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The Impeachment of President Donald J. Trump. Aired 7-8p ET

Aired January 27, 2020 - 19:00   ET



But unlike how House managers and indeed the entire House, 45 years later in December 2019, proceeded here, bipartisan consensus in 1974 among both House Democrats and House Republicans was the order of the day. Indeed, it became apparent then that narrow partisan views aside, the House Judiciary Committee would step into the breach only insofar as evidence of criminal presidential conduct warranted it.

The tapes of Oval Office conversations involving the President provided that evidence. The Supreme Court in effect overruled the claim of executive privilege and ordered the release of the tapes to the House Judiciary Committee.

As a result, three days later, the high crime of obstruction of justice, including suborning perjury, tethered to a second article of impeachment. Two days after that, alleging abuse of power was approved by the House Judiciary Committee by a vote of 27 to 11 and 28 to 10, respectively.

The second article of impeachment alleged among other things, unlawful use of the CIA and its resources, including covert activity in the United States, and interference with the law enforcement actions of the FBI to advance the coverup. That is the criminal conspiracy to obstruct justice charged in the first article of impeachment.

The crimes alleged were serious involving unlawful electronic surveillance of an opposing political party, paying hush money out of a White House safe-to-burglars and other co-conspirators to silence cooperation with law enforcement and attempts to alter testimony under oath.

Six Republican House committee members joined all 21 Democrats in supporting those two articles. My congressman was among those six Republican House members. Another one of the six was then a young congressman from Maine who later became a member of this body serving with distinction as a senator and later as President Bill Clinton's Secretary of Defense. That young congressman was Bill Cohen.

A third of the six was Representative Caldwell Butler, a Republican from Virginia whose papers are housed at Washington and Lee University in Lexington, Virginia, in the state where I grew up and where I later went to law school.

Together, these six Republicans made history. They did so with no sense of triumph in today's parlance, no fist bumps, but only in the words of my congressman with deep reluctance and only because the evidence was clear and unmistakable of unlawful activities by the president in a criminal coverup that was in the concluding language of the first article of impeachment contrary to his trust as president.

As to the third article in the Nixon impeachment, that article charging obstruction of Congress did not enjoy bipartisan support but instead was voted on by the House Judiciary Committee along party lines by a vote of 21 to 17. Republicans objected then to the third article in the face of the president's good faith prior claim to executive privilege by withholding certain evidence until such time as the matter was definitively resolved by the Supreme Court.

My point in mentioning these three votes by the House Judiciary Committee is simply this, count votes and do the math. I understand that you all have been deprived of your phones and thus a calculator app. So, I will do it for you.

A 27 to 11 vote was not only bipartisan as I have indicated but overwhelmingly so. Indeed, over 70 percent, that is to say greater than a two-thirds supermajority. That vote sent a powerful signal to the full House and indeed the Senate that impeachment was overwhelmingly bipartisan and therefore, politically and legally legitimate.

President Nixon's fate was sealed and the result was inevitable. Thus, less than two weeks after that initial committee vote on impeachment, the President resigned. My congressman during the course of those proceedings commented simply and plainly that it was, in his words, a great American tragedy.

But the greater point was and is that impeachment was never designed or intended to be a partisan tool and was to be undertaken only as a last resort. This then brings me to what was intended by the framers of the Constitution relative to impeachment. That subject will be addressed at some length by my


colleague, Professor Dershowitz, but for now, let me just say that much has been said by House managers in reliance on Alexander Hamilton's oft quoted statement in Federalist No. 65. That's the one repeatedly taken out of context and cited in favor of an expansive scope of jurisdiction by Congress over alleged offenses in Hamilton's words, which proceed from misconduct of a public official constituting the abuse of or violation of some public trust.

The irony that Hamilton, the greatest proponent in this country of executive and presidential authority that perhaps ever lived, should be front and center in this partisan impeachment effort to remove a duly elected president from office is apparently lost on House impeachment managers. I dare say that Hamilton would roll over in his grave at the end of Wall Street in New York City to know that contrary to what he explicitly acknowledged in Federalist No. 69 that a president can only be removed from office upon conviction of treason, bribery or other high crimes and misdemeanors. We should just read the word crime right out of the impeachment clause of the Constitution and proceed merrily along the way towards an impeachment trial with witnesses, no less, of a president duly elected by the people. And for what? Articles of impeachment that do not even alleged crimes.

President Trump is right. That course, if sustained, cheapens the impeachment process and thus is an American tragedy all its own. Indeed, none other than President Clinton's highly respected White House counsel Charles Ruff during the impeachment trial 21 years ago in January 1999 stated it best, and I quote, "to argue as the managers do that the phrase other high crimes and misdemeanors was really meant to encompass a wide range of offenses simply flies in the face of the clear intent of the framers who carefully chose their language, knew exactly what those words meant, and knew exactly what risk they intended to protect against." Close quote.

One of those concerns and risks Counsel Ruff went on to explain was that impeachment be limited and well defined. For our purposes here, what is required is both the crimes be alleged and that those crimes be of the type that in particular are so serious that they, again in Mr. Ruff's words, quote, "subvert our system of government and would justify overturning a popular election." Close quote.

Otherwise, what you have in de Tocqueville's words is legislative tyranny. That, taken in its proper context, members of the Senate, I respectfully submit, is what Alexander Hamilton well understood and meant and so did my congressman.

That congressman was, of course, Hamilton Fish, Jr. Actually, it was not really Junior but Hamilton Fish, IV. His great-grandfather was also Hamilton Fish who was born in 1808, later served as governor of New York, a United States senator immediately before the Civil War and notably as President Ulysses Grant's Secretary of State.

But what I didn't realize at that time back in 1980, even though now perhaps it's so obvious, the original Hamilton Fish was named after his parents' best friend, none other than Alexander Hamilton himself. What Congressman Hamilton Fish from the Watergate era courageously understood is the same historical lesson that Jeffrey A. Engle, founding director of the Center for Presidential History at Southern Methodist University, has written about in a co-authored 2018 book on impeachment.

The charge must be treason, bribery or other high crimes and misdemeanors. It must be one for which clear and unmistakable proof can be produced. Only if the evidence actually produced against the president is indeed irrefutable such that his own constituents, in this case, the 63 million people like me who voted for President Trump except his guilt of the offense charged in order to overwhelmingly persuade a supermajority of Americans and thus their senators of malfeasance warranting his removal from office.

And finally, because it is the President of the United States after all that we are talking about here, the repository of and entrusted under the Constitution [19:10:00]

with all of the executive power of the United States, in other words, an entire branch of government, removal from office cannot be based upon an impeachable offense or offenses which are, in essence, nothing more than paraphrasing President Gerald Ford now, whatever a partisan majority of the House of Representatives considers them to be.

And to supplement that cited statements 50 years ago, in 1970, from then Congressman Jerry Ford in connection with the prospect of potentially impeaching a Supreme Court justice, Ford pointedly clarified that Executive Branch of impeachments are different because voters can remove the president, the vice president and all persons holding office at their pleasure at least every four years.

To remove a president in midterm, it has been tried before and never done what indeed he said require crimes of the magnitude of treason and bribery. Professor Akhil Amar of Yale Law School made largely the same point during the Clinton impeachment about the danger presented through presidential impeachment of transforming an entire branch of government.

When they remove a duly elected president, they undo the votes of millions of ordinary Americans on election day. That is not something, he continued, that senator should do lightly, less we slide toward a kind of parliamentary government that our entire structure of government was designed to repudiate.

In hammering home the constitutional uniqueness of presidential impeachments, he emphasized the case of Richard Nixon and distinguished it that -- from Andrew Johnson that is to say only when extremely high crimes and gross abuses of official power indeed pose a threat to our basic constitutional system.

A threat as high and truly as malignant to democratic government as treason and bribery, he reasoned, with the Senate ever be justified in nullifying the votes of millions of Americans and removing a president from office.

My point is this, history, our American history matters. To listen to how the House managers would have it, articles of impeachment are merely, as Chuck Ruff warned a generation ago, empty vessels into which can be poured any number of charges even those considered and abandoned.

At least in the case of President Clinton's impeachment, the articles actually charge crimes. The Senate, thereafter, determined by its vote in that case in effect that while those crimes, perjury and obstruction of justice, may have been committed, those crimes were not high enough, crimes damaging to the body politic to warrant the president's removal from office.

That judgment was, of course, within this body's discretion to render and it has been accepted as such by the country whether you agree with it or not as legitimate. It is also one that is historically consistent with Hamilton's views and Madison's, too, concerning the proper scope of impeachment as applied to a president.

When I entered the scene and succeeded my colleague and co-counsel here, Judge Kenneth Starr, as independent counsel in October 1999, it was left for me to decide whether prosecution of President Clinton following impeachment nonetheless was warranted consistent with the Department of Justice's principles of federal prosecution and that matter was exhaustively considered.

In the midst of a federal grand jury investigation that I commissioned in order to decide, first, whether crimes in fact had been committed, I found that they had and I later said so publicly in the final report expressly authorized and mandated by Congress concluding the Lewinsky investigation.

Significantly though, I also determined that the prosecution of the president while in or once he left office would not be in the national interest given alternative available means short of prosecution in order to hold the president accountable for his conduct. Those means included a written acknowledgment by the president two years after his Senate trial that his testimony under oath before the grand jury had in fact been false and a related agreement to suspend his law license.

The price paid by President Clinton was indeed high and it's stemmed in the end from the need to vindicate the principle first raised most prominently during Watergate that no person, including the president, is above the law.


Despite President Clinton's subsequent protestation in his memoirs that I was just another federal prosecutor out to extract, in his words, a pound of flesh, I credit the President to this day with agreeing to do what was necessary in order to exercise my discretion not to prosecute.

Mainly that for the good of the country and recognizing the unique place of the President, indeed any president, occupies in our constitutional government, accountability and discretion go hand-in- hand and permitted indeed demanded such an appropriate resolution. It enabled the country to move on and it was as much, if not, more a credit to Bill Clinton than to any credit I received or deserved that we were able to reach agreement and avoid any further partisan, recriminations or interference with the will of the American people in electing and reelecting President Clinton in the first place and his successor, President George W. Bush.

In short, I was absolutely mindful and exceedingly concerned throughout my tenure as independent counsel that although crimes have been committed, Bill Clinton was the elected official placed in office by voters throughout the nation and head of the Executive Branch, and I was not.

The lesson for me was a simple one that I'm sure every American citizen, whatever their own experience or political perspective, can understand. Be humble and act with humility. Never being too sure that you are right. Today, 20 years later, what we have learned from that -- what have we learned from that experience? I fear that the answer to that question is nothing at all. If these impeachment articles now are sustained beyond summary resolution in favor of acquittal, impeachment in the future literally will mean not only the proof of high crimes is no longer necessary to sustain the effort but that no crime at all is sufficient so long as a partisan majority in the House says so.

And thus, during the past four months alone, we have witnessed the endless procession of legal theories used to sustain this partisan impeachment from treason to quid pro quo, to bribery, to extortion, to obstruction of justice, to soliciting an illegal foreign campaign contribution, to a violation of the Impoundment Control act, to who knows what all is next.

What you are left with then are constitutionally deficient articles abandoning any pretense of the need to alleged crimes that are another vehicle or weapon if you will in order to damage the President politically in an election year. It is, I submit, decidedly not in the country's best interest to have the prosecution of the great issue of impeachment and the drastic prospect of removal from office become just politics by other means.

Any more than it would be appropriate for the huge power of prosecution of offenses under the federal criminal code to be exercised not on the merits without fear or favor but instead as a raw, naked and pernicious exercise of partisan power and advantage.

I have spent the better part of my professional life for over 30 years as a federal prosecutor for 13 years through two independent counsel investigations and now as a defense lawyer for over 17 years trying my level best always to ensure that politics and prosecution do not mix. It must not happen here.

A standard less and partisan impeachment is illegitimate and should be rejected as such. Overwhelmingly by this body, I hope and submit or alternatively and if need be by only a partisan Republican majority for the good of the country.

Turning now to what the House managers have alleged. Regarding the first article, the House Judiciary Committee report on impeachment contains a rather extraordinary statement. It says as follows, and I quote, "although President Trump's actions need not rise to the level of a criminal violation to justify impeachment, his conduct here was criminal." Close quote.

So, in short, we didn't bother in an impeachment article charging the President with a crime implicitly recognizing that there is insufficient evidence to prove that such a crime was committed but we're going to say that the President's conduct was criminal nonetheless.


Aside from being exceedingly unfair to call something criminal and not stand behind the allegation and actually charge it, it just ain't so. I have heard House manager Hakeem Jeffries argued before this body that he and his team have overwhelming evidence of an explicit, his word, not mine, quid pro quo by the President. That is an explicit purported and proposed exchange by President Trump of something of personal benefit to himself in return for an official act by the U.S. government.

As I have explained as far back as November of last year in a "Time" magazine cover story, the problem with this legal theory is that an unlawful quid pro quo is limited to those arrangements that are corrupt. That is to say only those that are clearly and unmistakably improper are therefore illegal.

And in the eyes of the law, the specific measurable benefit that an investigation or even the announcement of an investigation against the Bidens might bring President Trump is at best nebulous. I should add here also that any effort to contend that this purported thing of value also constitutes an illegal foreign campaign contribution to the President of the United States is fraught with doubt as a matter of law. Indeed, the Justice Department has said as much.

So, too, of course, who have struggled since at least the early 1990s with application of the federal anti-corruption laws to situations like this, when an in-kind benefit in the form of campaign interference or assistance is alleged to be illegal, none of this would permit the requisite finding supported by clear and unmistakable evidence of a violation of law necessary to sustain impeachment as an abuse of power.

But back to manager Jeffries' contention, proof of an explicit quid pro quo by the President, which parenthetically as previously noted by Mr. Cipollone, is nowhere to be found in the articles of impeachment. It would have required a very different telephone call than the one President Trump actually had with Ukraine President Zelensky.

As I tried to explain in the "Time" magazine piece, an explicit quid pro quo for alleged improper campaign interference would have had President Trump saying to his counterpart in Ukraine in words or substance, here's the deal, and followed up by explicitly linking a demand for an investigation of the Bidens to the provision or release of foreign aid.

None of that was said or ever happened. The call transcript itself demonstrates that beyond any doubt, in the President's words, read the transcript. By the way, the demand characterization apparently creeps into this phone call largely as a result of Army Lieutenant Colonel Alexander Vindman's testimony where he equates a request based upon his military experience and having listened in on the call by a superior officer, in this case, the Commander-in-Chief, as the same thing as an order in the chain of command.

While all of this may be true in the military, it goes without saying that President Zelensky, as the leader and head of a sovereign nation, was not and is not in our military chain of command. I say that to you, members of the Senate, as the son of a U.S. Army colonel and Vietnam War veteran, buried at Arlington National Cemetery and the father of a U.S. Army Major currently serving with President Trump's Space Force command in Aurora, Colorado near Denver. With all due respect, Lieutenant Colonel Vindman's testimony in this regard is at best, I submit to you, distorted and unpersuasive.

Next, the purported implicit link between foreign aid and the investigations or the announcement of them is weak. The most that Ambassador Gordon Sondland was able to give was his presumption that such a link likely existed and that presumption was flatly contradicted by the President's expressed denial of the existence of a quid pro quo to Ambassador Sondland as well as to Senator Ron Johnson.

The President was emphatic to Ambassador Sondland. The President said, quote, "I want nothing. I want no quid pro quo. I just want Zelensky to do the right thing to do what he ran on." Close quote. And to Senator Johnson, the same thing just, two words, no way.

Recognizing this flaw in the testimony, House managers have focused instead on an alternate quid pro quo rationale that the exchange was conditioned on a foreign head of state meeting at the White House in return for Ukraine publicly announcing an investigation of the Bidens.

In the House judiciary report, it states as follows, and I quote,


"it is beyond question that official White House visits constitute a formal exercise of governmental power within the meaning of McDonnell," close quote.

Not so fast. Actually, the Supreme Court and McDonnell helpfully boiled it down to only those acts that constitute the formal exercise of government power and that are more specific and focused in a broad policy objective.

An exchange resulting in meetings, events, phone calls, as those terms are typically understood as being routine, according to the Supreme Court's definition of an official act, do not count. The fact that the meeting involved was a formal one with all the trappings of a state visit by the President of Ukraine and hosted by the President of the United States makes no difference.

The Supreme Court is talking about an official act as a formal exercise of decision-making power, not the formality of the visit. Even if the allegation were true, this could not constitute a quid pro quo. I should know.

I argued in effect the contrary proposition in United States versus Sun-Diamond before the Supreme Court over 20 years ago in 1999. That proposition lost unanimously. The vote was nine to nothing.

In any event, the coveted meeting -- and it was after all just a meeting, whether at the White House or not -- was not permanently withheld. It later happened between the two presidents at the United Nations in New York City at the first available opportunity in September 2019.

Finally, the argument by Chairman Jerry Nadler that this call by President Trump with President Zelensky represented a, quote, "extortionate demand," close quote, is patently ridiculous. The essential element of the crime of extortion is pressure.

No pressure was exercised or exerted during the call. Ukrainian officials, including President Zelensky himself, have since repeatedly denied that any such pressure existed. Indeed, to the contrary, the evidence strongly suggests Ukraine was perfectly capable of resisting any efforts to entangle itself in United States' domestic party politics and partisanship.

What then remains of the first article of impeachment? No crimes were committed. Indeed, no crimes were even formally alleged. In that regard, what exactly is left?

It's not treason. Ukraine is our ally, not our enemy or adversary, and Russia is not our enemy, only our adversary. It's not bribery. There's no quid pro quo. It's not extortion, no pressure. It's not an illegal foreign campaign contribution. The benefit of the announcement of an investigation is not tangible enough to constitute an in-kind campaign contribution warranting prosecution under federal law. And it's also not a violation of the Impoundment Control Act.

Let's take a look at that last one for a moment, shall we? The U.S. Government Accountability Office, an arm of the United States Congress, in its infinite wisdom has decided contrary to the position of the Executive Branch offices -- Executive Branch Office of Management and Budget, OMB, that while the president may temporarily withhold funds from obligation, but not beyond the end of the fiscal year, he may not do so with vague or general assertions of policy priorities contrary to the will of Congress.

The president's response to this interbranch dispute between Congress and the Executive Branch was to assert his authority over foreign policy to determine the timing of the best use of funds. Ultimately, this is a dispute that has constitutional implications under separation of power principles about which this body is well familiar.

It pits the president's constitutional prerogatives to control foreign policy against Congress' reasonable expectation that the president will comply with the Constitution's faithful execution of the law requirement of his oath of office.

This issue has come up before with other presidents. There is a huge constitutional debate among legal scholars about who's right. Law review articles have been written about it, one as recently as last June in the Harvard Law Review.

Congress, through its arm, the GAO, have an opposing view from that of the administration and OMB. Big surprise. I am reminded of one of President Kennedy's famous press conferences where he was asked to comment about a report that the Republican National Committee had voted a resolution that concluded he was a total failure as president, he famously quipped,


I am sure that it was passed unanimously.

That is all that this is here, politics. No more, no less. And in the end, what are we talking about? The temporary hold was lifted and the funds were released as they had to be under the law and as acknowledged was required by none other than Acting Chief of Staff Mick Mulvaney, 19 days before the end of the fiscal year on September 11, 2019.

In any event, an alleged violation of the Impoundment Act can no more sustain an impeachment article than can an assertion of executive privilege in opposition to a congressional subpoena absent a final decision of a court ordering compliance with that subpoena. Mere assertion of a privilege or objection in a legitimate interbranch dispute is a constitutional prerogative. It should never result in an impeachable offense for abuse of power or obstruction of Congress.

Ad yet, in a last-ditch effort to reframe its first article of impeachment on abuse of power, House managers as part of the House Judiciary Committee report have gone back into history, always a treacherous endeavor for lawyers. They now argue that President Andrew Johnson's impeachment from over 150 years ago, following the end of the Civil War and during Reconstruction, was not about a violation of the Tenure of Office Act, which after all was the violation of law charges the principal article of impeachment, but instead rested on his use of power with illegitimate motives.

In an ahistorical sleight-of-hand (inaudible) the New York Times recent 1619 series -- a series, by the way, roundly criticized by two of my Princeton Civil War and Reconstruction History professors as inaccurate -- House managers now claim that President Johnson's removal of Lincoln Secretary of War Edwin Stanton without Congress' permission in violation of a congressional statute later found to be unconstitutional is best understood with the benefit of revisionist hindsight to be motivated not by his desire to violate the statute but on his illegitimate use of power to undermine reconstruction and subordinate African-Americans following the Civil War.

That all may be true. But it is another thing altogether to claim that that motive actually was the basis of Johnson's impeachment. Professor Laurence Tribe who was the source for this misguided reinterpretation of the Johnson impeachment simply substitutes his own self-described, far more compelling basis for Johnson's removal from office from the one that the House of Representatives actually voted on and the Senate considered at his impeachment trial.

There has been an awful lot of that going on in this impeachment. People substituting their own interpretations for the ones that the principles actually and explicitly insist on. At any rate, a president's so-called illegitimate motives in wielding power can no more frame and legitimize the Johnson impeachment than recasting the Nixon impeachment as really about his motives in defying Congress over the country's foreign policy in Vietnam.

Again, all of that may be true but it has nothing really to do with impeachment. Not only that, it's also bad history. As recognized 65 years ago by then Senator John F. Kennedy in his book "Profiles in Courage" President Johnson was saved from removal from office by one vote and thus, by one courageous senator who recognized the legislative overreach that the Tenure of Office Act represented.

Quoting now from Senator Edmund G. Ross in "Profiles in Courage" who explained his vote as follows, quote, "the independence of the executive office as a coordinate branch of government was on trial. If the president must step down upon insufficient proofs and from partisan considerations, the Office of the President would be degraded." Close quote.

So too here. Contrary, apparently, to the fashion now, Senator Ross' action eventually was praised and accepted several decades after his service and, again, many years later by President Kennedy as a courageous stand against legislative mob rule.

Professor Dershowitz will have more to say about one other courageous senator from that impeachment more on that later. For now, the point is that our history demonstrates that president should not be subject to impeachment based upon batter ill motives and any thought to the


contrary should strike you, I submit, as exceedingly dangerous to our constitutional structure of government.

If that were the standard, what president would ever be safe by way of impeachment from what Hamilton decried as the, quote, "persecution of an intemperate or designing majority in the House of Representatives." Close quote.

The central import of the abuse of power article of impeachment and indeed when added together with the obstruction of justice article is a result not far off from what one citizen tweet I saw back in December described as, Article I, Democrats don't like President Trump. Article II, Democrats can't beat President Trump.

President Trump is not removable from office just because a designing majority in the House as represented by their managers believes that the President abused the power of his office during the July 25th call with President Zelensky. The Constitution requires more.

To ignore the requirement of proving that a crime was committed is to sidestep the constitutional design as well as the lessons of history. Now, I know that many of you may come to conclude or may have already concluded that the call was less than perfect, and I have said on any number of occasions previously and publicly that it would have been better in attempting to spur action by a foreign government and cordoning law enforcement efforts with our government to have done so through proper channels.

While the President certainly enjoys the power to do otherwise, there is consequence to that action as we have now witness after all that is why we are all here. But it is another thing altogether to claim that such conduct is clearly and unmistakably impeachable as an abuse of power. There can be no serious question that this president or any president acts lawfully in requesting foreign assistance with investigations into possible corruption even when it might potentially involve another politician.

To argue otherwise would be to engage in the specious contention that a presidential candidate or for that matter, any candidate enjoys absolute immunity from investigation during the course of a campaign. I can tell you that's not the case for my own experience.

I did so during 2000 in investigating Hillary Clinton while she was running for office to become a United States Senator from New York to which she was elected. My point simply is this, this president has been impeached and stands trial here in the Senate for allegedly doing something indirectly about which he was entirely permitted to do directly. That cannot form a basis as an abuse of power article sufficient to warrant his removal from office.

Turning now to the second article of impeachment. As we argued in our written trial brief, at the outset, it must be noted that it's at least a little odd for House managers to be arguing that President Trump somehow obstructed Congress when he declassified and released what is the central piece of evidence in this case and that's, of course, the transcript of the July 25th call as well as the call with President Zelensky that preceded it on April 21, 2019.

Release of that full call record should have been the end of this claim of obstruction. But apparently, not. Instead, again, relying on United States versus Nixon, House managers have proffered a broad claim to documents and witnesses in an impeachment inquiry notwithstanding the Nixon court's limited holding that an objection by the president based on executive privilege could only be an overcome in the limited circumstances presented there where the information sought was also material to the preparation of the defense by his co- conspirators in pending cases awaiting trial following indictment.

In other words, a defendant's Sixth Amendment right to a fair trial in collateral proceedings was what the court actually found dispositive in rejecting the President's claim of privilege to prevent Congress from gaining access to the Watergate tapes.

All subsequent administrations have defended that narrow exception against any general claim of access to Executive Branch, confidential communications, documents, and witnesses who are the witnesses or who are the president's closest advisers.

Thus, it should be a matter of accepted wisdom, and historical premise that a president cannot be


removed from office for invoking established legal rights, defenses, privileges and immunities, even in the face of subpoenas from House committees. Back in 1998, Professor Tribe called out any argument to the contrary as frivolous and dangerous. House managers respond now by arguing nonetheless, that the President has no right to defy a legitimate subpoena, particularly, I suppose, when their impeachment efforts are at stake. And thus, it is an issue rising to the level of an interbranch conflict that in our system of government only accommodation between the branches and ultimately courts can finally resolve.

The House chose to forgo that course and to plow forward with impeachment. House managers cannot be heard to complain now that their own strategic choice can form any basis to place blame on the President for it and worse yet, to then impeach him on that basis and seek his removal from office. That's no basis at all, as Professor Jonathan Turley persuasively has explained.

Compliance with a legitimate subpoena is enforced over a claim of executive privilege or presidential immunity only when a court with jurisdiction says so in a final decision. In some, calling a subpoena legitimate, as House managers have done here, does not make it so.

An analogy 33333taken from baseball, that I believe the Chief Justice might appreciate, makes the point. A long-time Major League umpire named Bill Klem, who worked until 1941 after 37 years in the big leagues, was once asked during a game by a player whether a ball was fair or foul. The umpire replied, it ain't nothing until I call it.

Well, I say the same thing to Chairman Schiff now, it's not a legitimate and therefore, enforceable subpoena until a court says that it is.

Preceding the Clinton impeachment and indeed in response to demands not just from the Whitewater independent counsel, but also from several other of the independent counsel investigations that were ongoing at that time, and again, I know, I was in one of them, the White House repeatedly asserted claims of executive privilege.

Many of those claims were litigated for months, not weeks, and in some cases, for years. So, when I hear Mr. Schiff's complaint that the House's request for former White House Counsel Don McGahn's testimony, grand jury material and other documents has been drawn out since April of last year, I can only say in response, boo-hoo.

Did I think at that time that many of those claims of privilege were frivolous and in abuse of judicial process? Of course. And indeed, that was the determination of the House Judiciary Committee during the Clinton impeachment.

What did they do about it? Nothing. The Committee properly concluded then that those assertions of privilege, even if ill-founded, did not constitute an impeachable offense.

Did I believe that the Clinton administration's actions in this regard had adversely impacted our investigation? You bet I did. And I said so in the final report. But never did I seriously consider that those efforts by the White House, although endlessly frustrating and damaging to the independent counsel's investigation, would constitute the crime of obstruction of justice, or any related impeachable offense for obstruction of Congress.

Instead, I and my colleagues did the best that we could in reaching accommodation wi333th the White House where possible or through litigation when necessary in order to complete the task at hand to the best of our ability to do so. Any contention that what has transpired here involving this administration and administration's assertion of valid and well-recognized claims of privileges and immunities is somehow contrary to law and impeachable is ludicrous.

In short, to add to the parade of criminal offenses not sustained on this impeachment, there was no obstruction of justice or of Congress, period. The President cannot be impeached and removed from office for asserting subject to judicial review what he has every right to assert. That is true now as it has been true of every president all the way back to President George Washington.

In short, as to both articles of impeachment, all the President is asking for here is basic fairness and to be held to the very same standard that both House Speaker Nancy Pelosi proffered in March


2019 and which previously was endorsed during the Clinton impeachment in strikingly similar language by House manager Jerry Nadler 20 odd years ago in 1998.

The evidence must be nothing less than, quote, "compelling, overwhelming and bipartisan," close quote. We agree. No amount of witness testimony, documents, high-fives, fist bumps, signing pens or otherwise are ever going to be sufficient to sustain this impeachment under the Democrats own standard.

With that, I am ready to conclude. The President's only instruction to me for this trial was a simple one, do what you think is right. As a country, we need to put a stop to doing anything and everything that we can do and start doing what's right and what needs to be done in the nation's best interests.

A brazenly partisan political impeachment by House Democrats is not, I submit, in the best interest of this country because in the final analysis, we will all be judged in the eyes of history on whether in this moment we acted with the country's overriding welfare firmly in mind rather than in advancing the cause of partisan political advantage.

I have always believed as an article of faith that in good times and in hard times and even in bad times with matters of importance at stake that this country gets the big things right. I have seen that in my own life and for my own experience even in Washington, D.C.

Well, members of the Senate, this what lies before you now is just such a big thing. The next election awaits. Election day is only nine months away. As Senator Dale Bumpers eloquently concluded in arguing against President Clinton's removal from office, and I quote, "that's the day when we reach across the aisle and hold hands, Democrats and Republicans, and we say, win or lose, we will abide by the decision. It is a solemn event presidential election and it should not -- they should not be undone lightly or just because one side has political clout and the other one doesn't." Close quote.

Otherwise, as Abraham Lincoln warned us during his first inaugural address, and I quote, "if the minority will not acquiesce, the government must cease so that in rejecting the majority principle, anarchy in some form is all that is left." Close quote.

This impeachment and the refusal to accept the results of the last election in 2016 cannot be left to stand. For the reasons stated, the articles of impeachment therefore should be rejected and the President must be acquitted.

Members of the Senate, thank you very much. With that, Mr. Chief Justice, I yield back to Mr. Sekulow. Thank you.

SEKULOW: Mr. Chief Justice, we're going to now delve into the constitutional issues for a bit and our presenter is Professor Alan Dershowitz. He is the Felix Frankfurter Professor Emeritus of Harvard Law School. After serving as a law clerk for Judge David Bazelon of Us Court of Appeals for the District of Columbia, he served as a law clerk for Justice Arthur Goldberg of the U.S. Supreme Court.

At the age of 28, Professor Dershowitz became the youngest tenured professor at Harvard Law School. Mr. Dershowitz spent 50 years as an active faculty member at Harvard, teaching generations of law students, including several members of this chamber, and classes ranging from criminal law to constitutional law, criminal procedure, constitutional litigation, legal ethics and even take courses on impeachment. He will address the constitutional issues raised by these articles.

DERSHOWITZ: Mr. Chief Justice, distinguished members of the Senate, our friends, lawyers, fellow lawyers, it's a great honor for me to stand before you today to present a constitutional argument against the impeachment and removal not only of this president but all and any future presidents who may be charged with the unconstitutional grounds of abuse of power and obstruction of Congress.

I stand before you today as I stood in 1973, in 1974 for the protection of the constitutional and


procedural rights of Richard Nixon who I personally aboard and whose impeachment I personally favored. And as I stood for the rights of Bill Clinton who I admired and whose impeachment I strongly opposed.

I stand against the application and misapplication of the constitutional criteria in every case and against any president without regard to whether I support his or her parties or policies. I would be making the very same constitutional argument had Hillary Clinton, for whom I voted, been elected and had a Republican House voted to impeach her on these unconstitutional grounds.

I am here today because I love my country and our Constitution. Everyone in this room shares that love. I will argue that our Constitution and its terms, high crimes and misdemeanors, do not encompass the two articles charging abuse of power and obstruction of Congress.

In offering these arguments, I stand in the footsteps and in the spirit of Justice Benjamin Curtis who was of counsel to impeach President Andrew Johnson and who explained to the Senate that, quote, "A greater principle was at stake than the fate of any particular president." And of William Everts, a former Secretary of State, another one of Andrew Johnson's lawyers who reportedly said that he had come to the defense table not as a partisan, not a sympathizer, but to defend the Constitution.

The Constitution, of course, provides that the Senate has the sole role and power to try all impeachments In exercising that power the Senate must consider three issues in this case.

The first is whether the evidence presented by the House managers establishes by the appropriate standard of proof, beyond a reasonable doubt that the factual allegations occurred. The second is whether if these factual allegations occurred, did they rise to the level of abuse of power and/or obstruction of Congress.

Finally, the Senate must determine whether abuse of power and obstruction of Congress are constitutionally authorized criteria for impeachment. The first issue was largely factual and I leave that to others, the second is a combination of traditional and constitutional law and I will touch on those.

The third is a matter of pure constitutional law. Do charges of abuse and obstruction rise to the level of impeachable offenses under the Constitution?

I will begin as all constitutional analysis begins with the text of the Constitution governing impeachment. I will then examine why the framers selected the words they did as the sole criteria authorizing impeachment? In making my presentation, I will transport you back to a hot summer in Philadelphia and on a cold winter in Washington, I will introduce you to patriots and ideas that help shape our great nation.

To prepare for this journey, I have immersed myself in a lot of dusty old volumes from the 18th and 19th Century. I ask your indulgence as I quote from the wisdom of our founders.

This return to the days of yesteryear is necessary because the issue today is not what the criteria of impeachment should be, not what a legislative body or a constitutional body might today decide are the proper criteria for impeachment of a president, but what the framers of our Constitution actually chose and what they expressly and implicitly rejected.

I will ask whether the framers would've accepted such vague and open- ended terms as abuse of power and instruction of congress as governing criteria. I will show by a close review of the history that they did not and would not accept such criteria for fear that these criteria would turn our new Republic into a British-style parliamentary democracy in which the chief executive's tenure would be in the words of James Madison, the father of our Constitution at the pleasure of the legislature.

The conclusion I will offer for your consideration is similar, though, not identical to that advocated by highly respected justice Benjamin Curtis who, as you know, dissented from the Supreme Court's notorious decision in Dred Scott and who, after resigning in protest from the High Court, served as counsel to President Andrew Johnson in the Senate impeachment trial.


He argued, and I quote, "There can be no crime. There could be no misdemeanor without a law written or unwritten express or implied." In so arguing, he was echoing the conclusion reached by Dean Theodore Dwight of the Columbia Law School who wrote in 1867 just before the impeachment, unless a crime is specifically named in the Constitution treason and bribery, impeachments like indictments can only be instituted for crimes committed against the statutory law of the United States.

As Judge Starr said earlier today, he described that as the weight of authority being on the side of that proposition at a time much closer to the framing when we are today.

The main thrust of my argument, however, and the one most relevant to these proceedings is that even if that position is not accepted, even if criminal conduct were not require, the framers of our Constitution implicitly rejected, and if it had been presented to them, would've explicitly rejected such vague terms as abuse of power and obstruction of Congress as among the enumerated and defined criteria for impeaching a president.

You'll recall that among the articles of impeachment against President Johnson were accusations of noncriminal but outrageous misbehavior including, once again, to the abuse of power and obstruction of Congress.

For example, Article 10 charged Johnson did attempt to bring into disgrace ridicule, hatred, and contempt and reproach the Congress of the United States? Article 11 charged Johnson with denying that Congress was authorized by the Constitution to exercise legislative power and denying that the legislation of said Congress was obligatory upon him. Pretty serious charges.

Here's how Justice Curtis responded to these noncriminal charges. Quote, "My first position is that when Congress speaks of treason, bribery, and other crimes and misdemeanors, it refers to and includes only high criminal offenses against the United States made so by some law of the United States existing when the acts complained of were done." And I say, he continued, "that this is plainly to be inferred from each and every one of the provisions of the Constitution on the subject of impeachment." And I will briefly review those other provisions of the Constitution with you.

Judge Curtis' interpretation is supported indeed in his view. It was compelled by the constitutional text. Treason, bribery, and other high crimes and misdemeanors are high crimes. Other high crimes and misdemeanors must be akin to treason and bribery.

Curtis cited the Latin phrase, noscitur a sociis -- sorry for the mispronounciation -- referring to a classic rule of interpretation that when the meaning of a word that is part of a group of words is uncertain, you should look to the other words in that group that provide interpretive context.

The late Justice Antonin Scalia gave the following current example. If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan and other great competitors, the last noun does not reasonably refer to Sam Walton. He was a great competitor but in business, or to Napoleon, competitor on the battlefield.

Applying that rule to the groups of words treason, bribery, and other high crimes and misdemeanors, the last five words should be interpreted to include only serious criminal behavior akin to treason and bribery.

Justice Curtis then reviewed the other provisions of the Constitution that relate to impeachment. First, he started with the provision that says the President of the United States shall have the power to grant reprieves and pardons, listen now, for offenses against the United States except in cases of impeachment.

He cogently argued that if impeachment were not an offense against the United States, was not based on an offense against the United States, there would've been no need for any constitutional exception.

He then went on to a second provision. The trial of all crimes except in cases of impeachment shall be by jury. This demonstrated according to Curtis, that impeachment requires a crime.

But unlike other crimes, it does not require a jury trial. You are the judge and the jury.

He also pointed out that impeachment trial, by the expressed words of the Constitution, requires an acquittal or a conviction judgments generally rendered only in the trial of crimes.

Now, President Johnson's lawyers, of course, argued in the alternative as all lawyers do when there are questions of fact and of law.