The president's defense, Donald Trump, in the current political trial against him is partially based on an argument used during the impeachment process of former president Andrew Johnson over 150 years ago : there must be a crime for the impeachment process. But most jurists do not match that premise, including one that expressed arguments contrary to impeachment .
A Johnson lawyer argued in his initial statement to the Senate that the then president could not be dismissed because he was not guilty of any crime . Johnson was acquitted by difference of a single vote.
One of Trump's lawyers, Alan Dershowitz, said that same argument will be fundamental in the constitutional defense he will make of the president: there must be "criminal conduct" for there to be a political trial.
The idea could be attractive to Republicans, who seek a legal basis to absolve Trump of the charges attributed to him (abuse of power and obstruction of Congress).
However, jurists rebut the idea that the Founding Fathers intended that, in order to give way to a dismissal process, it was necessary to present evidence of a crime. Historians also doubt that the argument of Johnson's lawyer, Benjamin Robbins Curtis, has been decisive in ensuring the president's exoneration, achieved by a narrow margin.
"This is a way in which history is used as a weapon and is distorted to give weight to these types of allegations," said Rachel Shelden, a history professor at Penn State University and a specialist in the Civil War era. "It is a way of trying to promote a false understanding of the political judgment against Johnson, based on what historians now believe."
The point in controversy is the criteria of the Constitution to specify the political trial: "treason, bribery or other major and minor crimes." Over the centuries, the understanding is that the threshold includes real crimes - there have been judges subject to impeachment for sexual abuse or for asking for bribes , among other infractions - but also improper non-criminal behaviors such as being drunk on the stand. or favoritism in the appointment of bankruptcy trustees.
Why was Johnson subjected to a political trial?
Johnson, who underwent impeachment after being accused of violating the Law on the Exercise of Charge, which prohibited presidents from firing certain officials without Senate approval, because he dismissed the Secretary of War, Edwin Stanton.
Johnson's defense questioned the constitutionality of that law, now extinct. During the political trial in 1868, one of the president's attorneys stated in his initial argument that a meritorious lack of a political trial "refers to, and only includes, serious criminal offenses against the United States."
"There can be no crime, there can be no fault without a law, written or unwritten, express or implied," said Curtis, former minister of the Supreme Court. "There must be some law; otherwise there is no crime. My interpretation of this is that the words 'serious crimes and offenses' imply 'violations against the laws of the United States,'" he added.
Trump's defense plans
Trump's lawyer Alan Dershowitz, who plans to make a constitutional presentation to the Senate in a few days, told CNN on Sunday that he will paraphrase Curtis's argument. That is, it will support the thesis that "the editors of the Constitution conceived that the meritorious conduct of a dismissal process is only criminal conduct or prohibited by criminal law."
Alan Dershowitz, Trump's lawyer. Credit: AP
"That argument prevailed . Being a lawyer in the president's defense team, I will use it against the political trial. It is my role. It is very clear. I have done it before," Dershowitz said.
Republican senators could welcome the argument. One of them, John Cornyn, told reporters on Wednesday that anyone who weighs an imputation has the right to know which law or criterion is accused of having violated.
"I think this idea is very dangerous that abuse of power can be used as a box of surprises to put into it all political, political or personal claims," Cornym said.
Hard criticism of this defensive design
However, jurists and Democrats reject the assertion that a fault that leads to a political trial should be a criminal offense.
Frank Bowman, a law professor at the University of Missouri and a former Dershowitz alumnus at Harvard Law School, said that argument is " junk ." Jonathan Turley, a law professor at George Washington University, who presented arguments against the political trial in the House of Representatives, wrote on Wednesday in The Washington Post that this argument was politically imprudent and constitutionally myopic.
"They had to get out of the sphere of constitutional lawyers and academics to go to a criminal law lawyer to make that argument, because no prestigious expert in constitutional law would do it," said Representative Adam Schiff, president of the Intelligence Commission of the House of Representatives. Schiff is one of seven Democrats who serve as prosecutors in the political trial.
Even Trump's secretary of justice, William Barr, wrote in June 2018 in a memorandum - before he was proposed to the office of cabinet - that Congress can put the presidents who have committed abuse of power to a political trial.
Democrats say Trump's abuse of power, who allegedly pressured Ukraine to investigate Joe Biden, the Democratic rival of the president, while his government withheld millions of dollars in military assistance to that country is "an archetypal fault for a political trial. ".
Democratic senators attend Thursday's session of the political trial against Trump in the Senate, in an artistic representation. Credit: AP
Likewise, they maintain that the Founding Fathers intentionally created a flexible criterion of bad actions that could result in a dismissal process and that Trump's actions in this case constitute the " worst nightmare " for the editors of the Constitution.
So Johnson avoided the impeachment, according to historians
Historians also point out multiple reasons for Johnson's exoneration and are skeptical about the possibility that the senators at that time would have considered Curtis' arguments to be persuasive.
If Johnson had been dismissed, he would have been temporarily replaced by Benjamin Wade, the president of the Senate, a radical Republican who did not have the favor of other more conservative Republicans.
Johnson and his allies worked to guarantee senators that if they voted to acquit him, he would stop interfering in the Reconstruction after the Civil War. In addition, there is some agreement among historians that the senator who voted decisively against the dismissal was bribed .
Edited by Francesco Rodella with information from AP.