Graham, Dershowitz say effort to dismiss articles of impeachment 'dead' as they prepare for trial

William Cummings | USA TODAY

Show Caption Hide Caption The Senate impeachment trial begins with articles move to the Senate The Senate impeachment trial of President Donald Trump has officially begun, with Chief Justice John Roberts presiding, and much yet to decide.

Two of President Donald Trump's leading defenders said Sunday that the Senate will not vote to dismiss the articles of impeachment against him, though both argued the president committed no impeachable offense, outlining what is likely to be the heart of Trump's defense in his trial.

Sen. Lindsey Graham, R-S.C., who is one of Trump's leading political backers on Capitol Hill, had said he wanted the impeachment process to "die quickly" when it reached the Senate. On "Fox News Sunday" he called the process a "partisan railroad job" but he said the effort to have the articles of impeachment dismissed before the trial is "dead for practical purposes."

"The idea of dismissing the case early on is not going to happen. We don't have the votes for that," Graham said, adding that the Senate impeachment trial will likely follow the format of the one for President Bill Clinton in 1999.

High-profile criminal defense attorney Alan Dershowitz, who has been named to Trump's legal team, said on CNN's "State of the Union" that "a motion is not going to made" in the Senate to dismiss the case against the president as it was in the Clinton trial. But he made it clear he believes such a move would be warranted.

Trump is accused of leveraging military aid to pressure Ukraine into announcing a pair of investigations that stood to benefit the president ahead of his 2020 reelection bid. The House impeached Trump last month on two articles of impeachment: abuse of power and obstruction of Congress.

Much of how the trial will proceed, including whether additional witness testimony or evidence will be allowed, has yet to be determined.

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Dershowitz plans to argue on the Senate floor that "even if everything that is alleged by the House managers is proven or taken as true, they would not rise to the level of an impeachable offense."

"If my argument succeeds, there's no need for witnesses. Indeed, there's no need for even arguments, any further arguments. If the House charges do not include impeachable offenses, that's really the end of the matter, and the Senate should vote to acquit, or even to dismiss," Dershowitz said.

Dershowitz said he "will be presenting a very strong argument" based on that made in 1868 by former Supreme Court Justice Benjamin Curtis in the impeachment trial against President Andrew Johnson.

Curtis' argument, according to Dershowitz, was "that the framers intended for impeachable conduct only to be criminal-like conduct or conduct that is prohibited by the criminal law." Dershowitz asserted that neither of the two articles of impeachment against Trump are charges of criminal behavior.

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On Saturday, the Democratic House impeachment managers who will prosecute the case filed a lengthy brief that outlined their allegations against Trump, which said the president "used his official powers to pressure a foreign government to interfere in a United States election for his personal political gain, and then attempted to cover up his scheme by obstructing Congress’s investigation into his misconduct."

Trump's legal team responded with a brief that called the impeachment a "brazen and unlawful attempt to overturn the results of the 2016 election and interfere in the 2020 election." Like Dershowitz, the brief said articles "fail to allege any crime or violation of law whatsoever." But it also said that the president had done nothing wrong and that Trump's actions on Ukraine were "constitutional, perfectly legal, completely appropriate, and taken in furtherance of our national interest."

"I didn't sign that brief. I didn't even see the brief until after it was filed," Dershowitz said on ABC News "This Week" when asked if he agreed the president had done nothing wrong. He said it didn't matter whether he thought what Trump did was acceptable, only if it was impeachable.

"My mandate is to determine what is a constitutionally authorized criteria for impeachment," he said. And abuse of power did not meet the criteria, he argued, because it "is so open-ended."

"Half of American presidents in history, from Adams to Jefferson to Lincoln to Roosevelt, have been accused by their political enemies of abusing their power," he said. "The framers didn't want to have that kind of criteria in the Constitution because it weaponizes impeachment for partisan purposes."

It should be up to the voters to determine if Trump abused his power or acted inappropriately, Dershowitz said.

House Intelligence Committee Chairman Adam Schiff, D-Calif., the lead impeachment manager, called Dershowitz's argument that abuse of power is not impeachable "absurdist."

"That's the argument I suppose you have to make if the facts are so dead set against you," Schiff said on "This Week."

"You have to rely on an argument that even if he abused his office in this horrendous way, that it's not impeachable," Schiff said. "You had to go so far out of the mainstream to find someone to make that argument, you had to leave the realm of constitutional law scholars and go to criminal defense lawyers."

Schiff said "the mere idea" of Dershowitz's argument would have "appalled the founders," who were very concerned about foreign election interference. He argued that such action goes to "the very heart of what the framers intended to be impeachable."

"The logic of that absurdist position that's being now adopted by the president is he could give away the state of Alaska," Schiff said. "He could withhold execution of sanctions on Russia for interfering in the last election, to induce or coerce Russia to interfere in the next one."

As to the charge of obstruction of Congress, Graham said it was an attempt to "put Trump below the law" by impeaching him for attempting to claim his right to executive privilege. He said rushing the process and not giving the court's time to rule on what is protected by privilege posed a threat to the power of the executive branch of government.

"You impeach a president. You don't let him to exert executive privilege in the House. You deny him or her their day in court," Graham said. "You've destroyed executive privilege through the impeachment process. That would really make the presidency far less effective and would hurt the constitutional balance of power."

Democrats have argued that waiting for the courts to force every witness to testify would effectively take the teeth out of Congress' power to remove the president.

"If you argue that, well, the House needed to go through endless months or even years of litigation before bringing about an impeachment, you effectively nullify the impeachment clause," Schiff said. "The framers gave the House the sole power of impeachment. It didn't say that was given to judges who at their leisure may or may not decide cases and allow the House to proceed.

"The reality is, because what the president is threatening to do is cheat in the next election, you cannot wait months and years to be able to remove that threat from office."