Dershowitz and Levin: Constitution experts discuss impeachment

FPI / December 10, 2019

Excerpts on impeachment from Harvard law professor Alan Dershowitz’s Dec. 8 appearance on host Mark Levin’s Fox news program "Life, Liberty & Levin”.

Mark Levin: Should President Trump be impeached?

Alan Dershowitz: It would be unconstitutional for President Trump to be impeached on the current record. It would be an utter abuse of the power of Congress. The Constitution sets out four criteria for impeaching a president. Treason, bribery or other high crimes and misdemeanors. Unless one of those criteria is met, Congress does not have the authority to impeach, and if they do, their impeachment would be void. Alexander Hamilton said any act of Congress that is inconsistent with the Constitution is void. Now, Congress maybe can get away with impeaching because there won't be judicial review. But that doesn't mean they wouldn't be violating their oath of office. They would be abusing their power if they impeached President Trump on this record.

Mark Levin: Unconstitutionally, you say. I hear so-called legal analysts say impeachment is whatever the House says it is. And they quote Gerald Ford.

Alan Dershowitz: Right.

Mark Levin: And it's a purely political process. Did the framers give illimitable power to the House of Representatives in this regard?

Alan Dershowitz: Of course not. And Maxine Waters has said the same thing. And then she said there is no law. In other words, she is above the law. Congress is above the law. Congress may be able to get away with it, but this confuses what Congress can get away with, with what Congress is sworn to uphold. Any member of Congress who votes to impeach President Trump without a finding that he is guilty of treason, bribery or other high crimes and misdemeanors is violating their oath of office and abusing their power. Maybe they can get away with it, but they are acting in an unconstitutional fashion.

Mark Levin: There seems to be this idea, I was watching some of these law professors. Honestly, I fell asleep through half of it; I was watching some of these law professors the other day and they sounded like members of Congress. I'm just being honest about it. And they were talking about abuse of power. Talking about bribery and so for -- I was listening to this so I want to turn to you. This word “bribery” really has a specific meaning and it really doesn't have the meaning that many people seem to suggest it does. It doesn't mean everything and anything. It doesn't necessarily mean this. What does it mean?

Alan Dershowitz: There are four criteria. We know what treason means because treason is defined in the Constitution. Bribery. You know, we know it when we see it. When you pay a government official corruptly to perform an illegal act or an act that is motivated by money. But it can't operate when you're the president of the United States and you're conditioning or withholding money in order to make sure that a country isn't corrupt and you're asking them to investigate. That just doesn't fit any definition of bribery, common law definition of bribery, statutory definition of bribery. However you define the constitutional word bribery, it just doesn't fit. What they're trying to do is what the KGB under Lavrentiy Beria said to Stalin, the dictator. I'm not comparing our country to the Soviet Union. Just want to make sure it never becomes anything like that. Beria said to Stalin, “show me the man and I'll find you the crime.” And that's what some of the Democrats are doing. They have Trump in their sights. They want to figure out a way of impeaching him and they're searching for a crime. First, they came up with abuse of power. Not a crime, it's not in the Constitution. So now they're saying bribery, but they're making it up. There is no case for bribery based on even if all the allegations against the president were to be proved, which they haven't been, but even if they were to be proved, it would not constitute the impeachable offense of bribery.

Mark Levin: What about due process? I understand this isn't a criminal case. You have been involved in really some of the highest profile cases in the nation –

Alan Dershowitz: Right.

Mark Levin: -- during the course of your career. Nobody is saying that this is a criminal case, but we do have little things, you know, like the Magna Carta coming forward. The whole notion in the enlightenment of due process, you have a right to confront your accuser. You have a right to have witnesses, you have a right to present evidence. So much of this has been eviscerated, at least by the House Intelligence Committee and given a rubber stamp by the House Judiciary.

Alan Dershowitz: And the Judiciary Committee did it as well. They have four witnesses. Three of them represent the Democratic Party. And then only one witness was given to the Republicans and they pick a Democrat who voted for Hillary Clinton, Jonathan Turley, who did a very good job. But why do they get three witnesses -- in the Democrat -- and the Republicans only get one? Why not equality? You know, Alexander Hamilton said in Federalist Paper number 65, the greatest danger would be if impeachment turned on the number of people each party had. If impeachment turns on the fact that the Democrats now have a majority in the House, but not in the Senate, that would be a complete abuse of what the framers had in mind. Alexander Hamilton is misquoted all the time. He used the word political, but he didn't say the process should be political. He said the crimes, treason, bribery, high crimes, misdemeanor are political in nature, but the process should be nonpartisan and nobody should be impeached and removed unless there is an overwhelming bipartisan consensus. I'm not making that up. I'm quoting Congressman Nadler when Bill Clinton was being impeached. I opposed Bill Clinton's impeachment for the same reason that I oppose Donald Trump's impeachment. There was no widespread consensus. There was no clear high crime. What Bill Clinton committed was a low crime, a crime to protect his personal life, much like Alexander Hamilton, you know, when he was secretary of the treasury, he committed adultery and then he paid extortion money. But when the extortionist said, we're going to charge you with using government funds, he said no, no, no, no that would be a high crime using government funds to pay an extortionist. And he wrote an essay admitting his adultery, admitting his payment of extortion, but denying that he paid from government funds.

Mark Levin: Let me ask you a question. I want to go through some of these examples with you and get your take on this. More than one of the professors said this week -- and it's not just them, other people too -- that if this isn't an impeachable offense, this phone call, then there aren't impeachable offenses.

Alan Dershowitz: That's just nonsense.

Mark Levin: It's absurd. Let me ask you this, John Adams. He arrested and jailed journalists. Abraham Lincoln suspended habeas corpus, shut down 300 newspapers, Civil War, arrested and jailed journalists. Woodrow Wilson, a racist.

Alan Dershowitz: Right.

Mark Levin: A segregationist.

Alan Dershowitz: Right.

Mark Levin: Re-segregated the government.

Alan Dershowitz: Yeah.

Mark Levin: He locked up socialist opponents –

Alan Dershowitz: Right.

Mark Levin: -- and was -- locked up critical journalists, the Espionage Act of 1970. Alan Dershowitz: Right.

Mark Levin: FDR –

Alan Dershowitz: [unintelligible]

Mark Levin: -- interned a hundred thousand Japanese-Americans, upheld by the Supreme Court, by the way. Also, he used the IRS [unintelligible] Annenberg and the Philadelphia Inquirer and Gannett newspapers. Kennedy and the IRS and his opponents -- and by the way, not just -- I'm giving examples. LBJ; IRS, FBI, CIA; tapped the phones of his political opponent Barry Goldwater -- tapped the phones of his vice president, correct?

Alan Dershowitz: That's right.

Mark Levin: And we have Republican examples, too. Is this a joke that the phone call by Donald Trump is the worst example that these professors and others could come up with? “If that's not impeachable, nothing is impeachable.” Under their theory, every one of these men should have been impeached.

Alan Dershowitz: They have created open-ended criteria which bear no relationship to the words of the Constitution itself. And if President Trump is impeached, it will set a terrible precedent which will weaponize impeachment, and the next Democrat who gets elected will be impeached because they'll find an abuse of power. It's hard to find any president -- modern president, old president -- that can't be accused of abuse of power. I'll give you another example: Franklin Delano Roosevelt. He instructs his attorney general when they arrest German saboteurs, “I don't want these guys tried civilly,” even though one was a U.S. citizen, “and I want them electrocuted,” telling the attorney general how to try the case. Lincoln, much the same with the suspension of the writ of habeas corpus. Opponents of a political leader, particularly during times of crisis, can always find abuse of power. If you go through the lexicon of political opposition over the years, you will find the words “abuse of power” used by virtually every opponent of every president, and yet the other day when they had these hearings, all we heard about was abuse of power, abuse of authority, putting personal and partisan interests over national interests. How many foreign policy decisions have been made by presidents over the years in order to help them get reelected? If we start making that an impeachable offense, there'll be no presidents left, and we'll have the English system, which is what James Madison said we don't want. In the English system, the prime minister serves at the will of the Parliament. The minute the Parliament says, “We don't have any faith in you,” he's gone, vote of no confidence. That's exactly what we didn't want to empower the Congress to do in the United States.

Mark Levin: This is a great point. Didn't Madison even say this?

Alan Dershowitz: Yes.

Mark Levin: Isn't that why, when George Mason was talking about maladministration –

Alan Dershowitz: That's right.

Mark Levin: -- Madison said, “Well, now, wait a minute. We don't want him basically” -- the president -- “to be neutered by the House of Representatives.”

Alan Dershowitz: That's right, and we don't want him to serve at the will. We don't want a British parliamentary system. We want a republic, and a republic requires a strong president who has to run for reelection every four years. That's the ultimate protection. He has to run for reelection; he only now can serve two terms. If you want to amend the Constitution to include abuse of power, fine. We had to amend the impeachment provisions once because it didn't include incapacity. When Woodrow Wilson had his stroke, he couldn't govern, and there was no procedure for removing him, so, the 25th Amendment now creates a procedure. If you want to amend the Constitution to include abuse of power -- I'd be opposed to that -- then amend the Constitution, but don't make it up as you go along. I think Jonathan Turley had a great phrase. He said, “This is not improvisational jazz.” You can't just make it up. You have to look at the words of the Constitution, and the words of the Constitution are as clear as could be. Four criteria; if they're not met, Congress does not have the power or the authority legitimately to impeach a president. Now, I'm not a supporter of Donald Trump politically; I voted Hillary Clinton. You know what the original title for my book was? I eventually wrote a book called The Case Against Impeaching Trump; also, The Case Against the Democratic House Impeaching Trump. I started writing the book when it looked like Hillary Clinton would be elected president, and the Republicans said they were going to impeach her on day one. So, the original title for my book was The Case Against Impeaching Hillary Clinton.

Mark Levin: [laughs] So, you just changed the names.

Alan Dershowitz: Yeah, just the names, and I went through the book and changed some things. If I had written this book, The Case Against Impeaching Hillary Clinton, they would have built a statue to me on Martha's Vineyard. The liberals would love me, but now, because the same arguments are being used in favor of President Trump, who I didn't vote for, I'm a pariah among liberals and radicals and the left.

Mark Levin: Let me ask you about that soon, but I want to ask you this first. There's almost no talk about legislative tyranny. Can a legislature be tyrannical?

Alan Dershowitz: Absolutely, and they have been. Look, do you remember McCarthyism? That was legislative tyranny.

Mark Levin: Is this legislature today tyrannical?

Alan Dershowitz: It could be, and if they impeach the president, and they deny due process, they will be acting tyrannically. I believe that if they impeach the president on this record, they will be abusing their power and their oath of office. Maybe they can get away with it, but that doesn't mean it's the right thing. Mark Levin: When we return, I'm going to ask you this. Doesn't the president have a right to confront -- or his lawyers -- to confront, if it gets to the Senate and a trial -- the accuser who began all this, the so-called whistleblower? Or are we going to actually impeach a president and have a trial without him ever knowing officially who his accuser is? I'm going to ask you about that when we return. Ladies and gentlemen, don't forget, you can watch me most weeknights on Levin TV. You can join us by calling 844-LEVINTV, 844-LEVINTV, or go to BlazeTV.com/Mark to sign up, BlazeTV.com/Mark to sign up. And later in the program, we're going to talk about this fascinating book, as well, that Professor Dershowitz has written in his own defense. We'll be right back.

Mark Levin: Professor Dershowitz, does the president, through his counsel -- a Senate trial, let's say, takes place -- have a right to confront his accuser?

Alan Dershowitz: Absolutely. It goes back to the Magna Carta. There's no concept of due process, which doesn't allow an accused to confront his accuser, whether it's in a civil context, criminal context, a political context, any context, you have to be able to confront your accuser. You have to know who your accuser is. We don't believe in anonymous accusations in this country. Ultimately, the chief justice will have to rule on that because he presides over the trial in the Senate of only the president. Anybody else who's impeached, you don't have the chief justice. They introduced a judicial element to make sure that all three branches of the government are involved in the removal of a president. So I think it would be inconceivable that you could have a trial in the Senate without the president being able to confront his accuser.

Mark Levin: Now, you're an expert on a lot of this and you've looked at the history I've looked at the history. And they were concerned, the framers, that you could have an out-of-control House.

Alan Dershowitz: Sure.

Mark Levin: You know, it turns over every two years. And they looked at the Senate and they set up this elaborate system, didn't they? So the trial's in another body, it's in the Senate; you need two-thirds supermajority vote to convict. It's going to be overseen by the chief justice of the Supreme Court. So there was some concern when they were debating about impeachment. First, they didn't want it, some of them, then they said we need to have it, but to have a check on the House of Representatives, wasn't there?

Alan Dershowitz: No question. We were terrified. The framing foundation leaders, terrified of a runaway democracy. That's why they originally had a Senate that was not popularly elected. It was essentially appointed by the state legislatures who needed an amendment to change that. But the senators were supposed to be the wise old men, all men in those days, the wise old men who would serve as a check even within the legislative branch on the elected members of the House of Representatives. There was a debate whether or not perhaps to put the removal of a president in the hands of the Supreme Court but some of the framers said, no, that wouldn't be right, because you can try a president after he's impeached for the crimes. And if you did that, it wouldn't be fair to have the same institution the courts try him after they've already impeached him. So they decided to put it in the hands of the United States Senate.

Mark Levin: I want to ask you about this issue of subpoenas. Through most of our history, if Congress issued a subpoena or the equivalent of a document request or a witness request, the two branches would work it out, somehow, someway. We've now reached a point where we have a committee of Congress, the House Intelligence Committee. Before that, the House Judiciary Committee, not even the whole House, not even the whole Congress. We issued a subpoena, Mr. President, and you better respond to it you better give us everything we ask, no objections. You better give us your White House counsel, you'd better give us whatever we want. We don't want to hear attorney client privilege, executive privilege, separation of powers. You give us what we want. Is that what the Constitution provide?

Alan Dershowitz: No, quite the opposite. I had a case many, many years ago where they subpoenaed my client in front of Congress to reveal lawyer-client privilege information. And the committee said there's no such thing as lawyer-client privilege in front of Congress. We prevailed. We won. We took it to the courts. The courts, according to Hamilton Federalist 75, are the umpires between the excesses of the legislative branch and the executive branch. When the legislature issues a subpoena, a president's absolutely entitled to say, no, go to court. You have to get authority from the court. I'm claiming privilege. If the claim of privilege is too broad, as one of the judges recently held, then you lose. But you can't be impeached for invoking the separation of powers in our system of checks and balances that would punish essentially exercising your own constitutional authority under Article 1, 2 and 3 of the Constitution. We have a three-part system of government, equal -- coequal branches, separate branches and the courts and the umpires.

Mark Levin: But what I seem to be hearing today from these committees and these professors is we don't have three coequal branches of government. We want Trump out. So today, we have one all-powerful branch of government. Tomorrow, maybe we'll have coequal branches of government. But the fact that the president asserts his rights and he's not the first president to do this.

Alan Dershowitz: No.

Mark Levin: He's not the first president take it to court, he's not defying a court order; he's defying a request, a demand by another elected branch and saying, “you know what I'm going to duke this out with you.” And they're saying “impeachable offense. There's another count.” Has this ever been done before?

Alan Dershowitz: No. And it's extraordinarily dangerous to do that because it denies the executive branch the power granted to it under the Constitution as a coequal branch to challenge legislative excesses. When I was growing up, it was the liberals like me and the civil libertarians who were opposed to congressional overuse of subpoenas. It was called the McCarthy period. And we civil libertarians constantly challenge Congress, took them to court, won a lot of those cases to eliminate the excesses of legislative power during the McCarthy period. Today the shoe is on the other foot and it's the people on the left who are saying “legislative power, legislative power, no executive power” to everything that's a season. And the Constitution was written for all seasons, not for just today or for the McCarthy period.

Mark Levin: Where have all the civil libertarians gone?

Alan Dershowitz: They have disappeared. The civil libertarians, for the most part, have come from the left. The ACLU has abandoned its mission. I was on the national board of the ACLU. I was a proud member of the ACLU during the Nixon impeachment, which I favored. I said the ACLU should be in there defending Nixon's procedural rights. I was one of those who advocated the ACLU allowing Nazis to march through Skokie. My mother was furious at me. She said, “whose side are you on? The Jews and the Nazis?” I said, “Mom, on the side of the Constitution;” she said, “I'm your mother, don't talk to me that way. You've got to pick your side: the Jews or the Nazis.” No, you pick the Constitution and the civil libertarians are gone. The ACLU is dead in the water. They should be deeply involved in this issue, defending the rights of the president to due process, free speech. You know, they're claiming now that the president committed an impeachable offense by tweeting and writing and talking about how he disagreed with the ambassador to the Ukraine. Look, I think she's a great woman. I don't agree with the president, but I certainly defend his right to criticize an ambassador and to fire an ambassador. The President has a right to call an ambassador and say, “you know, you contributed a million dollars to my last campaign. I got somebody now who's willing to contribute $2 million. You're gone. He's in.” That's how ambassadors get appointed. The idea that we start constraining the president's power to discuss ambassadors or to fire ambassadors is inconsistent with the Constitution.

Mark Levin: Professor Dershowitz, you have said that if the president is impeached on this record, it's unconstitutional.

Alan Dershowitz: That's right.

Mark Levin: Now, does the president have recourse to the courts at that point? Does he recourse to the courts if there's a trial and a conviction, which is very unlikely?

Alan Dershowitz: [affirmative]

Mark Levin: Or is there no recourse?

Alan Dershowitz: The answer is crystal-clear. We don't know. There are arguments on both sides. Alexander Hamilton says in Federalist 75 “any act of Congress that's in violation of the Constitution is void,” and he talks about judicial review. On the other hand, the Constitution says, “The House shall be the sole” and “The Senate shall be the sole.” There are two justices, Justice White and Justice Souter, who, in dissent, have suggested that in an appropriate case, there would be judicial review. For example, what if the Senate were to say, “You know, we don't have two thirds. Let's just change it to 55 percent?” There would clearly be judicial review there. The president wouldn't leave. The president would say, “You need two thirds. You don't have two thirds. I'm not leaving.” Or what if the head of the Senate, let's assume, was in control today of the Democrats and said, “We don't like the chief justice. We're not going to have him preside?” You can't just violate the Constitution. I don't see any difference between not letting the chief justice preside on the one hand or reducing the vote from two-thirds to 55 percent and ignoring the four criteria in the Constitution. They're all unconstitutional.

Mark Levin: But this idea of judicial review of impeachment is a minority view, right?

Alan Dershowitz: Very much a minority view. It would not be a minority view if Hillary Clinton were being impeached. The same left people who today are attacking my position would be espousing my position if Hillary Clinton were being impeached. How do I know that? Because many of them took that view when Bill Clinton was being impeached. They failed what I called the shoe-on-the-other-foot test. If you're going to be a serious academic, you always must pass the shoe-on-the-other-foot test. That is, you must say the same thing you would be saying if the political dimensions were shifted, if it were a Democrat who were being impeached by the Republicans. Unless you can pass that test, you're not a legitimate academic.

Mark Levin: Would it then, therefore, be your position now that since the House of Representatives has denied this president what past presidents who faced impeachment inquiries have had -- basic fundamental fairness in terms of witnesses and representation; transparency, not secret testimony in a dungeon or wherever it's taking place -- would it be your argument that he has a case now?

Alan Dershowitz: I think it would be a mistake to bring the case now. I think he'd have a better shot at getting judicial review if he waited and established a better record and found a clearer violation. Right now, we don't even have an impeachment. If the impeachment goes forward without any of the four criteria, that might be an appropriate time, or if he were to be convicted, which I don't think is going to happen. So, I think it's much of a hypothetical at this point.

Mark Levin: The House has basically made up the rules as it goes along. It has abandoned the rules that were in place under the Andrew Johnson impeachment; it's clearly abandoned the rules that were in place under Peter Rodino and the Democrats. It's abandoned the rules that were in place with Henry Hyde and the Republicans and Clinton. There's no president in American history that's been treated like this, is there?

Alan Dershowitz: No, and of course, the House does have the authority to make up its rules as they go along as long as the rules comply with basic due process. Due process is part of the Constitution. Every citizen, from the lowliest to the president of the United States, has the right to be treated fairly and has a right to a process that's due him. So, there are limits to how far Congress can go in making it up as they go along.

Mark Levin: You said something earlier that causes me to wonder. This process is so partisan, so abusive, that it's going to have an impact, and is having an impact, on our culture and on the greater body politic, that the myopic thinking of Nancy Pelosi and the Democrats right now has pulled all the Republicans together, because I've never seen the Republicans this united. You can see, whether it's watching news on TV or wherever it is, they are driving a wedge in this country, honestly, that I haven't seen really since the riots of the 1960s and so forth. Do you agree or disagree?

Alan Dershowitz: No, I agree. I grew up during McCarthyism; I came of age during the Vietnam War. So, I've seen division, but I've never seen division where people can't talk to each other. People have to have separate Thanksgivings and Christmases and Hanukkahs. You can't talk to your relatives or friends. I am a pariah on Martha's Vineyard because I take views that are inconsistent with the majority view. I've never seen a situation where there's been so much division. The Clinton impeachment caused division, but not like this. And, look, there's a lot of fault to go around. I think the president is divisive. He uses words that divide, as well. He fights back; he is what he is. He was elected -- everybody knew who he was. He didn't surprise anybody with what he's done in office. But there's so much division on both sides that I hope we can begin to heal, and I don't see the healing process being furthered by an impeachment. I think that will further divide the country.

Mark Levin: I think you've been wrongly described over the decades. I think I would describe you as a libertarian constitutionalist. Does that kind of work?

Alan Dershowitz: I think that's an absolutely accurate -- I'm a liberal civil libertarian libertarian.

Mark Levin: But you're a classical liberal.

Alan Dershowitz: I'm a classical liberal. And I want to bring classical liberals and classical conservatives together to fight the extremists on both sides, both of whom were denied due process, both of whom would deny free speech. I think we have to keep our Constitution sacred.

Mark Levin: You agree, though, that the hard left is on the ascendancy in the Democrat Party and the media and elsewhere?

Alan Dershowitz: Certainly in academic life, and that's the future. Today's students that are being propagandized by hard left teachers to diminish the importance of due process are our future leaders. That's my biggest concern.

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