The Constitution, Abuse of Power, and “Technical Crime”

From the “pox on both your houses” school of political philosophy, let us address the issue of presidential abuse of power, specifically in light of the question, asked by many slaves of the Republican Party establishment (i.e., Trump supporters), as to whether such a charge, brought by Democrats, is anything but a partisan political ruse for “overturning an election.”

For some reason, the White House has chosen, as part of its impeachment defense of Donald Trump, to enlist Harvard fame whore Alan Dershowitz to argue that a president cannot be impeached without having committed a “technical crime,” as he called it twenty years ago, when his position was precisely the opposite of the one he is espousing today. 

Rather than getting lost in the head-spinning hypocrisy of Dershowitz’s “retraction” of past statements, or getting dragged into the weeds about the substance of his newly-minted claim that abuse of power, absent any “technical crime,” is never a legitimate grounds for impeachment (of anyone? or only presidents?), I think it more advisable to address the peculiar legalistic absurdity at the heart of this position.

The U.S. Constitution is the ultimate law of the land, the standard for determining the legitimacy of all other laws. Among other things, the specific role and limits of presidential power are spelled out definitively in that fundamental document. To abuse presidential power, then — which is what Trump is accused of, and what the House voted to impeach him for — can mean nothing, in practice, but to exceed or distort the limits and nature of presidential power, as defined in the Constitution. Hence, abuse of power, insofar as it is by definition a violation of constitutional authority, is a sort of crime, specifically a political crime, i.e., a violation of the political regime’s defining law.

The Constitution’s primary and most important function is to limit the powers of government, which it does both in letter and in spirit. Members of government who exceed or flout the letter or spirit of the Constitution are therefore violating the law of the land. All U.S. federal government today is in daily and continual violation of the Constitution, both in letter and (even more so) in spirit, i.e., in violation of the law of the land. To the extent, then, that any individual member of the U.S. Federal Government, especially the elected members of the executive or legislative branches, or the appointed members of the judicial branch, actively supports and perpetuates these ongoing constitutional violations — such as by voting for (or neglecting to combat?) legislation, spending, and federal programs that are fundamentally anti-republican in character and effect, and thus can only serve to undermine the system of limited government defined in the Constitution — that member is personally, like the government taken collectively, in violation of the law of the land. That is to say, such members (all or nearly all today, of course) are guilty of the “technical crime,” as it were, of violating the limits on federal government power as defined in the nation’s highest and ultimate law.

From this it follows that the senate impeachment trial of Donald Trump is effectively a case of frauds and embezzlers sitting in judgment of another’s dishonorable behavior. The accused in this case may well be guilty, but Trump can at least claim ignorance of the law — in fact, there is little doubt he is ignorant of the law — whereas his jurors, on either side of the aisle, have no such defense.

That the Democrats — progressive authoritarians one and all — have impeached Trump for “abuse of power,” and seek to remove him from office as a danger to the constitutional republic, is, given their own intentions and actions, a monumental outrage against American self-government.

That the Republicans are setting themselves up as defenders of “the will of the people” and constitutional rectitude, while actively supporting and abetting arguably the most blatant fraud ever perpetrated (successfully at least) against the American voter, is, given their own intentions and actions, an outrageous monument to the effects of a century of compulsory government-regulated schooling.

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