On the eve of Donald Trump’s Senate impeachment trial, the president’s legal defense team began peddling a new and provocative claim: presidential abuses of power are not impeachable offenses. They made this argument in writing, and even took the pitch to the public in television interviews.
Alan Dershowitz, a member of the president’s legal defense team, told ABC News’ George Stephanopoulos on Sunday that the House vote “was to impeach on abuse of power, which is not within the constitutional criteria for impeachment.”
It was new legal ground. As far as Trump’s lawyers are concerned, presidents who are caught abusing their powers cannot face congressional accountability, unless they commit statutory crimes. In the case of the Ukraine scandal, the Republican’s legal team believes Trump’s guilt, for all intents and purposes, is irrelevant — because even if every allegation is true, Congress lacks the authority to punish abuses of power.
After Team Trump made the pitch, the New York Times reported on the legal consensus among scholars who believe the president’s lawyers have it backwards. The article quoted University of Missouri law professor Frank O. Bowman, the author of a recent book on the topic, who told the Times the argument is “constitutional nonsense.”
But it’s not just scholars who’ve reached this conclusion. As recently as two years ago, Attorney General Bill Barr, before joining the administration, said the same thing in a memo for the Justice Department and the president’s attorneys.
Mr. Trump should not talk to investigators about his actions as president, even under a subpoena, Mr. Barr wrote in his 19-page memo, which became public during his confirmation. Mr. Barr based his advice on a sweeping theory of executive power under which obstruction of justice laws do not apply to presidents, even if they misuse their authority over the Justice Department to block investigations into themselves or their associates for corrupt reasons.
But Mr. Barr tempered his theory with a reassurance. Even without the possibility of criminal penalties, he wrote, a check is in place on presidents who abuse their discretionary power to control the executive branch of government — impeachment.
Complicating matters, George Washington University law professor Jonathan Turley — the Republicans’ witness during the House impeachment proceedings — wrote a Washington Post op-ed also rejecting Team Trump’s radical assertion.
When Team Trump peddles a bizarre claim that even Barr and Turley don’t accept, it should give Senate Republicans pause when weighing the president’s fate.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."