Alan Dershowitz’s “Maladministration” Argument Makes No Sense

Ummmm what?

J. Scott Applewhite/AP

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During a heated question-and-answer session on Wednesday, Alan Dershowitz, a member of the president’s legal team in the impeachment trial, continued to argue that even if Trump’s decision to withhold military aid from Ukraine last summer qualified as an “abuse of power,” as such, it does not qualify as an impeachable offense. Instead, he said, “abuse of power” falls under the category of “maladministration”—a term rejected by the framers of the Constitution in the 18th century.

As evidence, he cited…the dictionary. “What is maladministration?” Dershowitz asked, pressing his fingertips together as he stood before the Senate chamber. “If you look it up in the dictionary and you look up synonyms, the synonyms include abuse, corruption, misrule, dishonesty, misuse of office, and misbehavior.”

The Internet promptly did some fact-checking:

Merriam-Webster defines maladministration as “corrupt or incompetent administration (as of a public office).” Macmillan has “bad or dishonest management.” According to Dictionary.com, the term means “to administer or manage badly or inefficiently.”

So, not synonymous with “abuse of power.” And of course, definitions can evolve over some 200-odd years. But even at the Constitutional Convention, it was clear that nobody could agree on the meaning of “maladministration”—and in fact, that was the very reason it was rejected as a standard for impeaching a president. Politico has the 18th-century backstory:

In the waning days of the convention, on September 8, 1787, Virginia delegate George Mason moved to add “maladministration” to the existing list of impeachable offenses—at that point, only “Treason or Bribery.” Madison objected that “so vague a term [as maladministration] will be equivalent to a tenure during pleasure of the Senate.” Mason responded by withdrawing his motion and substituting “other high crimes and misdemeanors against the state.” Mason’s revised motion passed 8-3, which is how the “high crimes and misdemeanors” language got into to the Constitution.

The puzzling rhetorical cartwheels by Dershowitz and the rest of the president’s legal team all serve the larger strategy of convincing the Senate that in order to remove the president from office, the House managers must prove that Trump had committed a criminal offense. Ironically, Dershowitz has also had to do some additional gymnastics to explain why, 22 years ago, he believed a crime was not necessary for an impeachment trial.

“What happened since 1998 is that I studied more, did more research, read more documents and like any academic altered my views. That’s what happens,” he said. “That’s what professors ought to do.”

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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