Dershowitz vs. Toobin: Is Presidential Maladministration A High Crime Or Misdemeanor? | Video | RealClearPolitics

Dershowitz vs. Toobin: Is Presidential Maladministration A High Crime Or Misdemeanor?

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Attorney Alan Dershowitz and CNN chief legal analyst Jeffrey Toobin debate the articles of impeachment approved by the House Judiciary Committee.

CNN, JOHN BERMAN: As Jim Acosta reported earlier in the program, President Trump's lawyers have been trying to convince him a Senate trial of any considerable length is risky. But if recent history tells us anything, it's that the president can change his mind in a heartbeat in that he may not listen to all his advisers that closely anyway.

Joining me now is Alan Dershowitz. A source familiar with the matter tells CNN that he, Dershowitz, is informally advising the president's legal team and is expected to handle some of the constitutional aspects of the defense in a Senate trial. He's also the author of "Guilt By Accusation: The Challenge of Proving Innocence in the Age of #MeToo." In addition, he's a professor emeritus at Harvard.

And here with me, CNN senior legal analyst, chief legal analyst, in fact, Jeffrey Toobin, a former student of Professor Dershowitz.

Professor, just some housekeeping here. To the extent you can talk about it, can you clarify what if anything your role is, either formally or informally with the president's impeachment defense?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD UNIVERSITY LAW SCHOOL: No, I really can't talk about it at this point, but I can tell you that the advice I've given the president in public on television and in my op-eds is to go for a very short constitutional defense focusing on the inadequacies of the two charges. And particularly after today, the Supreme Court today granted cert in three cases, indicating that they're going to review the subpoena power of both Congress and the prosecutor.

And it seems to me that substantially undercuts the second article of impeachment that basically says you obstruct Congress if you refuse to comply with subpoenas absent a court order. So, I think the president's constitutional arguments were strengthened today, and he'd be well-advised, I believe, to limit himself to those constitutional arguments.

BERMAN: Number one, the court says they will rule in June. That's a long time from now. Number two, the president said something relatively unprecedented, which is that no one should cooperate in any way at all. Like zero cooperation, which is unprecedented.

That aside, Professor, you do have another defense too. You suggest that Congress is just making things up.

What's your evidence for that?

DERSHOWITZ: The Constitution itself. There was at the Constitutional Convention a proposal to include maladministration as a ground for impeachment and led by Madison. It was rejected on the ground that it would make it too easy for Congress to have the president serve at the will of Congress and would turn us into a parliamentary democracy where a vote of no confidence is enough.

And so, instead, they put in fairly specific criteria -- treason, bribery, high crimes and misdemeanors. Now, obviously the word "misdemeanors" has been subject to some debate, but you can't interpret misdemeanor to mean pretty much exactly what the Framers rejected at the Constitutional Convention. So I do think --

BERMAN: Well, says who?

DERSHOWITZ: They're trying to make it up as they go along.

BERMAN: Says who, because Jeffrey Toobin, high crimes and misdemeanors is taken by many to mean, including Alexander Hamilton, who was at that convention that Professor Dershowitz is talking about, taken to mean a violation of public trust.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Well, and the kind of offense that only a president can commit. That's why this misconduct is so much at the heart of what the framers meant by high crimes and misdemeanors because you or I, Alan, we can lie under oath. We can rob a bank. But we cannot withhold money from Ukraine in return for political help in our campaign.

The only person who can do that, who can violate his oath and violate the -- and abuse power is the president, and that's why this is so much at the heart of what the framers meant by a high crime and misdemeanor.

DERSHOWITZ: No, I disagree. I think what the framers did is they had a prerequisite. There had to be one of the four prerequisites, it's treason, bribery, high crimes and misdemeanors. After that, they could still decide not to impeach if they didn't think it was an abuse of power.

And if you read what Hamilton said in Federalist 65, he basically lists the criteria, and then he said, these are important criteria because they reflect an abuse of power. But abuse of power was rejected and terms like that as explicit grounds --

BERMAN: No, they weren't.

DERSHOWITZ: -- for impeachment.

TOOBIN: That's not -- abuse of power was not rejected.

DERSHOWITZ: Yes, they were.

TOOBIN: And, Alan --

DERSHOWITZ: The word maladministration was rejected --

TOOBIN: Maladministration is a totally different thing. Maladministration is being a bad president, doing bad things and, you know, you're right. That is not a ground for impeachment.

But, you know, getting us into a bad war in Iraq is not a ground for impeachment. But if you withhold money that Congress has appropriated for the sole and exclusive reason of getting dirt on your political opponents, that is precisely an abuse of power.

DERSHOWITZ: But I can name you 20 presidents that have abused power under those criteria. President Kennedy going after people through the IRS. President Lincoln suspending the writ of habeas corpus. President Roosevelt confining 110,000 Japanese-Americans.

Every controversial president has been accused by his political opponents of abuse of power. And if you give Congress the ability to impeach a president and remove him based on vague concepts like abuse of power, you're really turning us into a parliamentary democracy.

Look, these are the issues that are going to be debated, and there's no perfect answer. None of us can get into the minds of Framers. But I've read extensively in the history of the Constitutional Convention and the Federalist Papers and it's certainly my considered view that the Framers wanted specific criteria, not open-ended ones like abuse of power.

BERMAN: That's not true.

DERSHOWITZ: Which can be weaponized by either party against the other.

BERMAN: That's not true.

DERSHOWITZ: You say it, and I say it is.

BERMAN: We also heard from three constitutional lawyers and even Jonathan Turley didn't suggest that the Framers of the constitution had an explicit list of crimes that you have to commit in order to be impeached. The phrase "high crimes and misdemeanors" in fact does mean something specific at that time and it includes any violation or breach of public trust. That's why Alexander Hamilton talked about that in the Federalist Papers.

There's ample evidence of the fact that that's the case. There's also ample evidence of the fact -- and, Jeffrey, you can talk about this -- that one of the primary concerns that the Founders had in writing the constitution was undue foreign influence in U.S. elections. And this seems to be the invitation for such a thing.

TOOBIN: That's right. And, again, it's the kind of misconduct that only a president can commit. And that goes to count two as well, the obstruction of Congress. You know, yes, it is true if it were one subpoena that the president did not comply with.

But to say to Congress, I will not cooperate at all. I will not give you one witness. I will not give you one piece of evidence, you know, email, document, I mean that is precisely the kind of blanket refusal that you can't say to the Congress, well, go sue me, and maybe it will be resolved sometime in 2020, 2021. Come on, Alan.

DERSHOWITZ: Yes, you can. In fact, I do that every day when I represent people, and I'm not the president.

What I say to prosecutors is, I'm not giving you one bit of evidence. I'm not cooperating. I'm not allowing my person to come in. The burden is on you. You have to prove your case.

And I don't obstruct justice by doing that. The president is entitled as head of the executive branch --

TOOBIN: Your clients take the Fifth. There is a separation of powers between coordinated branches of government.

DERSHOWITZ: There's executive privilege.

TOOBIN: It's an entirely different scenario.

DERSHOWITZ: I know, and it's much more powerful because the separation of powers is in the body of the Constitution itself.

TOOBIN: Right.

DERSHOWITZ: Not in the amending process. And the separation of powers crucially allows the head of the executive branch to challenge every legislative action and leave it to the courts to decide.

Alexander Hamilton in Federalist 78 said that the courts are the umpires between the two branches.

BERMAN: But --

DERSHOWITZ: And that's what President Trump --

BERMAN: But other than having the chief justice preside over a Senate trial, there is no role for the judiciary outlined in the impeachment process.

Jeffrey, very quick last word. Ten seconds.

TOOBIN: I'm looking forward to Alan defending the president on the floor of the Senate. Not exactly what I expected.

DERSHOWITZ: I'm not commenting on that.

TOOBIN: Not exactly what I expected in your criminal law class, that that's how you would culminate your career, but hey.



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