As I predicted when Democrats sought to impeach then-President Donald Trump on unconstitutional grounds, conservative Republicans are planning to try the same unconstitutional gambit if and when they take control of the House of Representatives. It has now been reported that efforts are underway to begin this process.
Rep. Bob Good (R-Va.) has announced: "I have consistently said that President Biden should be impeached for opening our borders and making Americans less safe." Extremist Rep. Marjorie Taylor Greene (R-Ga.) has said through a spokesperson that Joe Biden should have been impeached "as soon as he was sworn in." There are currently several resolutions that have been filed calling for Biden's impeachment on various grounds—none of them constitutional. If and when Republicans gain control of the house, these and other resolutions are likely to be taken up. They are also planning to impeach several cabinet members on unconstitutional grounds.
This was Alexander Hamilton's worst nightmare: that the power to impeach would be weaponized by the party that controls the legislative branch. Here is what Hamilton wrote in The Federalist Papers: [Impeachment]
"will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the demonstrations of innocence or guilt."
To prevent that abuse the Framers limited the grounds for impeachment to treason, bribery or other high crimes and misdemeanors—not policy differences or even claims of abuse of power or maladministration. But now the criteria seem to be: "because we can"—because we have the votes, regardless of the constitutional criteria.
Both parties are at fault, and they are now playing tit for tat. But two constitutional wrongs do not make a constitutional right. The improper impeachment of Biden should not be used to avenge the improper impeachments of Donald Trump, any more than the impeachments of Donald Trump should have been used to avenge the improper impeachment of Bill Clinton.
The power to impeach a president was extensively debated at the Constitutional Convention. Some argued that there should be no such power. Others argued that it should be broad and include "maladministration." James Madison, the Father of our Constitution, rejected both extremes, the latter because he did not want the president to serve at the pleasure of the legislature. The result was a compromise which permitted impeachment but only for criminal-type behavior akin to treason and bribery—two of the most serious high crimes.
Impeachment of a president was voted only once in the first two centuries of our nation's history. It was regarded as an extreme measure to be used only in cases of real criminality. Now it has become trivialized by both parties in their efforts to gain temporary political advantage, while neglecting the long-term implications for democracy.
I have stood against all such abuse of the Constitution by both parties. In doing so I have stood nearly alone. For the most part, Democrats have favored the impeachment of Republications and the Republications have favored the impeachment of Democrats —without regard to the Constitutional criteria. I have opposed all efforts to impeach American presidents, except for Richard Nixon, who resigned under threat of impeachment and removal. Nixon's removal was sought by both parties. He resigned only after Republican leaders told him they would support his impeachment and conviction. That is how it should be. Impeaching a president should receive bi-partisan support lest it become a bi-partisan weapon as it is becoming now.
So, if Biden were to be impeached, I would defend him with the same vigor with which I defended Trump against an unconstitutional impeachment. Republicans will hate me for this, and Democrats will approve—the exact opposite of how each reacted to my constitutional defense of Trump.
I hope and pray that it will not come to that. Cooler heads among Republican leaders should prevail, as they did not among Democratic leaders in the Trump impeachment or among Republican leaders in the Clinton impeachment. The model should be the proper removal of Richard Nixon for his extensive involvement in serious criminal activities. That standard was not met with Trump, it is not met with Biden.
Alan M. Dershowitz is the Harvard Law School Felix Frankfurter Professor of Law, emeritus. He is the author, most recently, of The Price of Principle: Why Integrity Is Worth the Consequences. Follow him on Twitter: @AlanDersh. His new podcast, "The Dershow," is available on Spotify, YouTube, and iTunes. Also: Dersh.Substack.com.
The views expressed in this article are the author's own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
