“Political Sins Are Not Impeachable Crimes”
The Democrats’ impeachment of President Trump has begun. Renowned lawyer Alan Dershowitz tells Die Weltwoche that, so far, they don’t have a case. The Harvard Law professor says the Democratic-led interrogation is, “an attack on Trump's foreign policy.”
Last week, the impeachment inquiry against President Donald Trump entered a new phase. The House Intelligence Committee, led by committee chair California Representative Adam Schiff, brought their controversial closed door inquiry into full public view with nationally televised hearings.
Die Weltwoche asks US Constitutional scholar Alan Dershowitz to comment on the first hearings.* The 81 year old Harvard Law professor is one of the most prominent and celebrated lawyers in the US. He has advised and defended many of the most famous legal cases of the past fifty years, including O.J. Simpson, Mike Tyson and WikiLeaks founder, Julian Assange. Dershowitz, who voted for Democratic candidate Hillary Clinton in the 2016 election, insists on his political independence.
Dershowitz says his latest book — the New York Times bestseller, “The Case Against Impeaching Trump” — was originally a treatise on the Republican’s relentless campaign againstHillary Clinton. When Donald Trump was elected president, instead, he just changed the name in the title.
(*The interview was conducted over the phone on November 14th, follow-up questions were asked on November 18th.)
Professor Dershowitz, you have written a well reviewed book, “The Case Against Impeaching Trump.” Is there anything you heard in the first hearings that changed your mind? Anything that justifies the impeachment of President Donald Trump?
No. It strengthened my views, yesterday, that what the Democrats are trying to do is turn political sins into impeachable crimes. What happened, yesterday, was basically an attack on Trump's foreign policy. Many presidents use multiple tracks in foreign policy. President Obama ran his foreign policy from the White House rather than through the State Department. Many presidents have done that. One can be critical. There were some facts presented which might lead somebody to vote against President Trump for re-election.
That's a decision every American has the right to make in a democracy. I heard absolutely nothing that would suggest a crime. For there to be an impeachment, there has to be treason. It wasn't treason, bribery, or other high crimes and misdemeanors. I think yesterday's hearing strengthened President Trump's hand in saying that they're using this impeachment process as an excuse for making political arguments against the way he has governed.
What was striking in the first hearings was that exclusively hearsay was presented. Republican Senator Lindsey Graham of South Carolina said that hearsay cannot be the basis of an impeachment. What is your take on this?
Well, that wouldn't be my focus. My focus is more on the law than on the facts. I think much of the evidence was hearsay, but the rules of evidence are unclear in an impeachment case. The Chief Justice [of the US Supreeme Court] presides over an impeachment trial in the Senate. The Chief Justice would have to rule as to whether or not hearsay evidence is or isn't admissible in an impeachment proceeding. We've never had that issue resolved. It's an open issue of law.
If I were a defender of the President, I would not be focusing on the hearsay issue. I'd be focusing on, even if hearsay is true, it wasn't an impeachable offense. But it's perfectly reasonable to argue that it was hearsay for purposes of telling the American public that hearsay is not as credible as direct evidence. That's a good point — that when you have a case built on hearsay, it shouldn't be given the same credibility as a case that's built on eyewitness or ear witness testimony. The legal issue about the admissibility of hearsay in an impeachment case is up in the air. It's not resolved.
If, in the upcoming hearings, there is actual evidence, proof, that there was a quid pro quo would that change anything?
It would not be an impeachable offense. If there were a tape recording of the president saying, "I will not give you a single penny unless you open an investigation that helps me win the next election,” that would be a deep political sin, but it wouldn't be a crime. It can't be bribery to get information about your political opponent from a foreign government. That's just not a crime. Maybe it should be, and maybe Congress would have the power to make it a crime, but they haven't. You can go through the statute books, and there just is no such crime.
You said Democrats can't distinguish political sins from actual crimes. What are impeachable offenses according to the US Constitution?
There was a great debate at the constitutional convention. One group of people wanted it to be maladministration — that is being a bad president. They wanted that to be the grounds for impeachment, being a bad president. That was voted down because the father of the Constitution, James Madison, said he did not want to turn America into a European parliamentary democracy. Obviously, in England and Switzerland, and many other parts of the world, if a prime minister loses a vote of confidence, that prime minister is removed from office. That's exactly what the United States does not want to do.
The United States is not a parliamentary democracy. It is a republic. A republic has a strong president. What Madison says is we don't want to see the president serve at the will of Congress. They introduced four very, very stringent criteria before a president can be impeached. It has to be one of the four crimes. The four crimes are: treason, which is defined in the Constitution; bribery, everybody knows what bribery means, there are statutes about it; or other high crimes and misdemeanors. High crimes mean crimes involving governance.
For example, Bill Clinton was improperly impeached because his crime was a low crime. It was a crime involving his own personal life, not a crime of governance. What was testified to yesterday [the first day of hearings] doesn't fit any of those categories. Congress is not above the law. They can't just make it up.
After the first day of hearings, Democrats have shifted their accusation point from “quid pro quo” to “bribery.” From what you’ve seen presented in the hearings during the first days, do you see evidence that Trump committed bribery?
When the former ambassador to Ukraine, Marie Yovanovitch, was testifying, Trump was tweeting negative comments. Was that an act of "intimidating a witness?”
No. Anyone is entitled to criticize and attack a witness. There was no threat.
What is your opinion on how the Democrats have laid out the whole impeachment process?
I don't think they have laid out an impeachment process. I think they've laid out a political process case. What they're doing is using the impeachment hearings as a campaign event to run against the president. What they're doing is using political arguments and potential political sins, and they're using it in the context of an impeachment hearing, which is an improper use of an impeachment hearing.
If I were the Republicans, I would have started yesterday by saying, "You can't put on any witnesses until you tell us how that witness will testify as to treason, bribery, or other high crimes and misdemeanors. Unless you can show that the witness is going to testify about one of those four categories, that witness's testimony is irrelevant. In an impeachment proceeding, it should not be allowed to go forward." You want to have hearings on foreign policy, that's one thing. You can do that, but if you call it an impeachment investigation, you cannot introduce evidence that does not relate to an impeachable crime.
A question about the whistleblower. Should he or she be identified?
No. The whistleblower has the right to have his name kept secret and protected. The whistleblower has a right not to be retaliated against. But the whistleblower should not have spoken to the members of one staff, the Democrat, Adam Schiff. Once the whistleblower made his identity known to one member of Congress or the staff of one member of Congress, then other members of Congress have the right to know that and have the right to interrogate him or her in closed proceedings.
I think that if the whistleblower wants his name or her name to be kept confidential, that is his right, under the statute. If somebody reveals it, that's not a crime. The only thing that's illegal under the statute is to retaliate against the whistleblower. Nobody has suggested any retaliation against the whistleblower.
Adam Schiff claims that he had never spoken to the whistleblower. What if there is proof that, in fact, he lied about this?
He may not have spoken directly, because that's the way congressmen operate, but members of the staff did. There's no secret about who spoke there. The public is entitled to know the truth. Exactly who spoke to him [the whistleblower], how long did the conversations occur, what did he say? Those are all issues that don't go to the identity of the whistleblower. Anything that doesn't directly identify the whistleblower is fair game, or what other members of Congress should be entitled to. Especially if this is an impeachment hearing, the rule has to be that both sides have equal access to witnesses, both sides have equal ability to call witnesses. You can't have an impeachment hearing in which one side has an advantage over the other.
Alexander Hamilton said that in Federalist No. 65. He said an impeachment should never turn on who has more votes in Congress. It should turn on the guilt or innocence of the person being impeached.