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\u2019s best interest. And that\u2019s where Professor Dershowitz began. <\/p>\n\n\n\n
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\u2019s in the best interest of the country, so it\u2019s 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.<\/p>\n\n\n\n
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 \u201cquid pro quo\u201d action of Donald Trump was. <\/p>\n\n\n\n
I am now going to history \u201cHell\u201d. <\/p>\n\n\n\n
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 \u201cthe heart\u201d of the American experiment. He didn\u2019t allow legal structure or even long held traditions to prevent him from saving the Union. He did whatever he had to do.<\/p>\n\n\n\n
It wasn\u2019t 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.<\/p>\n\n\n\n
I know, your eighth grade history teacher never, ever, ever said that; even if it was me.<\/p>\n\n\n\n
But let\u2019s 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\u2019s 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.<\/p>\n\n\n\n
This wasn\u2019t 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. <\/em>We see it as a heroic measure in US History, the Emancipation Proclamation, but it clearly went against legal precedent.<\/p>\n\n\n\n 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 \u201cpost-dated\u201d the action by passing the Thirteenth Amendment abolishing slavery throughout the nation. <\/p>\n\n\n\n And finally to Professor Dershowitz\u2019s story. Lincoln\u2019s 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\u2019s home. <\/p>\n\n\n\n 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\u2019s goals, and used the votes of his troops to get it done.<\/p>\n\n\n\n Ok, stop writing that nasty comment on this post. I don\u2019t 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\u2019t write the phrase, Lincoln did understand that the Constitution wasn\u2019t a \u201csuicide pact\u201d that the nation should blindly follow into oblivion. He did what he needed to do to assure that \u201c\u2026government of the people, by the people, and for the people shall not perish from the earth\u201d.<\/p>\n\n\n\n That doesn\u2019t mean that Donald Trump should get a pass. Lincoln\u2019s actions were in a moment of national extremis, when the very existence of the United States was at risk. Trump extorting Ukraine for \u201cdirt\u201d on Joe Biden can hardly be seen in the same light. And that\u2019s the ultimate flaw in Professor Dershowitz\u2019s analysis. We can\u2019t compare today\u2019s crisis to the Civil War. <\/p>\n\n\n\n But we certainly all can agree: Donald Trump is no Abraham Lincoln.<\/p>\n","protected":false},"excerpt":{"rendered":"Rigged Election<\/h3>\n\n\n\n
For the Union<\/h3>\n\n\n\n