When did people start talking about an ice cream flavor called Peach Mint? It was either the first Trump impeachment, or maybe it was the Clinton peach mint. I am not sure. In any event……

As I said yesterday, I unexpectedly picked up and read a 2018 book by retired Harvard Law Professor Alan Dershowitz, titled The Case Against Impeaching Trump. As you can tell from the publication date (if you are smarter than I was), when the book was published, the first impeachment of Trump was under discussion, but had not yet been accomplished, so this is not an analysis of “what happened”, but a warning of what should not be happening. And, by the way, I decided to read this book not to learn more about the Trump impeachment, but about the impeachment of Alejandro Mayorkas, Biden’s Homeland Security Secretary, and the potential impeachment of Biden himself.

Dershowtiz describes himself as follows: a civil libertarian, a liberal, one who does not like Donald Trump, one who thinks that constitutional questions should not be decided on a partisan basis, one who was a strong supporter of both Barack Obama and Hillary Clinton. He prides himself on his consistency (over a 50 year period) looking at the question of impeachment. He is a former Board member of the ACLU, and believes that the ACLU has changed from an organization dedicated to civil liberties, to one knee-jerk supporting Democratic candidates, and he abhors the change. He is also saddened, he says, that so many friends have turned against him because of his nonpartisan views on impeachment and other constitutional issues, and time and again he contrasts his views with those of his fellow faculty friend, Lawrence Tribe (whom you can see often on MSNBC).

Dershowitz’s views are straightforward. The Constitution gives the House the right to impeach someone who has committed high crimes and misdemeanors, and the only high crimes mentioned are treason and bribery. He says that these are limitations written into the constitution and cannot be expanded, and although what specific crimes may be high or may be misdemeanors, you can’t turn actions that are not crimes into crimes for the purpose of impeachment. He says that those legal scholars who think that you can, who take a more expansionist view of impeachment, are wrong, even though he concedes they may be in the majority.

Specifically, he says that you cannot impeach a federal officer (President or otherwise) for making bad policy decisions, or for performing their job poorly. And he says you cannot impeach someone for acting within their constitutional authority, no matter how dumb an act they may undertake, or how harmful.

For example, he says that there is no crime in a presidential campaign colluding with a foreign government, as dangerous and unpatriotic as it may be. There is a crime, he says, in a foreign government making financial contributions to a campaign, but not to a campaign simply working with a foreign government, or even pressuring a foreign government, to dig up dirt on an opponent (as Trump did with Ukraine).

Taking the opposite position is, in his view, simply putting politics over the Constitution. And he cites various authorities who say exactly this – that impeachment is a political action, and whatever the politicians in the House decide to use as the basis for impeachment is all right. Dershowitz argues strongly against this.

Therefore, I am sure he would conclude that the impeachment of Mayorkas was totally improper, and he would say that he would reach this conclusion not because of political considerations, but because of constitutional considerations. Now, I have not heard Dershowitz say anything about Mayorkas (although I bet he has), but I have wondered about the Mayorkas impeachemnt, and about what the Senate is going to do about an impeachment trial. My thought was that the House impeached Mayorkas strictly on a partisan basis, not alleging any crime that Mayorkas committed (much less one that might reach constitutional levels). I think that the Senate can just ignore the impeachment, and not hold any trial whatsoever. Why have a trial on an impeachment if you believe the impeachment is not a valid impeachment? By the way, I haven’t heard anyone suggest this, although clearly the Senate is not moving ahead very quickly (or at all?).

Finally, I must say that this book (which I am sure was rushed to print) is a bit deceptive. The entire book is only 146 pages long, and the essay on impeachment (in spite of the book’s title) is only 28 pages long. The remainder of the book is filled with short essays that Dershowitz has had published in various places over several years, dealing with other constitutional/political questions.

These include (1) the impossibility of judging a president’s “corrupt intentions”, (2) the built-in conflict of interest having an Attorney General whose tasks include both being the head of federal criminal prosecutions and the administration’s top lawyer (he says that in most countries, the prosecution job is a separate one, totally independent of politics), (3) the phenomena of jury shopping (the example being Robert Mueller’s decision to impanel a grand jury in DC, in addition to the one already impaneled in Virginia), (4) the dangers of raiding lawyers’ offices (thinking specifically of Michael Cohen, who had not yet “flipped”) and the potential withering of the attorney-client privilege, which Dershowitz believes should be strengthened), and (5) the unknown question of whether a president can pardon himself. He condemns Trump for his comments after the Charlottesville riots, and he believes that the appointment of a Special Counsel to look at the Trump/Russia connection was incorrect and that it would have been more properly the job of an independent investigatory commission, not a prosecutor.

And as to Trump’s claim of complete presidential immunity (obviously not made at the time the book was written), I believe he would laugh it off completely, and would look at the issue the same way he looks at impeachment. If the President is acting within his capacity as president, he is immune from prosecution in spite of making outrageous or dangerous decisions or having “corrupt intent”. On the other hand, if the President is breaking the law with regard to an action not part of his presidential duties, he is – like anyone else – subject to the law. I don’t think the issue of whether a President could be prosecuted while in office was covered in the book, and I’d be interested in how Dershowitz would respond to that possibility.

So this little book turned out to be a gold mine of thoughts on the Constitution and the Presidency. And – as I said – all in 144 pages.