Alan Dershowitz Clarifies A Point Made In The Trump Impeachment Trial

Harvard professor Alan Dershowitz, who's on the president's legal team, talks to NPR's Steve Inskeep about an argument made on the Senate floor that caused debate about limits of presidential power.

STEVE INSKEEP, HOST:

We have questions for Alan Dershowitz next. He is a Harvard emeritus professor who argued this week in the president's defense. Dershowitz drew attention for the case he made on the Senate floor. You will recall the president was impeached for demanding investigations of political rivals in Ukraine. The House managers - that is to say the prosecutors - say the president was trying to shape his own reelection bid by obtaining a televised announcement of an investigation involving Democratic candidate Joe Biden. Alan Dershowitz told senators the president shaping his own reelection is not impeachable conduct so long as the president himself feels his own reelection is in the public interest.

(SOUNDBITE OF ARCHIVED RECORDING)

ALAN DERSHOWITZ: Every public official that I know believes that his election is in the public interest. And mostly you're right. Your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

INSKEEP: Professor Dershowitz is on the phone. Good morning. Welcome back to the program. And we're waiting to hear professor Alan Dershowitz. Professor Dershowitz, are you still with us this morning? OK. We were hoping to hear professor Alan Dershowitz...

DERSHOWITZ: I am, yes.

INSKEEP: ...Who was joining us, we believed, from south Florida. He is the person who made the argument on the Senate floor - on the Senate floor involving impeachable conduct. Professor Dershowitz, are you with us now? OK. We're still not hearing professor Alan Dershowitz, so we'll just...

DERSHOWITZ: Hi, it's Alan Dershowitz, who's right here.

INSKEEP: ...There we go. Professor Dershowitz, can you hear me, sir?

DERSHOWITZ: I hear you fine. Yes.

INSKEEP: I am not hearing you, professor Dershowitz, but perhaps other people are. I'm going to pose the question here, and as you begin to answer, hopefully we'll be able to work out the line. Some people understood you to say the president can do anything to get reelected just by saying his reelection is in the public interest. Did you mean to say the president can do anything?

DERSHOWITZ: I'd not only didn't mean to say it. I didn't say it. I never said anything like that. In fact, in the beginning of my statement, I talked about how strongly I supported the impeachment of Richard Nixon. Obviously, Richard Nixon committed many crimes in an effort to get reelected. He thought his reelection was in the public interest. My response was to a question about quid pro quo. The question was, if a person does something completely legal, the president does something legal completely within his power, but he was slightly motivated, motivated in part by a desire to get reelected, would that turn that motive into a corrupt motive? And my answer was, no, it wouldn't turn into a corrupt motive. It would turn it into a political motive. But if he did something unlawful, if he did something improper, if he did something that violated the law, clearly a good motive would not serve as a justification. I gave as an example, for example, President Lincoln who called the troops back from the battlefield to go to Indiana to vote for the Republicans in Indiana. He was motivated in part by the public interest. He was motivated in part by his partisan interests. That clearly would not be an impeachable offense.

INSKEEP: Well, let me ask about that example, if I can, professor Dershowitz. You mention Lincoln allowing men to go home in order to vote, but don't we have a radically different set of facts with the current president? President Trump withholds military aid from a U.S. ally, violates the law in doing that according to the Government Accountability Office, demands a televised announcement that will be damaging to specific United States citizens. Are you really going to say he gets a pass for all of that as long as he feels his reelection is in the public interest?

DERSHOWITZ: I didn't say anything like that. And that's not what my statement was in response to. My statement was in response to...

INSKEEP: Well, let me ask you now. Does he get a - does he get a pass from all of that?

DERSHOWITZ: I was there as a constitutional lawyer making the constitutional argument. The managers made the argument that any political figure who does anything lawful motivated in part by a desire to be reelected could be charged with a crime and could be impeached. I was responding to that. If I had been asked your question, I would have turned it over to a member of the defense team that deals with the facts. I was there to make constitutional arguments, the constitutional argument that I think Lamar Alexander accepted last night when he said even if all the facts are accepted as true - and he accepted those facts as true - it doesn't rise to the level of an impeachable offense. My argument was that abuse of power is not within the term treason, bribery, other high crimes and misdemeanors. And I made a compelling argument...

INSKEEP: Well, now, if I may - if I may, professor, now...

DERSHOWITZ: ...Along that line. Yeah.

INSKEEP: If I may, professor, now I am the person asking the question, and I gave you the specific facts here, which you know very well. Are you going to say that - or would you say that by claiming he was doing all that in the public interest the president should get a pass?

DERSHOWITZ: If the president committed any criminal conduct or any impeachable conduct, it would not be a defense to that conduct to say that he did it in the public interest. Of course, not. Now it's up to the Senate to decide what the facts are. But my position was very clearly that if a president is charged with abuse of power or obstruction of Congress, that the charges should be dismissed. They are not within the constitutional criteria. They are much more similar to the kind of maladministration, which was a crime at common law, that was rejected by Madison for fear that it would give the Senate too much power and have a president serve at the pleasure of the Senate. That was my argument. I was there to respond to questions about my argument. I responded to the question about quid pro quo and motive. And it was wretched out of context to make it sound like I said something I don't believe. Of course, a president can be impeached.

INSKEEP: You're still - you're still making a rather - yeah. You're still making a rather narrow - you're still making a rather narrow definition of what's impeachable compared to some other scholars, who say it doesn't have to be a specific crime. Let me ask about that then. You're saying it...

DERSHOWITZ: Well, let me respond to that.

INSKEEP: Wait, wait, wait, wait. Forgive me, professor Dershowitz. I need to pose a question here.

DERSHOWITZ: Sure.

INSKEEP: If you're saying that it is a - that only a specific crime would be something that would be impeachable, let's say that a president found you personally, sir, standing in the way of his reelection. As people know, you associated with the late Jeffrey Epstein. You've said you're completely innocent of any wrongdoing there.

DERSHOWITZ: Right. I am, yeah.

INSKEEP: But would it be all right for the president, nevertheless, to have federal prosecutors go on television and publicly announce an investigation of your involvement with Jeffrey Epstein? Would that be not impeachable conduct, perfectly fine?

DERSHOWITZ: No. It would not be perfectly fine. It would be terrible. It would be awful. It would be immoral. It would be a good reason for voting against somebody. But it would not be impeachable because it's not within the constitutional criteria. It's not treason. It's not bribery. It's not high crimes and misdemeanors. In the middle of the 19th century, professor - dean of the Columbia Law School said the weight of authority, meaning scholars and judges, was all in favor of you needing a crime to impeach. Suddenly, the criteria changed when President Trump got elected. Now most scholars are arguing - in fact, virtually all scholars are arguing that you don't need a crime. In my opening statement...

INSKEEP: Got to stop you.

DERSHOWITZ: ...I disproved that. I showed that...

INSKEEP: OK.

DERSHOWITZ: ...You do need criminal-type behavior akin to treason and bribery. That's what it means when it says treason and bribery or other high crimes and misdemeanors.

INSKEEP: Professor Dershowitz, I'm afraid we're out of time, got to stop you there. Thank you, sir, really appreciate you taking the time, Alan Dershowitz.

DERSHOWITZ: Thank you. I appreciate your opportunity to clarify. Thank you.

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