Con Law 101
I spent yesterday listening to Alan Dershowitz lecture in the Trial of Donald Trump. As the youngest tenured law professor in Harvard University history, Dershowitz is a fifty-year veteran of law school classrooms. One consistent pattern of all law school pedagogy is to follow a legal principle to its logical extreme. It starts as a reasonable legal precept, like Presidents should legally act in the nation’s best interest. And that’s where Professor Dershowitz began.
But then he chased the idea to its extreme, reaching a point when he said that whatever a President does to get re-elected, that President believes it’s in the best interest of the country, so it’s legal. Anything he does. Dershowitz might have missed the blank check for any Presidential action he was promoting; but no one else in the room, not even his own legal compatriots, were willing to climb out on that limb.
In part of that slide to the extreme, Dershowitz mentioned Abraham Lincoln. He claims that the actions Lincoln took in the crisis of the Civil War were Constitutional, and if those were, certainly the “quid pro quo” action of Donald Trump was.
To Hell
I am now going to history “Hell”.
Abraham Lincoln is arguably our most revered leader. While George Washington established the process and structure of the Federal Government, it was Lincoln who established “the heart” of the American experiment. He didn’t allow legal structure or even long held traditions to prevent him from saving the Union. He did whatever he had to do.
It wasn’t legal. Abraham Lincoln violated the text and spirit of the US Constitution time and time again. When Dershowitz used Lincoln as an excuse for Trump, he made one mistake. Lincoln could have been impeached.
I know, your eighth grade history teacher never, ever, ever said that; even if it was me.
Violating the Constitution
But let’s look at what Lincoln did. In the first few weeks of his Presidency, he suspended the writ of habeas corpus in Maryland and summarily imprisoned a state government official. The US Army held John Merryman, a state legislator, imprisoned in Fort McHenry. Merryman’s attorney went to the Chief Justice of the Supreme Court, Roger Taney, for a writ of habeas corpus releasing him from custody. Taney granted the writ, but Lincoln defied the ruling and kept Merryman in jail.
This wasn’t the only action Lincoln took that could have resulted in impeachment. On a purely legal basis, the Civil War itself could be viewed as a huge expansion of Presidential power. But more specifically, Lincoln took property away from private citizens; property protected by the Supreme Court in Dred Scott v Sanford. We see it as a heroic measure in US History, the Emancipation Proclamation, but it clearly went against legal precedent.
It was never tested in Court, but Lincoln and the Congress recognized that it would not hold by itself. While Lincoln was no longer around after the Civil War, the Congress “post-dated” the action by passing the Thirteenth Amendment abolishing slavery throughout the nation.
Rigged Election
And finally to Professor Dershowitz’s story. Lincoln’s Secretary of War, Edwin Stanton, made no secret that he wanted the Army to support Lincoln for President against his popular Democratic opponent George McClellan in the election of 1864. Army units that were Republican were sent home to vote, those that were Democrat were faced with duty on the front lines. Army officers who spoke out for McClellan were actually dismissed from service. Cadets at the Military Academy at West Point, who attended a Democratic meeting, were forced to dig a live sewer line from the Superintendent’s home.
General Sherman complained that he needed the troops for battle, but Lincoln made it clear that their Republican votes were more important. As Professor Dershowitz pointed out, Lincoln saw his re-election as furthering the nation’s goals, and used the votes of his troops to get it done.
For the Union
Ok, stop writing that nasty comment on this post. I don’t think Lincoln should have been impeached. Lincoln defended the Union, and saw that as his highest calling, even above defending the Constitution. While he didn’t write the phrase, Lincoln did understand that the Constitution wasn’t a “suicide pact” that the nation should blindly follow into oblivion. He did what he needed to do to assure that “…government of the people, by the people, and for the people shall not perish from the earth”.
That doesn’t mean that Donald Trump should get a pass. Lincoln’s actions were in a moment of national extremis, when the very existence of the United States was at risk. Trump extorting Ukraine for “dirt” on Joe Biden can hardly be seen in the same light. And that’s the ultimate flaw in Professor Dershowitz’s analysis. We can’t compare today’s crisis to the Civil War.
But we certainly all can agree: Donald Trump is no Abraham Lincoln.
