After Senate trial, Raskin reflects on his role in Trump impeachment process
Legislator takes aim at arguments by Dershowitz, his former Harvard Law School professor
U.S. Rep. Jamie Raskin
Photo from U.S. Rep. Jamie Raskin's website
The months-long debate over the impeachment of President Donald Trump brought national attention to second-term U.S. Rep. Jamie Raskin of Takoma Park.
Raskin was among a group of congressional progressives pushing for an impeachment inquiry prior to the disclosure of Trump’s July 25 phone call to Ukrainian President Volodymyr Zelensky — which created a furor over whether Trump leveraged U.S. aid to coerce Zelensky into investigating a potential Democratic presidential nominee, former Vice President Joe Biden, and his son, Hunter.
The Ukrainian controversy kicked the impeachment process into high gear among the House Democratic majority, with Raskin — a long-time professor of constitutional law at American University — becoming a familiar presence on national TV news, tasked by his party’s leadership with explaining the case for impeaching a president for only the third time in history.
Two days after the impeachment process ended in acquittal last week — with only one Republican joining Senate Democrats in voting for articles of impeachment passed by the House — Raskin discussed the Senate trial, along with the overall process and his role in it, with Bethesda Magazine contributing editor Louis Peck.
Bethesda Beat: In the end, not only did the Senate not produce the two-thirds majority necessary to convict a president on impeachment charges; the House managers failed to persuade even a bare majority of senators to call witnesses, with just two Republicans joining the Democrats on that vote. Given those outcomes, do you see an upside to this episode?
Raskin: It reminds me of when they asked [the late Chinese Premier] Chou En-Lai [in the early 1970s] what he thought about the French Revolution, and he said it was too early to tell (chuckles). Dramatic historical events and ruptures like these are very rarely understood and fully assimilated at the time.
There’s no doubt that, while watching the president’s deranged and vindictive performance [the day after the Senate vote of acquittal], a lot of people were asking themselves whether the whole thing was worth it. But the reality is that we had to impeach the president for committing outrageous high crimes and misdemeanors against the Constitution and the people.
The president withheld hundreds of millions of dollars in security assistance to a besieged foreign ally resisting Russian aggression — in order to coerce the president of that country to participate in our presidential election by sabotaging one of [Trump’s] opponents. If Barack Obama had done that, the GOP membership of the Senate would have been storming the White House to demand impeachment and removal.
The fact that the Republican senators behaved not like impartial jurors, but like members of a religious cult, does not render our decision a foolish one. We had to stand up for the Constitution, and I’m glad that we did — and this president will be an impeached and disgraced president forever because of his crimes against democracy.
BB: Many saw you as a leading candidate to be one of the “managers” to present the House impeachment case to the Senate. In early January, you told the Roll Call newspaper: “I have no strategy and no bloodthirst ambition to do that. I am more than available … if they need a constitutional law professor. But there are people of remarkable talents across our caucus, and I know there are dozens and dozens of people who would be good and excellent at it.” That being said, any element of disappointment on your part about not being chosen for that role?
Raskin: First of all, I was quite overexposed (chuckles) during the House impeachment process. I was all over the House Judiciary Committee hearings — but also, I represented the Judiciary Committee before the House Rules Committee for nine hours when we sent the articles [of impeachment to the House floor]. Obviously, I’ve been able to help shape the constitutional case for impeachment from the beginning.
Politics is all about taking turns, and the House of Representatives is a huge body — and there are a lot of people who want to take a turn doing these things. I understood the basic dynamics of it. The impeachment managers’ team was set up, as [House Speaker Nancy Pelosi] repeatedly said, to try a case with witnesses. Alas, that did not happen. When the dialogue in the Senate turned to constitutional issues, as I expected it would — especially with Alan Dershowitz — that moment killed me a little bit in that I wasn’t there to answer my former criminal law professor.
BB: As you note, Dershowitz — among your professors at Harvard Law School in the mid-1980s — was added to the legal team defending Trump on the Senate floor. In hindsight, would Speaker Pelosi have been well-advised to include on the team of House managers someone with your background in constitutional law to take him on?
Raskin: I will leave that judgment to others as to whether I could have been an effective player at that point. … Dershowitz, by the way, is not a constitutional law professor. He never taught constitutional law. He is a criminal law professor and, even there, I will tell you from personal experience, there was not a lot of criminal law doctrine that was conveyed in our class (chuckles). He was always just getting back from Claus von Bülow’s house and telling us stories about it. (Editor’s note: von Bülow, a wealthy socialite, faced two high-profile trials after he was accused of attempting to murder his wife. Dershowitz played a leading role in winning von Bülow’s 1985 acquittal.)
I did regret I was not [on the Senate floor] at a couple of moments, especially when Dershowitz rose. I would have loved to demolish every single sentence in his statement. The arguments that he made are really dangerous and subversive of the separation of powers in constitutional democracy.
BB: Is your criticism prompted in part by Dershowitz’s argument in which he contended, “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”? He then cited the case of President Abraham Lincoln ordering General William T. Sherman to allow troops to go to Indiana to vote during the Civil War, in the belief his re-election was in the public interest.
Raskin: First of all, confusing the personal political interests of the president with the rule of law is the essential error of monarchy and dictatorship. With respect to the Lincoln vignette … I had never heard the argument that Lincoln had undermined the war effort by allowing troops to vote. Troops are citizens, and there is a [post-Civil War] Supreme Court decision — Carrington v. Rash — holding that soldiers have the right to vote, and soldiers cannot be denied the right to vote.
So if Lincoln made provisions for the soldiers to vote, and they voted with a secret ballot, according to their own political desires, he did absolutely nothing wrong. How can you compare that to Donald Trump dragging a foreign power into our election secretly in order to sabotage his political opponent? That’s just an obscene analogy.
BB: Given your history with Dershowitz, did you have an opportunity to meet him off the Senate floor during the trial and discuss your differences?
Raskin: I was over in the Senate a couple of times and I spotted him, but we did not have any direct encounter. I will tell you that my constitutional law professor, [Laurence] Tribe, is a very close friend and we have been in constant touch from the beginning of this. He has rendered the country magnificent service.
A lot of people were writing me when Dershowitz spoke that I should turn in my Harvard law diploma and renounce my association (chuckles). But I quickly answered that Larry Tribe has vindicated my faith in Harvard Law School.
BB: Speaking of Tribe, he was quoted last week by The Washington Post calling arguments by congressional Republicans that Trump had not committed an impeachable offense “wholly unfounded and genuinely crackpot theory.” Along the same line, you were quoted by Maryland Matters as telling a Bethesda constituent meeting last November that Trump’s actions constituted “the most impeachable thing that an American president has ever done.” What prompted you to reach that conclusion?
Raskin: By the way, the most impeachable thing a president has ever done does not necessarily mean the worst thing an American president has ever done — because there are terrible things that presidents have done, especially with respect to war, that are not necessarily impeachable offenses.
The reason I said it was the most impeachable thing that a president has ever been tried for is because it marks the convergence of all of the principal anxieties of the framers [of the Constitution]. They feared presidents making deals with foreign powers to come into America and corrupt our elections to benefit the president personally. When we did a systematic study of the Federalist Papers and the ratifying [constitutional] conventions, the recurring themes were about the abuse of power, corruption of elections, and entanglement with foreign powers. So the president, in his inimitable way, essentially rang every bell that the framers set forth for impeachable conduct.
Abuse of power was the paradigm high crime and misdemeanor. The language [included in the Constitution] was “treason, bribery, or other high crimes and misdemeanors.” And when you read through the writings of the framers and the histories of impeachments, everyone is clear -— on all sides politically — that abuse of power is an impeachable offense.
BB: What about the contentions of Trump defenders during the impeachment process who questioned what, if any, statutory crime had been committed?
Raskin: Notice the trickery of the argument that there was no statutory crime. Whenever we looked into statutory criminal offenses of the president — such as campaign finance violations, or bribery or extortion — the claim was made very forcefully by the Republicans that a president may not be prosecuted or indicted while in office.
That has been the refrain of the GOP ever since Donald Trump took office — that a president may not be prosecuted for ordinary criminal offenses. Why? They said because the only remedy is impeachment and removal from office while he’s still president.
So, when he conducted the Ukraine shakedown, we moved forward precisely on the impeachment track, saying that this was a constitutional offense. At that point, they turned around and said, “No, you don’t have a statutory criminal offense that you’re [citing].”
There are two problems with that argument. The first is that there were lots of elements of statutory criminal offenses in the articles of impeachment. But, more fundamentally, we were indicting him for a constitutional crime — specifically, the constitutional crime of abuse of power. That was something that they understood perfectly when they were arguing that the president could not be prosecuted for statutory offenses while in office. So they were advancing a heads-we-win, tails-you-lose argument. That was just lawyers’ tricks.
BB: With the impeachment process over, what related matters do you believe the House Democratic majority should continue to pursue?
Raskin: Priority number one has to be to defend the integrity of the 2020 election. When I appeared on behalf of the Judiciary Committee before the Rules Committee [regarding the articles of impeachment], I argued that this was not only a high crime, but that it was a crime in progress.
The president believes his conduct was “perfect.” And so, as far as we know, he intends to get [Ukrainian] President Zelensky to announce his investigation of the Bidens.
Maybe Trump feels he doesn’t have to go after Joe Biden anymore, just because his political fortunes are languishing. But that just suggests he will have other tricks up his sleeve to sabotage his other opponents. We have to defend the integrity of the election, against enemies foreign and domestic. That means we have to defend the elections on the terrain of cybersecurity. We also have to defend the elections against voter purges and voter suppression.
BB: Prior to voting to send the articles of impeachment to the Senate, the House sought testimony from several administration officials who were blocked from testifying by the White House. Do you expect the House will now go to federal court to compel this testimony in the coming months?
Raskin: I do believe that we have an obligation to the country to get the information out that was suppressed when the Senate decided not to have a trial [with witnesses]. I think that [former White House National Security Adviser John] Bolton’s testimony needs to come out, and will come out. Democracy needs a ground to stand on, and that ground has got to be the truth. (Editor’s note: In a forthcoming book, Bolton is reported to write that Trump pressured him to set up a meeting between Zelensky and Trump’s personal attorney, Rudolph Giuliani, to obtain information about Biden and his son.)
We have some very challenging decisions to make about what litigation has to be pursued at this point. The litigation is time-consuming, and it’s draining of scarce resources. But right now, we have won the overwhelming number of cases in court.
And that makes all the sense in the world: Congress is the primary and predominant branch of government. We are the law-making branch. The president’s core job is to take care that the laws are faithfully executed. That’s it. Regardless of whatever is going on in his mind, our president is not a monarch or a dictator.
We are determined that the president’s [tax returns] be revealed — as he promised they would be, and as every other president in our lifetime has revealed his taxes. In general, I want to see the money trail.
The original sin of this administration was that the president converted the presidency into an instrument of self-enrichment. That’s what gave him the confidence that he could use the presidency also as an instrument of re-election.
The violations of the foreign and domestic emoluments clauses [of the Constitution] are severe and ongoing. We have to come up with a legislative mechanism for calling a president to account if he decides to turn the White House into a for-profit enterprise. We cannot allow that precedent to stand.