitution.

Democrats allegedly spent the weekend trying to decide on the grounds to impeach President Trump, either broadly or narrowly.  As Dershowitz further points out the original constitutional scholar, James Madison, feared just this sort of power grab by the legislature. 

James Madison, the father of our Constitution, feared that open ended criteria would result in a situation where the president served at the will of Congress, much as British prime ministers serve at the will of Parliament. He did not want our new republic to turn into a parliamentary democracy, in which the legislative branch is more powerful than the executive. Under our system of checks [and] balances, the president is not above the law, but neither is Congress.

A great example of Congress attempting to put itself above the law is the Democrats' often cited argument that the President is resisting subpoenas from Congress.  This argument is fallacious, as Dershowitz explains:

The president, as head of the executive branch, is entitled to challenge in court legislative subpoenas that demand material that may be subject to claims of privilege. He is also entitled to insist that the legislature obtain a court order before the executive branch complies. That is how checks and balances work. The president should not be impeached because he takes seriously our system of checks and balances. 

This is not just an academic point argued by law professors.  If Congress’ power to issue a subpoena goes unchecked, then a potential exists for an even worse era of McCarthyism than that of the 1950s. Dershowitz argues such power should not be available unchecked to a partisan Congress.

I came of age during the McCarthy era, when Congressional committees issued subpoenas to suspected Communists, fellow travelers and lawyers who represented left wing radicals. Civil libertarians challenged these subpoenas in court, sometimes winning, sometimes losing. But no liberal accused them of doing anything wrong by refusing to comply with Congressional subpoenas until and unless a court ordered them to comply. Now, however, anti-Trumpers are demanding impeachment for what they would have praised during the McCarthy era.

Thank you, Professor Dershowitz.  Impeachment should not be a partisan issue.  It is a shame that Democrats have made it one.