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Floridaman can be impeached for what he has done and what he might do, as long as the Senate decides that he should be removed. There was intentionally no constraint put on the Senate to have to abide by anything other than their consciences and the political ramifications of their actions. It is not a court of law, it is the Senate.
Dershowitz claimed in his testimony that a president does not commit “high crimes and misdemeanors” unless he violates criminal statutes.
By this argument, no abuse of power could be impeachable unless it violated a criminal law.
He uses a revisionist view of the constitution and the founders to back himself up.
He says that Hamilton in Federalist 65 was writing about specified crimes and that it should not be expanded to include misconduct, abuse, or violation [of some public trust].
He selectively misses part of the essay, and I quote: can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.
Hamilton said that the Senate was the place to try impeachments, that they do no involve just the normal application of laws and facts, but rather an "awful discretion" not bound by normal legal standards, that the Senators would have to bear political responsibility for.
As far as his gross interpretation of Madison on maladminstration, he apparently limited his reading.
Madison specifically argued that if senators feared that the president might abuse the pardon power, then the Senate could preemptively remove him from office in an impeachment trial: “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him [with pardons], the House of Representatives can impeach him; they can remove him if found guilty.”
This contradicts Dershowitz's assertion that it needs to be a crime to remove the president, and in addition reflect's Madison's belief that a President could be removed preemptively.
Dershowitz hopes that the Senate and you fall for his false choice, that because Madison rejected maladministration therefore he has a high and somehow concrete standard of criminal acts. He ignores that high crimes and misdemeanors was intended to include an undefined category of crimes and miscarriages of public trust.
That is what "high crimes and misdemeanors" consist of.
It is not an invitation for senators to turn impeachment into whatever they want it to be, but a charge to senators to make hard legal and prudential judgments about abuses of power and violations of the public trust which are so grave that, even if not technically illegal, still merit constitutional impeachment and removal.
Just remember the other stupid stuff Dershowitz has pontificated on.
His possibly self serving argument that statutory rape should be lowered to 15.
"It certainly doesn't have to be a crime," Dershowitz said on CNN in 1999. "If you have somebody who completely corrupts the office of president, and who abuses trust, and who poses great danger to our liberty, you don't need a technical crime."
His explanation and notice that it only has to be "criminal like" not a crime: "So I have now thoroughly researched the issue and concluded that although a technical crime with all the elements may not be required, criminal like behavior akin to treason and bribery is required.
The emphasis is mine.
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