- Alan Dershowitz, who is one of the team of attorneys who will defend President Donald Trump during the impeachment trial, set out his core argument in interviews with CNN and ABC News Sunday.
- Dershowitz will argue that abuse of power and obstruction of Congress — which are the offenses Trump was impeached for — are not actual crimes so can’t be the basis for removing a president from office.
- “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?” asked George Stephanopoulos of ABC.
- “That’s right,” Dershowitz replied.
- Senators will vote soon on the format Trump’s impeachment trial will take, with Democrats demanding that witnesses be called, and Republicans resisting.
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As the US Senate prepares for only the third presidential impeachment trial in history, one of the most high-profile and controversial members of President Trump’s legal team has laid out the core of the argument he will use to defend the president.
In interviews with CNN and ABC News Sunday, Dershowitz said that he would be reviving an argument used 151 years ago by the justice who defended Andrew Johnson, the first US president to be impeached.
Back then, former Supreme Court Justice Benjamin Curtis, who was Johnson’s lead counsel, successfully argued that the Founding Fathers had framed the US Constipation so that only “criminal-like” conduct could be considered legitimate grounds for removing a president from office, argued Dershowitz.
“(Curtis) argued successfully to the Senate that criminal-like conduct is required. That argument prevailed. I will be making that argument as a lawyer on behalf of the president’s defense team against impeachment. That’s my role. It’s very clear. I have done it before,” said Dershowitz, who is a professor emeritus at Harvard Law School, in an interview on CNN’s State of the Union.
—ABC News Politics (@ABCPolitics) January 19, 2020
Trump has been charged by the House of Representatives with abusing his power in seeking to pressure Ukraine to launch a criminal probe into Joe Biden, a Democratic rival for the presidency, and obstructing Congress in refusing to cooperate with the impeachment probe.
Dershowitz claimed that neither abuse of power nor obstruction of justice should be considered criminal — and he spelt out the full implications of the argument in an interview with ABC’s George Stephanopoulos.
“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?” asked the host.
“That’s right,” replied Dershowitz replied.
“When you have, for example, someone who is indicted for a crime, let’s assume you have a lot of evidence, but the grand jury indicts for something that’s simply not a crime and that’s what happened here,” he said.
“But the vote was to impeach on abuse of power, which is not within the constitutional criteria for impeachment and obstruction of Congress,” Dershowitz replied.
The US constitution states that the president can be impeachment for committing “high crimes and misdemeanors,” but the framers didn’t specify what they meant by the terms.
Critics of Dershowitz’s defense are arguing that the crimes the framers had in mind aren’t limited to those found in the statute books.
In an article in The Washington Post Sunday Laurence Tribe, a professor of constitutional law and former colleague of Dershowitz at Harvard Law school, quoted Alexander Hamilton, who wrote that high crimes and misdemeanours are “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
“Any number of such violations of the public trust — such as working with foreign governments in ways that make the president beholden to their leaders, or cooperating with those governments to bolster the president’s reelection — clearly must be impeachable even though they might violate no criminal law and indeed no federal statute at all,” Tribe wrote Sunday.
Dershowitz announced his appointment to Trump’s legal team Friday in a tweet, claiming he was “participating in this impeachment trial to defend the integrity of the Constitution and to prevent the creation of a dangerous constitutional precedent.”
He is one of the US’ best known legal figures, having participated in some of the most notorious trials of recent decades, and was part of the legal team that successfully defended OJ Simpson against murder charges in 1992.
His recent association with sex trafficker Jeffrey Epstein has attracted controversy.
Along with Kenneth Starr, whose appointment to Trump’s legal team was also announced Friday, he helped negotiate Epstein a controversial plea deal in 2007 that saw Epstein released after only a year.
Starr was also involved in the impeachment trial of Bill Clinton, the last president to be impeached.