Alan Dershowitz's circular reasoning may have nullified his whole argument with some GOP senators: Ex-US attorney
Alan Dershowitz arguing in Trump’s impeachment hearing (screengrab)

Alan Dershowitz may have nullified his entire argument after Wednesday's question and answer session that sent the country into a collective fury.


A Washington Post editorial by former U.S. Attorney and law professor Harry Litman described Dershowitz's return a kind of seduction for the Senate GOP.

"Then Wednesday night he drove the car over the cliff, and arguably took himself out of relevance to the Senate’s decision-making," Litman wrote.

Monday, Dershowitz made an impassioned plea justifying President Donald Trump's actions because there is no such thing as an abuse of power, it's merely a political term used by opponents. Even if there was a case of an abuse of power, it doesn't rise to the level of an impeachable act, because a crime is needed to impeach.

“It does not make any difference at the end of the day, as Professor Dershowitz explained so well yesterday,” Litman quoted Rep. Mike Johnson (R-LA). “Abuse of power and obstruction of Congress are not impeachable offenses, and it doesn’t really matter what anybody says.”

He half-cited cases and pretended there was no precedent for non-criminal actions being part of an impeachment. As a former Judicial Committee Congresswoman pointed out, it flies in the face of President Richard Nixon's potential impeachment.

In that case, Nixon was approaching impeachment when he finally resigned. In that case, he approved the wiretapping of the Democratic Party and instructed his IRS to go after his political opponents with audits. Neither of those were considered crimes in the 1970s, but members of Congress then agreed that they were impeachable acts.

"The rationale — goofy as it was — offered the Senate Republicans a possible way out of the vise the president had put them in by repeatedly insisting that his conduct was 'perfect,'" Litman wrote. "After the avalanche of evidence from House impeachment managers showing Trump did precisely what they accused him of, Trump partisans needed some way to sidestep the facts. For several of them, the 'even if' argument that abuse of power and obstruction of Congress can’t give rise to impeachment seemed to do the trick."

And when Dershowitz gave a response to Sen. Ted Cruz (R-TX) that if the president believes it's in the public interest it isn't illegal, Litman wrote that it was the end game.

"Most concepts in criminal law have gray areas. Was the action done 'corruptly?' Was the confession 'voluntary?' Was the risk 'unreasonable?'" Litman used as examples.

"But that in no way shows that abuse of power cannot be an impeachable offense. On the contrary, it is the quintessential impeachable offense, and was uppermost in the Framers’ minds, after they experienced the erratic, abusive but not criminal conduct of mad King George. In the well-known words of Alexander Hamilton, 'the subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,'" he continued.

Under Dershowitz's rules, Litman explained that the people of the United States would have no recourse other than an election.

"Now that Dershowitz has fallen from favor with his self-inflicted wound, Republican senators hopefully will shy away from embracing his previous rationale, which while less incendiary is equally a prescription for tyranny," he closed.

Read the full editorial at the Washington Post.