Fox News analyst Andrew Napolitano Andrew Peter NapolitanoFox's Napolitano: 2000 election will look like 'child's play' compared to 2020 legal battles Barr asked Rupert Murdoch to 'muzzle' Fox News commentator Napolitano, book claims Fox's Napolitano: Portland needs 'to throw the mayor out' MORE argued Thursday it would be a "mistrial" for House managers to bring up crimes the president is not charged with in a criminal trial, though he acknowledged doing so in the impeachment trial is another matter.

Napolitano, a former judge and senior legal analyst for Fox News, made the remarks during an appearance on "Fox & Friends."

President Trump Donald John TrumpBiden leads Trump by 36 points nationally among Latinos: poll Trump dismisses climate change role in fires, says Newsom needs to manage forest better Jimmy Kimmel hits Trump for rallies while hosting Emmy Awards MORE's legal team made a similar argument on Wednesday after House impeachment manager Rep. Adam Schiff Adam Bennett SchiffTop Democrats call for DOJ watchdog to probe Barr over possible 2020 election influence Overnight Defense: Top admiral says 'no condition' where US should conduct nuclear test 'at this time' | Intelligence chief says Congress will get some in-person election security briefings Overnight Defense: House to vote on military justice bill spurred by Vanessa Guillén death | Biden courts veterans after Trump's military controversies MORE (D-Calif.) raised bribery charges that weren't mentioned in the two articles of impeachment passed by the House.

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Napolitano said it would be a mistrial if charges not made against a defendant in a criminal case were raised during a trial, but he said impeachment is another matter.

"This would not happen in front of a jury in a criminal case. It absolutely would be a mistrial if it were stated in front of a jury in a criminal case," he sad. "But this is a different kind of jury where they each get to accuse the other side of all kinds of things."

The former Harvard law professor, who was added to the president's legal team for the Senate trial after voicing opposition to Trump's impeachment primarily on Fox News, argued that if the conduct the president is accused of by Democrats as it pertains to his dealings with Ukraine is without a criminal element, it does not rise to the level of an impeachable offense.

"That is clear from the language of the Constitution," Dershowitz, who is an opinion contributor for The Hill, argued on the Senate floor earlier this week. "You cannot turn conduct that is not impeachable into impeachable conduct simply by using words like 'quid pro quo' and 'personal benefit.' "

Napolitano, along with other cable news legal analysts such as CNN's Jeffrey Toobin, have noted Dershowitz made an opposite argument during President Clinton's impeachment in 1998-1999.



"That's obviously the opposite of what he said the last time around and reasonable lawyers can disagree," Napolitano said on the network Tuesday morning.

Deputy White House counsel Patrick Philbin on Wednesday criticized Schiff for broaching bribery and extortion charges against the president without adding those charges to the final two articles delivered to the Senate earlier this month.



"If this were a criminal trial in an ordinary court and Mr. Schiff had done what he just did on the floor here, and start talking about crimes of bribery and extortion that were not in the indictment, it would’ve been an automatic mistrial," Philbin argued. "We’d all be done now, and we could go home. And Mr. Schiff knows that, because he’s a former prosecutor."



"It is not permissible for the House to come here, failing to have charged, failing to have put in the articles of impeachment any crime at all, and then to start arguing that," he continued.



"It’s totally impermissible. It’s a fundamental violation of due process," Philbin later added.



The back-and-forth came one day before a crucial decision is made on Friday of whether to bring in witnesses.

The trial could end as soon as Friday if additional witnesses are not heard from.

“We’re going to get it done by Friday, hopefully,” Sen. Mike Rounds Marion (Mike) Michael RoundsChamber of Commerce endorses McSally for reelection Senate GOP eyes early exit Senate Republicans signal openness to working with Biden MORE (R-S.D.) said following the meeting.



Sen. Mike Braun Michael BraunPessimism grows as hopes fade for coronavirus deal McConnell shores up GOP support for coronavirus package Patient Protection Pledge offers price transparency MORE (R-Ind.), emerging from the lunch, said, “I think I can say the mood is good.”