During an interview with Chris Wallace on "FOX News Sunday," Alan Dershowitz, a member of President Trump's legal team for his impeachment trial explained his shifting position on whether or not a president has to commit a crime to be impeached.
Wallace played a clip of Dershowitz discussing President Bill Clinton’s impeachment in 1998 in which Dershowitz argued that "if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need technical crime."
Wallace also cited Alexander Hamilton who said about impeachment: "The subjects of its jurisdiction are those offenses which proceed from the misconduct, misconduct of public men, or in other words, from the abuse or violation of some public trust."
"I've been immersing myself in dusty old books, and I’ve concluded that, no, it has to be a crime, it doesn’t have to be a technical crime," Dershowitz said, saying that his legal opinion had changed. "That’s what scholars do—that’s what academics do."
"And, remember in 1998, the issue was not whether you need a crime because President Clinton was charged with a crime. He was charged with perjury."
CHRIS WALLACE, FOX NEWS ANCHOR: Joining us now, a member of the president's defense team, Alan Dershowitz, professor emeritus at Harvard Law School and author of the new book "Guilt by Accusation."
Professor, the Democratic House floor managers used their entire 24 hours to make their case against President Trump. How do you think they did?
ALAN DERSHOWITZ, IMPEACHMENT DEFENSE TEAM MEMBER: I think they presented the strongest case they could present on their facts, but they didn't come close to alleging impeachable offenses.
Remember the Constitution requires treason -- there's no treason. Bribery, there's no allegation of bribery. Other high crimes and misdemeanors, which means other high crimes and misdemeanors that are akin to treason and bribery. They completely failed to meet that high constitutional standard, and therefore it would be unconstitutional to remove a president based on the allegations that were made against him in the articles of impeachment.
WALLACE: So, let's assume, for the sake of this discussion, that everything that the floor managers argued is true, that President Trump used the power of his office, the military aide, a meeting with Ukraine's president to pressure Ukraine to get -- to investigate, to get oppo research on his -- one of his main rivals for 2020, Joe Biden. Assuming, just for this argument, that all of that is true, you're saying it's still not an impeachable offense?
DERSHOWITZ: Well, the defense team tomorrow will show that it's not true, that many of the issues that were presented are -- were presented incompletely. Remember, there are three things that the Senate has to decide. One, is there sufficient evidence of what they claim? Two, does it constitute a high -- does it constitute, first of all, an abuse of power? And third, does abuse of power constitute impeachable offenses?
But the legal argument is that since they didn't allege any impeachable offenses, since they only alleged abuse of power and obstruction of Congress -- and those are vague, open-ended criteria of exactly the sort the Framers had rejected back in the Constitutional Convention -- that yes, even if the factual allegations are true, which are highly disputed in which the defense team will show contrary evidence, but even if true, they did not allege impeachable offenses. So, there can't be a constitutionally authorized impeachment. That's the legal constitutional argument.
Now, obviously, lawyers always --
WALLACE: Let me -- let me interrupt if I can, sir --
WALLACE: -- because I want to press on the question --
DERSHOWITZ: Sure, please?
WALLACE: -- of the constitutional argument.
You base that argument in large part, in prior interviews, on the case made by former Supreme Court Justice Benjamin Curtis in the impeachment trial of President Andrew Johnson back in 1868.
Briefly, what do you think is the argument that Justice Curtis made that's so important here?
DERSHOWITZ: What he argued is that when you look at all the provisions in the Constitution regarding impeachment that, clearly, the Framers intended that the criteria be, high crimes and misdemeanors, that is existing criminal statutes.
Now, I don't think he meant that, for example, if a president bribes somebody but the bribery occurred outside of the statute of limitations, or outside of the United States, so that he couldn't technically be prosecuted, that that would necessarily mean he couldn't be impeached. But the conduct has to be criminal in nature. It can't be abuse of power. It can’t be obstruction of Congress.
Those are precisely the arguments that the Framers rejected. Remember, one of the Framers introduced an argument saying that maladministration -- which was a common law in England -- a ground for impeachment, should be included in the Constitution, and Madison said, if you do that, you’re going to turn the United States republic into a parliamentary-style democracy like in Britain, where the president serves at the pleasure of the legislature. And they didn't want that.
WALLACE: But --
DERSHOWITZ: They rejected that. They instead imposed very stringent criteria for impeachment that haven't been met in this case.
WALLACE: I want to argue this with you a little bit because --
DERSHOWITZ: Sure, please --
WALLACE: -- it seems to be are two -- excuse me, two problems with your argument about the Johnson impeachment trial. First of all, Johnson had clearly broken the law, the Tenure of Office Act when he fired his own secretary of war.
And secondly, I look back at all of the arguments made by the senators who decided to vote to save -- because he was only saved by one vote by the Republican refusance. They didn't talk about that at all. That wasn't the argument that was key to them, whether or not the impeachable offense was a crime. What some of them argued that the law that he had broken was unconstitutional. Some argued who would replace him.
But the specific argument by Justice Curtis that you keep citing was not a factor.
DERSHOWITZ: Well, Professor Bowie at Harvard Law School who wrote a piece about this in the Harvard Law Review Forum takes exactly the opposite position. He's a historian.
And he looked at the debates and he says that among the seven senators who dissented, Republicans who hated Johnson, but decided that if you allowed these grounds for impeachment to go forward, it would undercut the Constitution. He said several of them did cite and refer to the argument.
And one of them said, if you allow crime to be defined in the bosom of every senator, as distinguished from in the law books, you would be inviting, allowing impeachment to become regularized as a political tool.
WALLACE: Let’s --
DERSHOWITZ: So, respectfully, Chris, I disagree. Those Republicans did look at Curtis and one of them said, quote, Curtis gave us the law and we followed it.
WALLACE: Well --
DERSHOWITZ: So I do think Curtis' arguments are substantial. But even if you reject Curtis’ arguments, you then have to come and say that abuse of power, which virtually every presidents since Washington has been accused of --
WALLACE: Let me --
DERSHOWITZ: -- by political enemies, would be criteria, and it's not. Go ahead.
WALLACE: I don't mean to interrupt you but we have limited time and I want to talk to about the Framers, because you keep bringing them up.
DERSHOWITZ: Right, I do.
WALLACE: In Federalist 65 --
WALLACE: -- Alexander Hamilton, certainly one of the Framers, argues that a criminal offense is not essential to impeachment.
Let me put up what he says.
WALLACE: The subjects of its jurisdiction are those offenses which proceed from the misconduct, misconduct of public men, or in other words, from the abuse or violation of some public trust.
WALLACE: Another Founder, George Mason, brought up the case of a former British official in India who had been accused of mismanagement.
Again, in either of these cases is there any mention of breaking a specific criminal statute.
DERSHOWITZ: Well, let's start with mismanagement. Yes, that was a criteria in England and that was rejected by the United States. That was one of the elements that was introduced by the Framers and it was rejected by votes like nine to two --
WALLACE: But that's not true. George Mason is one of the people who came up with high crimes and misdemeanors --
DERSHOWITZ: I understand but he rejected --
WALLACE: -- to include -- to include things like misconduct and abuse of power.
DERSHOWITZ: No -- absolutely --
WALLACE: And then you have Alexander Hamilton --
DERSHOWITZ: Absolutely not.
WALLACE: -- who talked specifically about misconduct and abuse.
DERSHOWITZ: I will -- I will spend some time on the Hamilton matter in my talk.
When Clinton was being impeached, people who opposed Clinton’s impeachment cited the same quote as saying, no, no, no, that shows you have to narrow it, not broaden it. What he was saying is the subjects of the jurisdiction, namely high crimes and misdemeanors, treason, bribery, those are crimes that involve public people, they are political in nature, they are abuse of power.
Hamilton wasn't trying to expand the criteria from the constitutional criteria. He was actually trying to contract it, arguing that, in fact, in addition to having crimes like treason and bribery, you have to show that it involves a breach of public trust. I will lay this all out tomorrow very carefully in a very scholarly way.
WALLACE: I look forward to that, but I -- but I do want to point out that we want to listen to a couple of the people who in -- you bring up the Clinton impeachment trial who argued exactly the opposite of what you're arguing today.
Let’s listen to them.
(BEGIN VIDEO CLIP)
REP. LINDSEY GRAHAM (R-SC): It doesn’t even have to be crime. It’s just when you start using your office and you’re acting in a way that hurts people, you've committed a high crime.
DERSHOWITZ: It certainly doesn't have to be a crime. If you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don't need technical crime.
(END VIDEO CLIP)
DERSHOWITZ: Well, you don’t need a technical crime. You don't need a technical crime.
WALLACE: Professor Dershowitz, let me -- let me ask about this --
WALLACE: -- because when you argue that case, that what didn't have to be a crime in the Clinton impeachment, I find it very hard to believe that you had not studied the only other presidential impeachment in history, which was the Johnson impeachment.
So, suddenly discovering that the key issue is what Justice Curtis argued in 1860, you're too good a lawyer not to have studied that back in 1998.
DERSHOWITZ: Well, remember in 1998, the issue was not whether you need a crime because President Clinton was charged with a crime. He was charged with perjury --
WALLACE: But you just said -- we just put the sound bite up where you said it doesn't have to be a crime.
DERSHOWITZ: Well, I did say that then and I’ve done all the extensive research. I’ve been immersing myself in dusty old books and I’ve concluded that, no, it has to be a crime, it doesn't have to be a technical crime.
Now, remember that Congressman Nadler changed his view, Congressman -- then-Senator Schumer changed his view.
Larry Tribe back in 1998 said a sitting president couldn’t be prosecuted, now once Trump got elected, he said a sitting president can be prosecuted.
That's what scholars do, that's what academics do. We do more research, we need to find --
WALLACE: You talked about what lawyers do, which is depending on the fact -- facts of the case and the side they’re arguing, they find an argument to make.
DERSHOWITZ: Well, I’ve made this argument way, way, way before I was put on the -- given the role to argue the constitutional case. I made that argument in the article of "The Wall Street Journal", I made that argument --
WALLACE: Professor, I want to ask you one last question --
WALLACE: -- because we are running out of time.
A tape has just been discovered which appears to show a Giuliani associate Lev Parnas having a conversation with President Trump back in 2018 about then-U.S. ambassador to Ukraine, Marie Yovanovitch. Let's listen to this exchange.
DERSHOWITZ: Uh-huh, great.
(BEGIN AUDIO CLIP)
LEV PARNAS, GIULIANI ASSOCIATE: She’s basically walking around telling everybody, wait, he’s going to get impeached, just wait. It’s incredible.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Get rid of her. Get her out tomorrow. I don’t care. Get her out tomorrow. Take her out. OK? Do it.
(END AUDIO CLIP)
DERSHOWITZ: Perfect example of what is not impeachable conduct. The president has full authority to fire an ambassador for any reason he chooses to.
WALLACE: Let me just ask you -- this works better if I ask the question and then you answer it, Professor --
WALLACE: -- which is given the fact that President Trump says he doesn't know Parnas, and you can see what appears to be a discussion back and forth, and the fact that they're specifically discussing getting rid of Yovanovitch, the ambassador who was really holding up the effort to try to get Ukraine to investigate Biden and the Democrats, I’m not asking if it's an impeachable offense. Clearly, that conversation isn’t.
How damaging do you think that tape is?
DERSHOWITZ: Well, I only want to speak to what's an impeachable offense. I think we’re not talking here about political damage. That's exactly what voters ought to be deciding on. That's why the election ought to go forward, voters would have taken into account that tape, hear both sides of it, decide how to vote.
You acknowledge that’s not an impeachable offense and I would say that much of what was presented by the Democrats were not impeachable offenses. They were campaign ads designed to try to show that you should vote for a different candidate.
That's fine. Let's put it up to the voters, let's not destroy our heritage of our Constitution by expanding the criteria for impeachment beyond that which the Framers accepted.