Alan Dershowitz as a messenger

Sandy Levinson

It is a cliche that it is often easier to slay messengers whose messages we find repugnant than to address who is sending the messages in the first place.  So it is, I think, in some very real way with Alan Dershowitz, who is the subject of much ridicule and opprobrium for his defense of Donald Trump. Don't get me wrong:  I have denounced Dershowitz's substantive arguments as "preposterous" and have signed a marvelous letter drafted by Georgetown Prof. John Mikhail demonstrating exactly why they fail.  But that is, in some way, beside the point with regard to understanding the critique leveled at Dershowitz and understanding the importance of his conduct.  (Full disclosure:  I have known him since 1971, and we have been sometime colleagues at the Harvard Law School.  He has always been very friendly to me.)

First, does his argument about the meaning of the Impeachment Clause violate Rule 11 of the Federal Rules of Civil Procedure:  I.e., is it "frivolous"?  The answer is not really, for a simple reason:  In terms of what Philip Bobbitt has labeled the "modalities" of constitutional argument, Dershowitz is focusing relentlessly on one of them, "textualism," which relies for its strength on a naive approach to language that can be summarized by "what meaning of 'no' do you not understand?"  Or, as with Chevron, it requires persuading the reader that language is either clear and unambiguous or open to interpretation and reinterpretation.  The argument, therefore, is that the Impeachment Clause, read by the ordinary person (including US Senators) clearly seems to suggest that a president must commit either bribery or treason or "other High Crimes and Misdemeanors" that are in some genuine way comparable to those clear crimes.  The authors of the Constitution could have substituted other words and they obviously did not do so.  Is the language self-evident in its meaning?  No, but law professors teach their impressionable students certain "canons of construction" with regard to texts that need to be "filled in" that make Dershowitz's reading non-frivolous.  To be sure, he veers away from textual interpretation to include some historical arguments as well.  It is there, I believe, that he is demonstrably and unequivocally wrong, as demonstrated by Mikhail, Laurence Tribe, Noah Feldman, Frank Bowman, and others.  But so long as one relentlessly sticks to text and makes what I have in much other work called "protestant" appeals to sola scriptura, then one cannot, alas, simply dismiss Dershowitz's argument out of hand.  What one should do, instead, is to criticize a form of "textualism" that leads one to accept even "absurd" results in order to prove one's fidelity to the text.  It is worth noting that Antonin Scalia's most enduring legacy, at this point, is his insistence on the importance of text, and it is worth noting as well that the most able defender of textualism in the legal academy is the current Dean of the Harvard Law School, John Manning.  One of his predecessors, Elena Kagan, has herself paid ample attention to texts, unlike an earlier generation (perhaps typified more by her colleague Steven Breyer, who looked at "purpose" and was therefore much less likely to feel confined by "literal" interpretation).   What Dershowitz as messenger is revealing is first that the Framers really did a remarkably bad job in drafting the Impeachment Clause.  I.e., I have no doubt at all that Baldwin et al. are completely correct in what the Framers thought they were doing (a kind of "original intent" argument), but in their zeal to get out of Philadelphia (and after their thoroughly regrettable rejection of George Mason's suggestion to make "maladministration" a ground for impeachment), they adopted language that, to be sure, might have had a "term of art" meaning to well-educated lawyers (however many there actually were at the time in America, given that many such lawyers rejected the arguments for secession and remained loyal to their Majesty King George III).  Contrary to Charles Black, the Impeachment Clause was not the product or sustained debate and thought.  And things weren't helped, of course, by the fact that any discussion was completely abstract, given that everyone knew that George Washington, with his absolutely Roman character of selflessness (save, of course, where slaves were concerned, at least during his lifetime) would not present a threat to the Republic.  And, equally "of course," they had the deluded belief that the Electoral College would serve as an effective line of defense against electing a demagogue who might make impeachment a necessity.  So instead of condemning Dershowitz for making a relentlessly textualist argument, one should instead condemn the Framers for so ineptly drafting an Impeachment Clause that turns out--this is a "lesson of experience" that they counseled us to learn from--to be a genuine danger rather than source of protection to the Republic that they hoped to create and maintain.  And, incidentally, one should certainly feel free to go on to criticize an obsession with text that does indeed justify a reckless indifference to consequences and even licenses "absurd" consequences.

Secondly, Dershowitz, from one perspective, is simply acting in the highest traditions of the "zealous" defense attorney, where, after all, he earned his justifiable fame and perhaps even fortune.  I believe his great mistake is to confuse impeachment with a criminal trial.  Were Trump charged with a criminal offense and threatened with jail, I would have no criticism of Dershowitz or any other defense attorney putting the state to its full measure of proof.  And I would have no hesitation to applaud his making a "void for vagueness" argument with regard to the almost opaque Impeachment Clause (unless one restricts it, as Dershowitz argued, to what everyone might agree would be "High Crimes and Misdemeanors" punishable as such in the statute books).  My most important teacher at Stanford was the great Anthony Amsterdam, who wrote a classic student note on the void for vagueness doctrine in the US Supreme Court and who pointed out that a fundamental norm of due process is that people actually know in advance what kind of conduct will make them liable to lose their freedom.  But, as I've argued several times before, impeachment ought not be analogized AT ALL to a criminal trial.  It is a means of disciplining an unusually important public employee whom we have reason to be suspicious of.  Just as the law in its majesty doesn't regard deportation as a punishment--you can look it up--so it should not regard loss of a job as the kind of punishment that justifies Alan Dershowitz or any other criminal defense attorney from pulling out all stops to defend a client.  Any president, like any basketball coach, should know that "abuse of power," as defined by the onlooking interpretive community, will get one fired even if, to be sure, there is no codebook that details every possible such abuse and thus frees the employee for any liability for conduct not mentioned in the code.  This, after al, is what Marshall was getting at in McCulloch when he referred to the U.S. Constitution as a "great outline."  That means we have the duty of filling it in, using our common sense and "lessons of experience" to do so.  It was there that Dershowitz's argument was so problematic.

Dershowitz comes from a tradition of criminal defense lawyers that quotes with pride Lord Brougham's statement in 1821, regarding his in effect threatening to bring down the monarchy in order to protect his client, Queen Caroline, from whom the King sought an annulment:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.  To save that client by all means and expedition, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torment, the destruction which he may bring upon others.  Separating they duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion. 

This is Alan Dershowitz's credo, and I dare say that it has been taught by many law professors over the years, especially to students who imagine themselves defending the unpopular.  (I taught a course on professional responsibility, by choice, for about 20 years, including once at Harvard.  It is a telling criticism of law schools, students, and faculties, that it is generally not a high-status course; this is one of the reasons, ironically enough, that most law schools (though not Yale) require it, because students would rarely take it voluntarily.  My own view is that it's the single most important course in the curriculum, not least because it is also the most emotionally draining if taught with the requisite degree of seriousness and intensity.  I used to begin my course with Plato's Gorgias, about the ethics of teaching rhetoric and how to make "the lesser appear the greater."

Now it's possible that Dershowitz actually supports Trump and believes that it is good for the country that he remain president.  That is an open question; he has noted that he voted for Clinton in 2016 and has carefully refrained from offering any show of support to Trump in this year's election.  For whatever reason, he chose to represent Trump before the Senate, and he did so with the same kind of zealous vigor that he represented prior clients, some of them notorious (think only of OJ, some of them unknown figures who were in fact the victims of zealous unfair prosectors.  He has notably questioned the degree to which one should automatically trust local prosecutors, let alone police who have incentive to lie and who are often in effect excused by prosecution-friendly local judges.  I suspect that both of us believe that a serious weakness of the contemporary Supreme Court is that there is not a single member who has ever visited a client in jail, nor is that likely to change even if a Democrat wins in November.  Barack Obama did not really go outside the box in selecting judicial nominees, though one or two former public defenders managed to get on the "inferior" federal bench.  (Not the least of the paradoxes of the present time is that political liberals have fallen in love with federal prosecutors, ex-FBI and -CIA directors, while Trumpistas are denouncing them!)  So the real question is this:  Is there any reason to select out Alan Dershowitz for criticism that doesn't apply, perhaps more deeply and fundamentally, to any and all of the lawyers who appeared before the Senate to defend their master?  Dershowitz carefully sequestered himself from the discussion about witnesses, nor did he give a campaign speech for Donald Trump.  Nor, I am confident, does he share the basically fascistic views of Attorney General William Barr.

Ironically or not, perhaps one difference between Dershowitz and the Trumpista lawyers is that the latter sincerely believe they're serving the country by trying to keep the individual, Donald J. Trump, in power because he's Making America Great Again, whereas Dershowitz is "merely" behaving in the traditions of the zealous advocate and attempting, perhaps, to vindicate a notion of the Constitution that makes it especially difficult to displace a president by impeachment.  I have noted that Charles Black begins his book with excessive veneration of the Office of the President and goes on to suggest that it should indeed not be easy to fire a president.  Laurence Tribe agrees in the book that he has co-authored on impeachment.  Ditto Cass Sundstein and Michael Gerhardt.  I have become the outlier in believing that we ought to adopt a considerably more disenchanted view of all presidents and, like Ross Perot, view them merely as our employees who can be fired (or, at least, be suspended) as easily as a football coach or other high-flying executive who is usually given way too much deference.

Alan Dershowitz's performance does indeed raise a lot of questions.  And his particular statement that a sincere belief that one's re-election would serve the public interest would be enough to justify almost any corrupt behavior that was not an absolute liability crime per so is ridiculous beyond belief.  (I believe that he has tried to walk back from that assertion.)  But the main point is that his zealous advocacy in behalf of his client raises significant questions about whether we should really continue to regard the Constitution as a model of careful drafting--the answer is hell, no--or be untroubled by a seeming indifference to the social consequences of one's legal argument at least outside the very specific context of a criminal trial threatening the client's liberty.  Alan Dershowitz has performed a public service in placing both questions before us.
Posted 2:48 PM by Sandy Levinson [link]