- President Donald Trump’s legal team will argue on the opening day of his impeachment trial on Tuesday that the charges against him should be dismissed.
- Their argument is that the framers of the US Constitution believed a president could be removed from office only after being found guilty of a crime – and that neither charge against Trump is an actual crime.
- Constitutional experts said that they were baffled by the argument and that there was a mountain of evidence that the framers intended removal from office to be a punishment for broader abuses of power.
- Visit Business Insider’s homepage for more stories.
President Donald Trump’s lawyers recently revealed the central argument they will use to defend him at the opening of his impeachment trial on Tuesday.
It’s an argument that top attorneys and constitutional experts have said has a very shaken foundation.
Trump’s defense team is pushing for the Senate to dismiss the charges against him. His lawyers argued in a brief over the weekend that impeachment investigators had failed “to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.”
The argument would neatly sidestep a need to rebut the evidence that Trump sought an investigation from a foreign power intended to damage a domestic rival, and it could mean that potentially damaging testimony from witnesses such as the former national security adviser John Bolton would not need to be heard.
Trump's attorney Alan Dershowitz told ABC News on Sunday that in framing the Constitution, the Founding Fathers specified that only if a president commits a crime can they be removed from office.
The president's team will argue that because the charges the House of Representatives impeached him on in December - abuse of power and obstruction of Congress - aren't crimes, even if Trump committed them he can't be removed from office.
The argument centers on the meaning of "treason, bribery, or other high crimes and misdemeanors" as laid out in the Constitution as the basis for impeachment.
Constitutional experts said the defense was contradicted by decades of analysis of the Constitution and its meaning. They argued that there was plenty of reason to believe that the Founding Fathers had in mind a broad range of offenses that could be just as serious as the crimes found in the statute books.
Frank O. Bowman III, a University of Missouri law professor who wrote a book on impeachment, described the argument of the president's legal team to The New York Times as "constitutional nonsense."
"The almost universal consensus - in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since - has been that criminal conduct is not required for impeachment," he told The Times.
Others pointed to a key quote by Alexander Hamilton in the Federalist Papers spelling out the distinctly political nature of the offenses that could result in a president's removal from office.
"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," Hamilton wrote in 1788. "They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself."
Democrats say that Trump's use of his office to push a foreign power to launch an investigation into a political rival would certainly constitute the kind of misconduct spelled out by Hamilton.
But members of Trump's legal team disagree and say that the first presidential impeachment trial, in 1868, set the precedent for the kind of offenses that can result in removal from office.
Back then, President Andrew Johnson narrowly avoided removal from office after his counsel argued that he hadn't committed any actual crimes - and in an interview on CNN's "State of the Union" on Sunday, Dershowitz said Trump's legal team would mirror that defense.
"That argument prevailed," said Dershowitz, a professor emeritus at Harvard Law School. "I will be making that argument as a lawyer on behalf of the president's defense team against impeachment."
- Read more:
- Trump's Russia adviser was escorted from the White House after 2 months on the job, as part of a mysterious security probe
- Trump reportedly picked his impeachment defense team based on how well he thinks they can perform on TV
- The White House called the Democrats' impeachment case against Trump a 'dangerous attack' in its first formal response