Mr. Dershowitz encouraged Mr. Toobin to read a law review article I wrote on the impeachment of President Andrew Johnson, in which a former Supreme Court justice, Benjamin Curtis, successfully argued that no one should ever be punished for doing something that wasn’t a crime. Mr. Dershowitz apparently thought my article supported his view that even if Mr. Trump did everything the House has accused him of doing, the president shouldn’t be convicted because he hasn’t been accused of criminal behavior.
As an academic, my first reaction was to be grateful that someone had actually read one of my articles.
But as a legal academic, my second reaction was confusion. Even if you think impeachment requires a crime, as I do, that belief hardly supports the president’s defense or Mr. Dershowitz’s position. President Trump has been accused of a crime. Two in fact: “abuse of power” and “obstruction of Congress.”
Common-law crimes are no harder to define with precision than crimes written down in a statute. Ask any first-year law students for the common law’s definition of burglary and they’ll (hopefully) be able to tell you: “the breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.” If someone is accused of burglary in a state where the crime isn’t defined by statute, no defense lawyer would respond by announcing that burglary is vague or made up. Burglary is an established crime, even where its definition exists only in legal treatises and judicial opinions.
President Trump’s defense falls apart for precisely the same reason. As with burglary, American legal treatises and judicial opinions have long recognized the criminal offense of “abuse of power,” sometimes called “misconduct in office.” In 1846, the first edition of the pre-eminent treatise on American criminal law defined this common-law offense as when “a public officer, entrusted with definite powers to be exercised for the benefit of the community, wickedly abuses or fraudulently exceeds them.” The treatise noted that such an officer “is punishable by indictment, though no injurious effects result to any individual from his misconduct.”
As for “obstruction of Congress,” that’s not only a common-law crime. Versions of the crime have also been listed in the federal criminal code since the 19th century.
https://www.nytimes.com/2020/01/27/o...nse-trump.html