CNN's Toobin vs. Alan Dershowitz: What Side Are You On? Are You Embarrassed Defending Trump? | Video | RealClearPolitics

CNN's Toobin vs. Alan Dershowitz: What Side Are You On? Are You Embarrassed Defending Trump?

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CNN legal analyst Jeffrey Toobin and constitutional lawyer Alan Dershowitz, who was recently added to President Trump's impeachment defense legal team, debate constitutional grounds for impeachment.

"Do you get paid for this? How does that work?" CNN host Anderson Cooper asked Dershowitz.

"That hasn't been discussed," he said. "But if I were to be paid, all the money would go to charity. I will not take a single penny... I'm doing this because I strongly believe in the Constitution, I strongly oppose the impeachment. I worry about the weaponization of impeachment and it could be used in other cases."

"I join James Madison who was very concerned that using open-ended phrases could create a way in which Congress should have too much power over the president," he said. "I join Alexander Hamilton who said the greatest danger is when impeachment turns on the number of votes each party can get. So I'm there to try to defend the integrity of the Constitution. That benefits President Trump in this case."

The segment turned personal several times when Toobin drilled Dershowitz on why he is defending Trump but not acting like he is on Trump's defense team.

"He absolutely is entitled to the best constitutional defense he can get," Toobin said. "What he's not entitled to is Alan pretending like he's some sort of neutral observer instead of what he is, which is Donald Trump's lawyer. For some reason, you don't want to admit that, and that's -- that's up to you."

"Look, let me be clear. I'm an advocate. I'm an advocate against impeachment, but I'm politically neutral. That is I would make the same argument if it was a Democrat or Republican. I don't let my political preferences interfere with my constitutional analysis," Dershowitz shot back.

"Hillary Clinton didn't behave this way," Toobin said.

"I would do it for Hillary Clinton if she did behave this way, if she did behave this way," Dershowitz said.

"Well, you know, we're into like magical hypotheticals here," Toobin responded.

Toobin, calling himself "just some guy on cable," said he is bothered that Dershowitz continues to act like an outside observer.

"I'm just some guy on cable. You are going into the United States Senate and telling the senators how to vote. That to me is a very big deal. And what bothers me is that you are doing that pretending like you're some sort of outside, objective observer instead of Donald Trump's lawyer," Toobin said.

"No, I'm an advocate against impeachment. I'm an advocate against impeachment," Dershowitz said.

ANDERSON COOPER, CNN HOST: Alan Dershowitz joins us. He's professor emeritus at Harvard University, a former member of the O.J. Simpson legal defense team and a bestselling author. His latest book is titled "The Case Against Removing Trump".

Also joining us, another bestselling author and our chief legal analyst, Jeffrey Toobin, and a former student of Professor Dershowitz's.

Professor, so, what exactly is your role here?

You're going to be delivering arguments on behalf of the president on the Senate floor talking about the Constitution. You say you're not a formal part of the legal team. How so?

ALAN DERSHOWITZ, PROFESSOR EMERITUS, HARVARD LAW SCHOOL: Well, I've been asked to prepare and deliver the case -- the constitutional case against impeachment that benefits the president. It's the same argument I would have made if Hillary Clinton had been elected and she were being impeached. It's similar to the arguments I made when I testified as a witness against impeachment of Bill Clinton and when I consulted with the Bill Clinton legal team.

I'm there only to argue about the constitutional criteria for impeachment, which I've written about extensively, and why these articles don't rise to the level of an impeachable offense. I will go into the history of the formulation in the Constitution and the history of how these words came to be, and leave it to others to argue the facts, to make strategic decisions about witnesses. That's not within my jurisdiction.

JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Alan, why are you playing these semantic games? Whose side are you on? I mean, you're part of the defense team. Why? Are you embarrassed?

DERSHOWITZ: You sound like my mother when I said I was challenging --

TOOBIN: I look like your mother, too.

DERSHOWITZ: Well, you wish.

(LAUGHTER)

DERSHOWITZ: Well, I said, I said that I was defending the right of Nazis to march through Skokie. And she said to me, son, are you for the Jews or are you for the Nazis? I said, I'm for the Constitution.

And she said, I'm your mother, don't tell me that, you have to pick sides. The Jews or the Constitution. Look -- or the Nazis?

(CROSSTALK)

TOOBIN: That's very interesting, but what side are you on in the impeachment case?

DERSHOWITZ: I'm on the side -- I'm on against -- I'm against impeachment. I'm clear about that.

I think it would be unconstitutional. It would set a terrible precedent for this president to be impeached for these alleged articles of impeachment.

So, I feel very strongly. I will make a strong argument against impeachment.

But I'm not part of the regular team that will be making strategic decisions and participating in questions about whether there should be witnesses or not. That's going to be left to others. I have a specific role.

COOPER: Are you getting -- how does it -- just specifically how -- do you get paid for this? How does that work?

DERSHOWITZ: Well, if -- that hasn't been discussed. But if I were to be paid, all the money would go to charity. I will not take a single penny, a payment --

COOPER: OK.

DERSHOWITZ: -- that I would keep based on what I'm doing.

I'm doing this because I strongly believe in the Constitution, I strongly oppose the impeachment. I worry about the weaponization of impeachment and it could be used in other cases.

I join James Madison who was very concerned that using open-ended phrases could create a way in which Congress should have too much power over the president.

I join Alexander Hamilton who said the greatest danger is when impeachment turns on the number of votes each party can get.

So I'm there to try to defend the integrity of the Constitution. That benefits President Trump in this case.

COOPER: Yes. Well, listen, I think anybody -- everybody should have the best defense possible on -- in any courtroom.

Jeff Toobin, what do you make of Professor Dershowitz's argument about the Constitution not --

TOOBIN: I think it's wrong. I mean, Alan's position, and I don't want to mischaracterize it, is that a president -- that impeachment should only apply to criminal offenses.

DERSHOWITZ: No, no, that's not my position.

TOOBIN: All right. Why don't you say what it is, because I don't want to mischaracterize it.

DERSHOWITZ: OK, my position is clear, that the Framers said treason, bribery and other high crimes and misdemeanors. Other refers to matters that are close in kind. And Professor Tribe, by the way, agrees with me on this part of the analysis.

So, the official (ph) offenses, they don't have to be specific criminal offenses but they have to be criminal-like, they have to be like treason, they have to be like bribery.

COOPER: So abuse of power is not -- is not a high crime?

DERSHOWITZ: No. No, abuse of power was one of those things mentioned by the Framers as a reason why we need impeachment but then rejected. It was widely discussed. It could easily have been accepted as one of the constitutional criteria.

TOOBIN: That's not true, Alan.

DERSHOWITZ: Let me give you another example. Let me give you another example.

TOOBIN: All right. Let me just -- let me just talk for a second. I mean --

DERSHOWITZ: Yes.

TOOBIN: Federalist 65, Alexander Hamilton, which you --

DERSHOWITZ: Sure.

TOOBIN: -- you write about --

DERSHOWITZ: I do.

TOOBIN: -- he specifically says abuse of or violation of some public trust is why -- is an impeachable offense. And it also makes sense.

DERSHOWITZ: No, no, he doesn't say that. He doesn't say that. He says that's why we have impeachment and that's why crimes --

TOOBIN: OK.

DERSHOWITZ: -- like treason and bribery are abuses of power. And if they are abuses of power, but the criteria have to be met.

Let me give you an example. Madison in calling for impeachment says we need to make sure a president doesn't become incompetent. That's a good reason. But then when the criteria were debated, incompetence was not included because it was too broad. We needed to amend the Constitution to include that.

If you want to include the abuse of power, amend the Constitution. It won't get ten votes in Congress because half the presidents of the United States have been accused by their political opponents of abuse of power. It's much too open ended and too broad and it would turn us into a parliamentary democracy in which Congress has too much power over the president.

COOPER: What about violating the public trust?

DERSHOWITZ: That's not an impeachable offense. It could have been. They discussed it. But they didn't put it in the Constitution.

They put in crimes that violate the public trust, that is treason and bribery violate the public trust. And if there were other crimes like it, they would violate the public trust.

(CROSSTALK)

TOOBIN: But as you know, Alan -- as you know, Alan, there was -- there was no federal criminal code in the late 18th century.

DERSHOWITZ: That's why I say you don't need specific crimes. You need criminal-like behavior. Everybody knew what bribery was. Treason is defined in the Constitution.

And if somebody -- and here I disagree with Trump -- if somebody were to murder somebody, by the way, we did have a vice president who did murder Alexander Hamilton while he was vice president and he wasn't impeached because in those days, a duel, even though it was illegal was not regarded as murder.

Look, I just think --

(CROSSTALK)

COOPER: So, Jeff -- let me let Jeff talk a little bit.

Jeff, Jeff -- what do you think the scope of high crimes and misdemeanors is? And how much is open to interpretation? TOOBIN: Well, it is of course open to interpretation, like any

provision of law. You know, they don't cover every circumstance. But the point of impeachment is misconduct and bad conduct that only a president can do.

Alan, you and I can't withhold aid from the Ukraine to advance our political interests. Only the president --

DERSHOWITZ: And neither were we -- neither were we elected.

TOOBIN: Let me finish, let me finish, Alan.

DERSHOWITZ: Sure.

TOOBIN: Only the president --

DERSHOWITZ: I agree, I agree.

TOOBIN: -- has the power to abuse his power in that way.

DERSHOWITZ: I agree.

TOOBIN: And the idea that the only remedy for that is to have an election down the line, this is so far outside what we expect of the presidency. And it is in violation --

DERSHOWITZ: I agree. Look, I agree with all that, but the Framers didn't make it an impeachable offense and they could easily have done it.

Jeffrey, let me ask you one direct question. You admit these are arguable points. Don't you think it important for the president to have constitutional lawyer like me making those points in a nonpartisan way, in a way I would have been making them for Hillary Clinton and introduce a nonpartisan constitutional element into the discussion?

COOPER: Let me -- I --

DERSHOWITZ: They can accept it or they can reject it. They can listen to your argument. They can listen to mine...

COOPER: We're talking tonight about the impeachment case against the president, as well as the case against that case, the constitutional arguments for and against, the politics, as well as new documents coming to light. To that specific point, we'll hear more from Lev Parnas shortly.

Back now with Jeff Toobin and Alan Dershowitz, who right before the break asked Jeff whether the president, in fact, deserved to have a topnotch attorney, such as Alan Dershowitz, exploring constitutional questions and issues during the trial.

What about that, Jeff?

TOOBIN: He should -- he absolutely is entitled to the best constitutional defense he can get.

What he's not entitled to is Alan pretending like he's some sort of neutral observer instead of what he is, which is Donald Trump's lawyer. For some reason, you don't want to admit that, and that's -- that's up to you.

But you are sort -- you are pretending that there is some sort of perfect constitutional sweet spot. It doesn't have to be a crime but it can't be simply being a bad president, that there is some magical area in there that is an impeachable offense.

And I think straight forwardly that abuse of power, it's -- the Framers recognized it, that's what's the issue in this case, and the senators are perfectly capable of determining whether what the president did is a violation of his oath.

DERSHOWITZ: Well, that's like saying a judge is perfectly capable of determining something without an advocate on any side.

Look, let me be clear. I'm an advocate. I'm an advocate against impeachment, but I'm politically neutral. That is I would make the same argument if it was a Democrat or Republican. I don't let my political preferences interfere with my constitutional analysis.

Look, Jeffrey, it would be good if you presented your argument on behalf of the Democrats. You're partisan on that side. They would hear arguments from you. They would hear arguments from me.

But I think the Senate and the country are helped when they hear from somebody like me who is a liberal Democrat, who has always voted Democrat, who has strong views on impeachment. I had strong views even when Nixon was impeached. Although I favored his impeachment, I urged the ACLU not to take a position, but instead to defend his civil liberties when he was named an unindicted coconspirator. I took the same position when Bill Clinton was impeached and I'm taking the same position now.

I think it's very valuable for the Senate to hear that kind of point of view and then let it make its decision.

TOOBIN: But you keep invoking --

DERSHOWITZ: Look, I wish we had a nonpartisan --

TOOBIN: -- you keep invoking --

DERSHOWITZ: Yes.

TOOBIN: -- like I would do this for Hillary Clinton.

Hillary Clinton didn't behave this way. This is a case --

DERSHOWITZ: I would do it for Hillary Clinton if she did behave this way, if she did behave this way.

TOOBIN: Well, you know, we're into like magical hypotheticals here.

DERSHOWITZ: I'm just saying -- no, I'm just saying I'm not partisan. I don't take -- take my cases based on whether it's a Democrat or a Republican. I pass the shoe on the other foot test.

No matter what it is, if the same facts were for a Democrat or a Republican, I would make the same arguments. I don't think that's true of all of my colleagues, or of all of the folks on CNN --

TOOBIN: Well, I can't --

DERSHOWITZ: -- or on Fox or anybody else.

TOOBIN: -- speak for anyone but myself.

DERSHOWITZ: Well --

TOOBIN: All I'm talking about is the facts here and the rule in the Constitution.

And the rule in the Constitution which I have always understood in which I think is by far the majority view, notwithstanding your view, is that abuse of power, a president doing something is not a violation of the criminal law but a serious and, you know, threatening use of presidential power. That's exactly why we have high crimes and misdemeanors.

DERSHOWITZ: That's one issue here. Your view, and my view, the Framers agreed with my view, not yours.

They could easily have put abuse of power into the criteria for impeachment. It was discussed. It was never accepted.

Let the Senate hear our points of view.

TOOBIN: But I --

DERSHOWITZ: But don't criticize me for stating my position and don't say I've changed, Jeffrey.

TOOBIN: I don't know whether you've changed -- I don't know whether you've changed --

DERSHOWITZ: I've been completely consistent since 1973. I have changed not at all. The big rap on me is that I don't change, that I have a small mind. I'm the hob-goblin of small minds because I'm so consistent.

TOOBIN: I think you have a very big mind.

DERSHOWITZ: But I never changed my views on impeachment.

TOOBIN: But I'm just some guy on cable. You are going into the United States Senate and telling the senators how to vote. That to me is a very big deal.

DERSHOWITZ: It is.

TOOBIN: And what bothers me is that you are doing that pretending like you're some sort of outside, objective observer instead of Donald Trump's lawyer.

DERSHOWITZ: No, I'm an advocate against impeachment. I'm an advocate against impeachment.

TOOBIN: Why don't you want to say his name? You keep saying like --

DERSHOWITZ: Because --

TOOBIN: You know, that's who you are. You're his lawyer.

DERSHOWITZ: I am not part of the strategic legal team. I am a constitutional analyst. I want the impeachment to fail, I hope will fail.

COOPER: But it wasn't -- just for the record, it wasn't the Constitution who calls you up and asks you to do this, it was -- it was the White House and President Trump.

DERSHOWITZ: No, obviously. First of all, I've been writing about it --

COOPER: Right.

DERSHOWITZ: -- and making this point on your show and others since well before anybody on the other side called me.

I think it's the right thing to do. I would be doing it no matter what the circumstances were and I think it's good for the American people.

COOPER: I have no issue -- I think -- I think everybody -- I mean, as I said, I think everybody should have the best defense possible. Jeff's point is you're working for the president, whether --

DERSHOWITZ: I'm working for the Constitution, the beneficiary this time happens to be the president. Last time, it was President Clinton. The time before, it was President Nixon.

COOPER: I hear what you're saying. DERSHOWITZ: I'm not working for anybody. What I'm doing is making a

constitutional argument on behalf of President Trump's team against impeachment.

COOPER: Professor --

DERSHOWITZ: Let's be very clear about that. I'm against impeachment. I think it would be a very bad thing to happen. I'm very happy that the Senate will hear my view.

Let me tell what my goal is --

COOPER: Do you think there should be witnesses, Professor?

DERSHOWITZ: -- I want to persuade some Democrats. I want to persuade -- if I can't persuade Democrats to agree with me, I will have failed. And I suspect I will fail. I don't think I'll persuade Democrats.

But I want Democrats with open minds to be persuaded and it would be very nice if Republicans with open minds would hear both sides. I would love to see a real trial that really involved people that hadn't made --

(CROSSTALK)

TOOBIN: With witnesses?

COOPER: So, that's my question. Do you believe there should be no witnesses if you want a real trial?

DERSHOWITZ: If there were witnesses for one side, there have to be witnesses for the other side.

COOPER: True.

DERSHOWITZ: You can't have witnesses only for the prosecution.

COOPER: So, do you think there should; be witnesses?

DERSHOWITZ: You would have witnesses for the defense.

It's up to the Senate. I would have no objection if after the opening arguments and closing arguments the Senate voted to have witnesses.

COOPER: No, no, but do you think there should be? Because I mean, your argument is you're arguing for the Constitution just as an outside observer because you're not on the legal team.

DERSHOWITZ: The Constitution doesn't speak to that. If they do call Bolton, then we have constitutional issues, because Bolton will want to testify, the president will invoke executive privilege, it will probably have to go to court and it will result in just the kind of delays --

COOPER: What about a Lev Parnas? DERSHOWITZ: -- in a trial that the Democrats did not -- oh, if -- let me tell you, if I were a lawyer, a real lawyer, I couldn't hope for somebody better than Lev Parnas to be testifying against my client. You couldn't imagine anybody who would be more open to effective cross-examination than a Lev Parnas. So --

COOPER: Why is that?

DERSHOWITZ: I don't -- I predict here Lev Parnas will not be called as a witness because he has so much baggage and so much liability. I don't think he'll be ever called as a witness.

TOOBIN: If he's such a terrible --

DERSHOWITZ: I think Bolton might be called, but he might not ever end up testifying, because it's not decision whether to testify. It's the decision of the court.

(CROSSTALK)

COOPER: Professor, what does it say -- right, what does it say that Rudy Giuliani and, according to Lev Parnas, President Trump were relying on Lev Parnas to be the face of this extortion scheme or this foreign policy scheme or this just whatever --

DERSHOWITZ: It says there should be an investigation and if there is any criminal conduct, it should be charged. It also may lead people to decide to vote one way rather than another, but that doesn't rise to the level of an impeachable offense. And it's not even charged as part of the impeachable offenses.

So, you know, we can disagree and agree. There's a lot we'll agree about. We'll agree about what went on with Lev Parnas and all of those people is very, very disagreeable, but you have to ask a distinction between political sins, crimes and impeachable offenses. And those are the distinctions I want to keep in the forefront.

I'm going to make my argument. I'm not telling the Senate what to do. I am presenting an argument. I hope they accept my argument.

COOPER: I guess --

DERSHOWITZ: My goal would get some Democrats to accept my argument. I would love to see more bipartisanism in the impeachment process as both Hamilton and Madison wanted.

COOPER: Because I'm not a law student at all, so correct me where I'm wrong here. But it says high crimes and misdemeanor in the Constitution, yes?

DERSHOWITZ: Yes.

COOPER: Does it spell out what a high crime and misdemeanor is?

DERSHOWITZ: No, it spells out what treason is.

COOPER: So, why are you alleging that you know what a high crime and misdemeanor is?

[20:25:00]

DERSHOWITZ: Because I've gone back and I've read all the debates and I've read all the history and I've read the words of the Constitution.

COOPER: So, you're interpreting the history --

DERSHOWITZ: It doesn't say -- yes --

COOPER: It doesn't say --

DERSHOWITZ: And I'm presenting -- I'm presenting an interpretation. You left out one word. It says other high crimes and misdemeanors. The other referring back to bribery and treason and high crimes and misdemeanors has a meaning.

We all agree about what high crimes mean. Clinton was wrongly impeached because he committed a low crime, not a high crime.



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