Constitutional Law Blog Essay

The Dershowitz Attack on the Trump Articles of Impeachment is Weakened, Perhaps Fatally, by the Possibility That “Misdemeanors” Could Mean “Misconduct”

On Monday night, Alan Dershowitz addressed the Senate on behalf of President Donald Trump. At one point, Dershowitz asserted that “the key point in this impeachment case . . . is that purely non-criminal conduct, including abuse of power and obstruction of Congress, are outside the range of impeachable offenses.” However, elsewhere in his presentation he backed off this “key point,” saying the “main thrust” of his argument was that “even if criminal conduct were not required, the Framers of our Constitution implicitly rejected . . . such vague terms as ‘abuse of power’ and ‘obstruction of Congress’ as among . . . the criteria for impeaching a President” (emphasis added).

In an essay I published on Politico last Friday, I predicted, based on many of his prior statements, that Dershowitz would present the argument “without a crime there can be no impeachment” as a slam-dunk winner that would irrefutably establish that the Articles of Impeachment should be summarily dismissed without consideration of the evidence. A member of the New York Times editorial board opined that this anticipated argument was “almost certainly going to work” because it would give Republican Senators a fast and easy way to end the impeachment trial.

But instead, Dershowitz presented a comparatively tentative argument. It may be that Dershowitz was more tentative than expected because he had come to recognize that the inclusion of “misdemeanors” at the end of the impeachment clause might be a problem for his client. He said: “There is no disagreement over the conclusion that the words ‘treason, bribery or other high crimes’ – those words require criminal behavior. The debate is only over the words ‘and other misdemeanors.’”  However, having recognized that whether “other misdemeanors” in the impeachment clause requires criminal behavior is “debatable,” Dershowitz purported to resolve the debate in favor of the President by quoting this passage from Blackstone’sCommentaries: “crimes and misdemeanors . . . properly speaking, are mere synonymous terms.”

We should be interested in looking for additional evidence of how “misdemeanor” was used and understood in the Founding Era, other than this passage from Blackstone, if for no other reason than Dershowitz’s failure to explain why the drafters of the Constitution would bother to include “misdemeanors” in the impeachment clause if the word was a “mere synonym” of “crimes.” Is there a scientifically developed, reliable source of such evidence? The answer is yes.

Thanks to a newly established, very large, free-of-charge database of texts from when the Constitution was drafted and ratified, I have been able to find evidence that “misdemeanor” was sometimes used to mean something other than a type of crime.  The Corpus of Founding Era American English (“COFEA”) contains over 126,000 texts written in the period 1760–1799, totaling over 136 million words.

I have conducted a preliminary review of COFEA to test the “mere synonym” assertion. (I intend to conduct much more extensive research in collaboration with an academic linguist and a professional historian.) One finding was that “misdemeanor” could be used interchangeably with “misconduct” or “misbehavior.” Here are two examples:

A 1773 newspaper excerpt  from the papers of John Adams contained this quote: “if an office be granted to hold so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehaviour; for it hath an annexed condition to be forfeited upon misdemeanor, and this by law is annexed to all offices, they being trusts; and misdemeanors in an office is a breach of trust.

A 1796 state court decision from South Carolina stated: “[a judge] is liable for misdemeanors in office, and subject to impeachment for misconduct if he misbehaved.Alexander Brodie v. John Rutledge, Chief Justice of the State of South Carolina (Charleston District 1796)

Notably, these examples refer to misconduct in office.

A second piece of evidence comes from the proceedings of the Constitutional Convention.  The records of the critical debate between George Mason and James Madison on defining impeachable offenses strongly indicate an understanding of “misdemeanor” as having a different and broader meaning than “crimes.”

For an article forthcoming next month in the Georgia State Law Review, a research team that included five linguists, used COFEA’s search tools to find and analyze every time “case” or “cases” was mentioned in the records of the Constitutional Convention. (Our findings suggest that current standing doctrines may be based on an incorrect assumption that “cases” in Article III means “injured plaintiff litigation.”) We researched word usage from the convention debates not so much as evidence of what the drafters intended but, rather, to quote from a letter written by James Madison, “as presumptive evidence of the general understanding at the time of the language used.”

The following analysis of Convention records is likewise offered as “presumptive evidence” of how “misdemeanor” was understood at the time.

When, on September 8, 1787, Mason moved to add “maladministration” to the existing list of impeachable offenses: “Treason or Bribery,” Madison objected that “so vague a term [as maladministration] will be equivalent to a tenure during pleasure of the Senate.” Mason responded by withdrawing his motion and substituting “other high crimes and misdemeanors against the state.” Mason’s revised motion passed 8-3, thus adding “high crimes and misdemeanors” to the impeachment clause.

After Mason’s motion passed, Madison then argued (unsuccessfully) to change the venue for impeachment trials from the Senate to the Supreme Court, saying: “as he [the President] was to be impeached … for any act which might be called a misdemesnor [sic],” the President “under these circumstances was made improperly dependent” on the Senate. Much as Madison feared that the possibility of impeachment for “maladministration” could reduce a president to serving at the pleasure of the Senate, he apparently understood the alternate that had just been adopted as also making a president too “dependent” on the Senate if that body retained the power to conduct impeachment trials. Significantly, Madison made that argument referring only to “misdemeanor” with no mention of “crimes,” suggesting the two words were understood quite differently.  Further, in contrast to Dershowitz’s contention that Mason’s amendment was understood to be narrowly limited to “offenses against established law,”  Madison’s argument assumes a broad meaning of misdemeanor capable of flexible application: “any act which might be called a misdemesnor.”

Through Thursday of this week, Senators will have the opportunity to submit written questions to the House managers and counsel for the President. Closing arguments are expected to take place this Friday. Perhaps either during the period of Senator questioning or at closing argument the issue of whether abuse of power and obstruction of Congress – even if not crimes – could be well be considered as “misdemeanors” meaning “misconduct,” specifically misconduct in office, and thus provide the basis for impeachment and removal.