Those calls to impeach Biden: As wrong as they were with Trump

As I predicted when I defended President Trump against being impeached for “abuse of power,” some Republicans are now using this unconstitutional precedent to urge the impeachment of President Biden for his actions (and inactions) with regard to Afghanistan. Sen. Lindsey Graham (R-S.C.) has called for Biden’s impeachment for “dereliction of duty by the commander in chief” in withdrawing our troops without adequately preparing to evacuate Americans and Afghans who helped us.

Whatever one may think of what Biden did or failed to do, it does not constitute an impeachable offense under the text of the Constitution. As I argued to the Senate a year and a half ago, vague terms like “abuse of power” or “dereliction of duty” do not meet the constitutional criteria of “treason, bribery or other high crimes and misdemeanors.“  A similar term — “maladministration” — was explicitly rejected by the Constitutional Convention after James Madison, the father of our Constitution, warned that “so vague a term will be equivalent to a [presidential] tenure during pleasure of Senate” — in other words, the British parliamentary system in which a prime minister can be removed by a simple vote of no confidence.  

Instead, the Framers insisted that a president could not be impeached unless he committed criminal-type conduct akin to treason and bribery. Overly broad and vague accusations, such as “abuse” and “dereliction,” have been directed against most of our presidents by their political opponents.

When I made that argument during Trump’s impeachment, the Senate, then controlled by Republicans, seemed to agree and voted not to remove President Trump on the open-ended grounds proposed by the Democratic-controlled House in its impeachment resolution.

Now the shoe is on the other foot, and some Republicans want to broaden the criteria for impeachment while Democrats want to narrow it. Welcome to Washington, where constitutional — and other — principles are generally invoked and then ignored, depending on whose political ox is being gored. Remember when Senate Republicans stopped Judge Merrick Garland’s nomination to the Supreme Court in 2016 on the allegedly principled grounds that a president should not be allowed to fill a Supreme Court vacancy in a presidential election year — and then abandoned that principle when Trump nominated Judge Amy Coney Barrett at a time even closer to the 2020 presidential election.

Those of us — Republicans and Democrats — who argued or believed that a president cannot constitutionally be impeached for non-criminal-type behavior must now demand that this constitutional standard be applied equally to Democratic and Republican presidents. (I cannot speak for Democrats who urged the removal of Trump and who would not now apply their criteria to Biden.) 

Alexander Hamilton, one of the nation’s Founding Fathers, said that the “greatest danger” would be impeachment decided by “the comparative strength of the parties.” That is what is happening now. Biden won’t be impeached only because the Democrats have more “strength” in both houses. If Republicans controlled the House, he might be impeached by members of Congress who voted against the impeachment of Trump. Any threat or attempt — even one doomed to failure because Democrats control both houses of Congress — to use the impeachment power on partisan grounds, damages the Constitution and creates a dangerous precedent.

It is no answer for Republicans to say of Democrats, “They did it first.” This is not a schoolyard fight among adolescents. The impeachment power is among the most important checks and balances devised by the framers, who decided that it should only be deployed when the carefully crafted constitutional criteria are clearly met.

President Biden’s handling of the withdrawal from Afghanistan is likely to be evaluated by the voters in the midterm elections next year, and then in the presidential election of 2024. It is properly subject to criticism by members of Congress, by the media, by academics and by ordinary citizens. It is not, however, a proper subject for impeachment or legal action, even if the Democrats acted unconstitutionally to impeach President Trump. Two constitutional wrongs do not make a constitutional right.

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump for the first Senate impeachment trial. Dershowitz is the author of numerous books, including “The Case Against the New Censorship,” and his podcast, “The Dershow,” is available on Spotify and YouTube. Follow him on Twitter @AlanDersh.