Impeachment Next? An Objective Assessment of Trump's Guilt or Innocence | Opinion

Democrats are jumping all over Michael Cohen's guilty plea in their newest effort to stretch the law in order to find impeachable offenses against President Trump. Anti-Trump pundits have breathlessly filled the cable airwaves insisting that the Cohen plea establishes that Trump is a felon, and unindicted co-conspirator, and has committed impeachable high crimes. My friend Lanny Davis has assured the American public that Trump has committed felonies "without any question."

But the reality is that there are serious questions about whether Donald Trump has committed any crimes, any impeachable offense, or indeed any violations of the murky campaign laws. Justice Scalia, who had the assistance of brilliant law clerks, said he couldn't figure out what the campaign laws cover and do not cover. I have studied them in some detail and have a similar problem. For a crime to be committed, the criminal law must be crystal clear and not subject to ambiguity or reasonable differences of interpretation. Thomas Jefferson put it picturesquely when he said that criminal laws must be so clear that they can be understood by the average person "while running." I read these laws while sitting and I have difficulty understanding what is covered and what is not.

Some issues are clear. A candidate may contribute his or her own money to a campaign and the campaign is obligated to report that contribution. So if President Trump contributed his own money to pay the women who were accusing him, that would not be unlawful, even if his motive was solely to help him win (as distinguished from avoiding marital turmoil.) It is probably also true that if the president directed Michael Cohen, as his lawyer, to advance these payments, subject to being repaid by Trump, there would be no violation of law. But if Cohen himself made the payments, with no expectation of repayment, that might be a violation of the campaign laws by Cohen, but not by Trump.

Failure to report all campaign contributions in a timely manner is a violation that is common in virtually all political campaigns. That doesn't make it right, but it also doesn't make it a felony committed by the candidate. The Obama campaign was fined hundreds of thousands of dollars for failure to report some contributions. Other campaigns were also fined for similar failures.

Even under a worst case scenario, the allegations against President Trump do not rise to the level of impeachable offenses. First, as I have said, the law is unclear. Second, Cohen is anything but a credible witness. As Jeffrey Toobin recently acknowledged, Cohen is "under the thumb" of prosecutors. That means that he has an incentive to tell prosecutors what they want to hear. As Judge T.S. Ellis, who presided over the Manafort case, put it: Flipped witnesses have an incentive not only to "sing" but sometimes also to "compose." Judges and jurors are appropriately weary of the uncorroborated testimony of witnesses who have been told by prosecutors that they have a choice between dying in prison or flipping on their former associates or friends.

Traditionally, it has been civil libertarians and defense attorneys who have been skeptical of the prosecutorial tactic of pressuring witnesses into flipping. Traditionally, it has been conservative and law and order advocates who have justified this tactic. But now that President Trump is in the crosshairs of prosecutors, the sides have changed; now it is the liberals who are defending the tactic and the conservatives who are criticizing it.

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President Donald Trump attends a rally at the Charleston Civic Center on August 21, 2018 in Charleston, West Virginia. Spencer Platt/Getty Images

As a neutral civil libertarian, who voted for Hillary Clinton, but who doesn't allow political considerations to influence my legal judgments, I am pleased that conservatives are finally seeing the light. But I am distressed that liberals are turning off the light because of their strong opposition to President Trump. We need a single standard of justice for all people, regardless of their politics or position. Partisanship has no proper role in the criminal justice system.

An objective assessment of the Cohen guilty plea requires nuance and proportionality. Cohen's plea does not prove Trump's guilt. Nor does it prove his innocence. Under existing laws, much more evidence will be required before a firm conclusion can be reached. Commentators do not serve the public when they substitute wishful thinking for neutral analysis. I will continue to provide such neutral analysis without regard to who is being investigated, prosecuted or impeached.

I demanded such neutrality when President Clinton was improperly impeached and when Hillary Clinton was being subjected to shouts of "lock her up." To demand less with regard to President Trump would be hypocritical.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of The Case Against Impeaching Trump, Skyhorse Publishing, July 2018.​ Follow Alan on Twitter: @AlanDersh and Facebook: @AlanMDershowitz.

The views expressed in this article are the author's own.​​​​​​

Impeachment Next? An Objective Assessment of Trump's Guilt or Innocence | Opinion | Opinion