Harvard law professor and self-described liberal Democrat Alan Dershowitz slammed House Democrats’ Articles of Impeachment against President Donald Trump on Sunday, saying that what they are doing amounts to the “greatest nightmare” that America’s founding fathers had when forming the country.
Dershowitz, who is on Trump’s legal defense team in a very limited role, pushed back on ABC News’ George Stephanopolous’ suggestion that the Articles contained crimes.
“But they weren’t elements – they are not articles of impeachment,” Dershowitz said. “The articles of impeachment are two non-criminal actions, namely obstruction of Congress and abuse of power, and those are – would have to be voted on by the Senate.”
“Let me press that, though,” Stephanopolous said. “Is it your position that President Trump should not be impeached even if all the evidence and arguments laid out by the House are accepted as fact?”
“That’s right,” Dershowitz responded. “When you have somebody who, for example, is indicted for a crime – let’s assume you have a lot of evidence – but the grand jury simply indicts for something that’s not a crime, and that’s what happened here, you have a lot of evidence, disputed evidence, that could go both ways, but the vote was to impeach on abuse of power, which is not within the constitutional criteria for impeachment, and obstruction of Congress.”
“Those are both the kinds of things that led Hamilton and Madison – talk about nightmare – to regard that as the greatest nightmare, number one, giving Congress too much power to allow the president to serve at the will of Congress,” Dershowitz continued. “And number two, as Hamilton put it, the greatest danger is turning impeachment into a question of who has the most votes in which House, and rather than having a consensus and a broad view of impeachable conduct.”
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TRANSCRIPT:
STEPHANOPOULOS: Let’s now hear from a member of the president’s legal team, Alan Dershowitz, professor emeritus at Harvard Law School, also the author of the new book, “Guilt by Association.”
Professor Dershowitz, thank you for joining us this morning. You just heard Congressman Schiff right there call your position that even if these facts are proved it’s not impeachable absurdist.
DERSHOWITZ: Well it’s the same position that was successfully argued by former Justice Benjamin Curtis in the trial of Andrew Johnson. Andrew Johnson was impeached in part for non-criminal conduct. And Curtis, who was the dissenting judge in the Dred Scott case and one of the most eminent jurists in American history, made the argument that has been called absurdist, namely that when you read the text of the Constitution — bribery, treason, bribery, and other high crimes and misdemeanors — other really means that crimes and misdemeanors must be of kin — akin to treason and bribery.
And he argued, very successfully, winning the case, that you needed proof of an actual crime. It needn’t be a statutory crime, but it has to be criminal behavior, criminal in nature. And the allegations in the Johnson case were much akin to the allegations here — abusive conduct, obstructive conduct — and that lost.
So I am making an argument much like the argument made by the great Justice Curtis. And to call them absurdist is to, you know, insult one of the greatest jurists in American history. The argument is a strong one. The Senate should hear it. I’m privileged to be able to make it. I have a limited role in the case. I’m only in the case as of counsel on the constitutional criteria for impeachment. I’m not involved in the strategic decisions about witnesses or facts.
But I will make a strong argument that Justice Curtis was correct and that Congress was wrong in impeaching for these two articles.
STEPHANOPOULOS: As you know, the House materials have cited crimes that were — crimes that were committed, as well.
DERSHOWITZ: But they weren’t elements — they are not articles of impeachment. The articles of impeachment are two non-criminal actions, namely obstruction of Congress and abuse of power, and those are — would have to be voted on by the Senate.
STEPHANOPOULOS: Let me press that, though. Is it your position that President Trump should not be impeached even if all the evidence and arguments laid out by the House are accepted as fact?
DERSHOWITZ: That’s right. When you have somebody who, for example, is indicted for a crime — let’s assume you have a lot of evidence — but the grand jury simply indicts for something that’s not a crime, and that’s what happened here, you have a lot of evidence, disputed evidence, that could go both ways, but the vote was to impeach on abuse of power, which is not within the constitutional criteria for impeachment, and obstruction of Congress.
Those are both the kinds of things that led Hamilton and Madison — talk about nightmare — to regard that as the greatest nightmare, number one, giving Congress too much power to allow the president to serve at the will of Congress. And number two, as Hamilton put it, the greatest danger is turning impeachment into a question of who has the most votes in which House, and rather than having a consensus and a broad view of impeachable conduct.
STEPHANOPOULOS: The brief…
DERSHOWITZ: So…
STEPHANOPOULOS: Go ahead sorry. The brief filed by the president’s attorneys last night asserts several times that the president did nothing wrong with Ukraine. Do you agree with that?
DERSHOWITZ: I didn’t sign that brief. I didn’t even see the brief until after it was filed. That’s not part of my mandate. My mandate is to determine what is a constitutionally authorized criteria for impeachment? And I strongly believe that abuse of power is so open-ended — half of American presidents in history, from Adams to Jefferson to Lincoln to Roosevelt, have been accused by their political enemies of abusing their power. The framers didn’t want to have that kind of criteria in the Constitution because it weaponizes impeachment for partisan purposes.
STEPHANOPOULOS: I understand that’s your position, but that’s not what I’m asking, because you’re also a citizen. As a citizen, do you think it’s OK for a president to solicit foreign interference in our election?
DERSHOWITZ: There’s a big difference between what’s OK — what’s OK determines who — what you vote for who you vote for. I’m a liberal Democrat who’s been critical of many of the policies of the president. I’m here as a constitutional lawyer, a lawyer who’s taught for 50 years constitutional criminal procedure at Harvard, taught a course on impeachment, taught a course on constitutional litigation.
I’m here to lend my expertise on that issue and that issue alone, because that’s the primary issue.
STEPHANOPOULOS: So you don’t think it’s OK?
DERSHOWITZ: If the allegations are not impeachable, then this trial should result in acquittal, regardless of whether the conduct is regarded as OK by you or by me or by voters. That’s an issue for the voters.
STEPHANOPOULOS: But what do you think? I’m asking what you think.
DERSHOWITZ: I’m not — as a lawyer in the case, I’m not going to present my personal views on what I think. I think that conduct does not rise to the level of an impeachable offense. And that’s…
STEPHANOPOULOS: In your recent…
DERSHOWITZ: Go ahead.
STEPHANOPOULOS: In your recent book on impeachment, you did take a stand. You said, quote, and I want to show everybody right here, “An American should not collude with a foreign power in an effort to enhance his candidacy.”
DERSHOWITZ: I agree. I agree with that.
STEPHANOPOULOS: Isn’t that what happened here?
DERSHOWITZ: And I think many presidents — I think many presidents in the past have made foreign policy decisions to enhance their electoral prospects. And if people think that this president did that, that’s a factor that should enter into their decision who to vote for, among many, many other factors.
I’m not here for a political discussion. I’m a liberal Democrat who voted against President Trump and who voted for Hillary Clinton. I’m here to present a constitutional argument the way I did in the Clinton impeachment and the way I argued when I was on the national board of the ACLU in the Nixon administration.
STEPHANOPOULOS: The president’s brief filed last night says very clearly the president did nothing wrong, and you’re saying you’re not willing to endorse that statement?
DERSHOWITZ: I did not read that brief or sign that brief. That’s not part of my mandate. My mandate is to present the constitutional argument. And if the constitutional argument succeeds, we don’t reach that issue, because you can’t charge a president with impeachable conduct if it doesn’t fit within the criteria for the Constitution. And I’m going to be echoing an argument made by an extremely distinguished former justice of the Supreme Court, the dissenter in Dred Scott, and I would hope that the Senate would be informed by that argument and the argument prevailed in the Andrew Johnson case, so it’s anything but an absurdist argument.
STEPHANOPOULOS: You say you…
DERSHOWITZ: It’s a very strong and powerful argument.
STEPHANOPOULOS: You say you voted for Hillary Clinton. Will you vote to re-elect President Trump?
DERSHOWITZ: I don’t know who’s going to run against him. And I don’t what the elements will be. And I don’t generally disclose who I’m going to vote for.
STEPHANOPOULOS: You just did.
DERSHOWITZ: I’m a liberal Democrat. I’ve always voted Democrat.
STEPHANOPOULOS: Let me — final question. Senator Rubio and others have said that the Senate should not consider new evidence, documents, and witnesses, that it’s the job of the Senate to work from the evidence compiled by the House. Is that correct as a matter of constitutional law?
DERSHOWITZ: The Constitution doesn’t speak to that issue at all. It’s an open issue. It’s to be decided by the House with its rules, by the Senate with its rules. The Constitution really says the Senate is the judge and whatever the Senate decides, by a fair vote — the one thing that’s very clear is that if witnesses are permitted on one side, they have to be permitted on both sides. And if witnesses are permitted, it will delay the trial considerably, because the president will invoke executive privilege as to people like John Bolton that will have to go to the court and we’ll have to have a resolution of that before the trial continues.
So that’s not a constitutional issue. The Senate makes the decision. The chief justice presides. And people will have to decide whether to seek witnesses and whether the delay is warranted. My argument is going to focus purely on the constitutional issues.
STEPHANOPOULOS: Professor Dershowitz, thanks for your time this morning.
DERSHOWITZ: Thank you.