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An Interview with Alan Dershowitz
An avowed democrat and life-long civil libertarian, attorney Alan Dershowitz is no stranger to controversy. An author, constitutional law scholar and Harvard Law School professor emeritus, Dershowitz has the distinction of having advocated before the Senate against the impeachment of both President Bill Clinton and President Donald Trump.
Fresh from a heated debate in Beverly Hills with USC Professor of Political Science Robert Shrum on Feb. 17, the Courier connected with Dershowitz this week for an exclusive interview in which he delves further into his stance that there is no such crime as abuse of power.
BHC: You were quite vocal in your opposition to the impeachment of President Trump. You even wrote a book about it. Now that it came to pass and he was acquitted, what lessons do you think the country has learned?
Alan Dershowitz: I don’t think they’ve learned any lessons. I don’t think anybody has changed their minds. We live in an extremely divided atmosphere. I would have hoped that the lesson would be that you don’t impeach a president unless there’s strong bipartisan support and unless there’s overwhelming support in the country. That would be the appropriate lesson. That’s the lesson that Alexander Hamilton and James Madison wanted impeachment to serve. But the democrats have decided to weaponize it for partisan purposes. Just like the republicans weaponized it back when Bill Clinton was impeached. So, I don’t think Americans are in the mood these
days to learn lessons. They just stick by their entrenched views and everything that happens just reinforces those views. We live in very, very dangerous times. People aren’t open minded. People just don’t want to hear opinions or change their minds or listen to the facts. They just go with their prejudices on all sides.
Do you feel that his acquittal will be tainted by the fact that there were no witnesses?
No. Absolutely not. There should have never been witnesses because there was never an impeachable allegation. That is, none of the allegations against him were constitutionally impeachable. There’s no such impeachable offense as abuse of power, obstruction of justice. So no matter how many witnesses were called, it would have still been unconstitutional to impeach him under those grounds.
During the Clinton impeachment you argued that no underlying statutory crime was required for an impeachment. But you argued the opposite for Trump. What changed your mind in the interim?
No. I still don’t think there’s an underlying statutory crime that was required. I think criminal type behavior akin to treason or bribery is required. I didn’t think that back in 1998, or whenever it was, because that wasn’t the issue. The issue in those days was whether or not Clinton’s perjury was a high crime. And so I didn’t focus on that then. I did the research. That’s what scholars do, they do more research and they change their views.
And I changed my mind, the way many scholars did. I don’t change my views according to anything partisan. I change my views because I know more and I learn more and there’s more scholarship and more research. I think now you need criminal type behavior akin to treason and bribery. That doesn’t have to be a statutory crime, but it has to be criminal-like behavior. It can’t be anything like abuse of power or obstruction of Congress, I’m convinced of that.
Can you expand on what you said at trial, that a president acting in good faith for the good of the country can’t be liable for abuse of power?
I didn’t say that. If you read what i said, I said, as long as he acts legally. If he does anything unlawful, he can be charged. There’s no such crime or impeachable offense as abuse of power. It’s just not in the Constitution.
When is a President’s abuse of power an impeachable offense?
Never. Abuse of power is simply never an impeachable offense. Never. No matter what. You have to charge a crime or a criminal type behavior. So abuse of power is never [that]. Forty of our 45 presidents have been accused of abuse of power and I said that on the floor of the Senate.
Can you clarify exactly what is you said on the Senate floor and share the precise now infamous quote?
What I said was, the only thing that would make a quid pro quo unlawful is if the quo were in some way illegal. In other words, if it’s illegal, then a quid pro quo would be unlawful. That if there were corrupt motives, or a kick-back, then that would be impeachable. But abuse of power, that in and of itself is not a constitutionally permissible criteria for impeachment.
At last night’s debate, Professor Shrum said, “I think what the President did to the Ukrainians was exactly extortion.” Do you agree with that and if so would that be sufficient grounds for impeachment?
No of course not. They should have charged him with it. If they had charged him with extortion, that would have been an impeachable offense. Then we’d have a very different process. But the democrats in the house did not charge him with extortion. They charged him with abuse of power. You can’t just change it because Bob Shrum thinks it’s extortion. It’s not technically extortion under the law, but the more important thing is they didn’t charge him with extortion. Had they charged him with extortion, the whole debate would have been different. That would be an impeachable offense, extortion. Or bribery. Or perjury or anything of that kind. But you can’t impeach a president because you think he’s abused his power. Every president virtually has been accused of abusing his power.
President Trump admitted he sent Rudy Giuliani, acting as his personal attorney, to Ukraine to negotiate a deal just days after the Senate voted to acquit him. How do you reconcile this?
There’s nothing to reconcile. You have to charge a president with an impeachable offense. If they had charged him with an impeachable offense, then the evidence would be relevant. But when you don’t charge him with an impeachable offense… Let’s assume that they charged you with the crime of not being nice. There’d be no evidence. It’s not a crime not to be nice. You are nice. But it’s not a crime not to be nice. You have to charge an impeachable offense, that’s the key. And abuse of power is not an impeachable offense. It’s not in the Constitution. It wasn’t contemplated by the framers and it would be unconstitutional. It was unconstitutional to charge him for abuse of power. The House of Representatives acted unconstitutionally by charging him with abuse of power. That’s not an impeachable offense. That’s like charging him with not being nice.
Was there anything wrong with him having sent Giuliani to negotiate a deal?
That’s not the issue. That’s something you should vote on. If you think there’s something wrong, you should vote against him. If you don’t think there’s something wrong, well that’s for voting. That’s not my expertise. My expertise is, was it an impeachable offense? And abuse of power is not an impeachable offense.
How important is the character of a president to a nation?
A character of a president is very important in deciding who to vote for. But it’s utterly irrelevant in terms of impeachment. It’s very important to a nation, and that should be a factor in everybody’s decision of who to vote for. But it’s not relevant to the criteria for impeachment.
Many who have followed your career have seen you change from a civil libertarian to a conservative outside the mainstream.
Absolutely not. I’m one of the few civil libertarians left. All my positions are civil libertarian positions. What’s changed are many people on the left no longer care about civil liberties. They no longer care about due process or free speech. I haven’t changed one bit. I’ve taken the same position with regard to the impeachment of Richard Nixon, the impeachment of Bill Clinton and the impeachment of Donald Trump. Now you can criticize me for not changing, but I haven’t changed one bit. I’m still a liberal civil libertarian.
How important is adhering to the Constitution to the continued prosperity of this county?
I’m not so interested in the continued prosperity of the county, that’s up to the economists and others. I’m interested in the continued liberty of the country and the Constitution is critical to the liberty of the United States and to civil liberties and to due process. As I started my speech in the Senate, I’m here because I love my country and I love the Constitution and I’m not here on behalf of any particular individual. I’d be making exactly the same speech if it were Hillary Clinton or any other liberal democrat.
How much of a threat to our civil liberties is the divisiveness that we’re now witnessing in the country?
I think the divisiveness is very dangerous. I think today the people on the left pose at least as great a danger to civil liberties as people on right. People on the left today have neglected free speech, due process and open dialogue and the Constitution. They see the ends as justifying the means and I don’t believe that.
Is truth an important value?
Truth is an absolutely important value. Truth and consistency. And I’m appalled at how the democratic leaders lie about my speech. They distorted it and had me saying things the opposite of what I said. I don’t believed a president can do anything to get reelected. I think there were a lot of lies told on the floor of the senate by democrats. Particularly about my speech, they deliberately and willfully distorted what I said for their own partisan act. I heard lies from the democrats and it hurt me because I’m a democrat.
What kind of damage do you think an impeachment proceeding brings to the country?
I think it’s terrible damage. I think it weaponizes impeachment. It normalizes impeachment. It turns it into a partisan weapon. I think we will suffer the consequences of this impeachment for a long time. It never should have happened.
With the people that you’ve represented, and you’ve described some of them in pretty harsh terms, how do you reconcile that within yourself?
All clients are troubling. The First Amendment says every defendant has the right to a lawyer and I believe in that strongly and I will continue to represent the most controversial, the most despised people. And that’s required by our Constitution, and I support that.
Who’s been your favorite client of all times or most interesting client?
Natan Sharansky. Sharansky was a Soviet dissident who I defended when he was in Russia. He’s the one I most closely identified as a human being. Because he was a dissident. We could have easily exchanged places. He could have been the American lawyer and I could have been the Russian dissident, the Soviet dissident.
Anything else you would like to share with Beverly Hills Courier readers?
Yes. I hope everyone will ask themselves would they have passed the shoe on the other foot test. Would they be taking the same positions on impeachment, did they take the same positions on impeachment when Bill Clinton was impeached? What I demand is a single standard, a single standard for civil liberties, a single standard for justice, a single standard for impeachment. Today my civil liberties come out in favor of Trump. If Hillary Clinton had been elected, and she was getting impeached, I would be doing everything on her behalf and then people on the left would love me and people on the right would hate me. But that’s what it means to be a civil libertarian, you maintain the same position regardless if the person being impeached is a liberal or conservative or a republican or a democrat.