WASHINGTON: Democrats began presenting their opening arguments at the historic impeachment trial of President Donald Trump on Wednesday.

Adam Schiff, the chairman of the House Intelligence Committee, took the podium on the floor of the Senate to make the case that Trump should be removed from office for abuse of power and obstruction of Congress.

Democrats have 24 hours over the next three days to make their case and will be followed by White House lawyers who will defend the Republican president.

President Donald Trump’s defence hinges largely on arguments made in the impeachment trial of President Andrew Johnson more than 150 years ago: that impeachment requires a crime.

But most legal scholars disagree, including Jonathan Turley, the law professor called by Republicans in the House investigation to argue against impeaching Trump.

A lawyer for Johnson argued in his opening statement to the Senate that Johnson could not be removed from office because he was not guilty of a crime. Johnson was acquitted by a single vote. One of Trump’s lawyers, Alan Dershowitz says that same argument that impeachment requires “criminal-like conduct” will be central to the constitutional defence he will make on the president’s behalf.

The idea may be attractive to Republicans seeking a legal basis to acquit Trump of having abused his power and obstructing Congress. But legal scholars dispute the idea that the Founding Fathers ever intended for impeachable offenses to require proof of a crime.

Historians are equally dubious that the argument from Johnson’s lawyer, Benjamin Robbins Curtis, can be credited with securing Johnson’s narrow acquittal.

This is a way in which history is weaponised and distorted in order to give these kinds of arguments heft,” said Rachel Shelden, a Penn State University history professor and Civil War-era expert. It’s a way of trying to promote an understanding of the Johnson impeachment that is false, based on what historians now believe.”

At issue is the Constitution’s standard for impeachment: treason, bribery, or other high crimes and misdemeanors.” Over the centuries, the threshold has been understood to encompass actual crimes judges have been impeached for soliciting bribes and sex abuse, among other offenses but also noncriminal misconduct such as being drunk on the bench or favoritism in the appointment of bankruptcy receivers.

Johnson was impeached in part over accusations that he violated the Tenure of Office Act, which barred presidents from firing Senate-confirmed officials without Senate approval, over his removal of his War Secretary Edwin Stanton.

Johnson’s defence team questioned the constitutionality of that now-extinct law, and at his 1868 trial, one of his lawyers asserted that an impeachable offense refers to, and includes only, high criminal offenses against the United States.”

There can be no crime, there can be no misdemeanor without a law, written or unwritten express or implied,” said Curtis, a former Supreme Court Justice who served as Johnson’s principal attorney.

“There must be some law; otherwise there is no crime. My interpretation of it is that the language high crimes and misdemeanors’ means offences against the laws of the United States.”

Published in Dawn, January 23rd, 2020