Last week it was announced that Alan Dershowitz will join Donald Trump’s legal team, and over the weekend he laid out his specialized role. He will advance the argument that the charges the House impeachment lays out do not rise to the level of high crimes or misdemeanors laid out in the Constitution.
Almost immediately, a profound confusion occurred as to what this means. Take this exchange on Twitter:
If this is so, it’s essentially asking Congress to buy a self-neutering argument. And Madison was worried Congress would be the pushy one! https://t.co/XBqH1KICsr
— John Dickerson (@jdickerson) January 17, 2020
The underlying assumption here is that Dershowitz and by extension the Trump legal team are conceding that Trump abused power, but arguing that this does not meet the standard for impeachment. Nothing could be farther from the case. Dershowitz is arguing in the alternative, a legal and debate technique meant to preempt the other side’s arguments. Dershowitz is not conceding that the president abused power. Dershowitz is saying that even if he did, and Trump and his team hold he did not, it still wouldn’t meet the criteria for removal.
Arguing in the alternative is a fairly common practice, but also a risky one. The danger is that it can confuse juries and make it appear the defense is admitting wrongdoing when it isn’t. In this case, there are two juries, the 100 senators, who are likely savvy enough to understand what Dershowitz is doing, but also the jury of public opinion, which is more susceptible to the idea that some kind of towel is being thrown in.
For months, many on the left and even some on the right have believed that the president’s defense would or should eventually move away from a case based on the facts to a defense based on the infraction not meeting the impeachment standard, Jonah Goldberg essentially argued this is in The New York Post in back in October. But this hasn’t happened, Trump’s primary defense still is as it always has been: that the phone call with Ukrainian president Zelensky and the delay of military aid were perfectly legal and within the president’s authority.
But that will not stop the president’s opponents from trying to frame Dershowitz’s argument as either an admission of guilt, or at least a hedging of the bet. And because this is a television event, Dershowitz will need to be very careful. If even once he forgets to caveat his position, if instead of saying, “Even if the president was out for political gain, it’s not impeachable,” he says, “The fact that the president was out for political gain does not make this impeachable,” it will be a soundbite heard ’round the world.
So why take this risky approach when the possibility of the president being convicted and removed is so low? There is a potentially massive upside to the gambit. At this point, Democrats’ fierce last stand on impeachment is calling for new witnesses, including former National Security Adviser John Bolton. To get those witnesses, Democrats need four moderate or politically vulnerable Republicans to vote for it. Dershowitz’s argument in the alternative could give those senators the off ramp they need to acquit without calling witnesses.
One can see a Sen. Susan Collins or Sen. Mitt Romney saying that she or he found Dershowitz’s argument compelling and sees no reason to go any further, given that even if Trump did delay aid for his own political benefit it is not sufficient reason to remove him from office. This would have the added benefit of allowing them to acquit without actually giving the president’s actions a stamp of approval.
By their argument, Obama should have been impeached for “stimulus”. It didn’t accomplish its purpose and he did it for political gain. Likewise, he should have been impeached for signing Obamacare; he lied to get it passed, blocked the onerous provisions so the voting public would not hate it… all for political gain. He should have been impeached for not reinforcing the Benghazi consulate and then lying about why it was sacked… all for political gain. He also went against all conventional wisdom and advice and pulled all US troops out of Iraq, allowing ISIS to grow and spread… for political gain. Once again, the left does not see the implications of their actions; they only see the short-term gain.
Utter nonsense Curt. Surely even you have to realize that The Federalist, much like Dershowitz, Conway, Hannity, and now the entire GOP Senate with their dark-of-night-cover-up scam of a trial are no more than a spin machine out to protect Trump at any cost. Truth and reality have escaped these people long ago.
On ABC’s “This Week”, Dershowitz said: “Congress was wrong in impeaching for these two articles,” “They are not articles of impeachment. The articles of impeachment are two non-criminal actions.”
George Stephanopoulos asked him this week “Is it your position that President Trump should not be impeached even if all the evidence and arguments laid out by the House are accepted as fact?”
Dershowitz: “When you have somebody who, for example, is indicted for a crime — let’s assume you have a lot of evidence — but the grand jury simply indicts for something that’s not a crime, and that’s what happened here, you have a lot of evidence, disputed evidence, that could go both ways, but the vote was to impeach on abuse of power, which is not within the constitutional criteria for impeachment, and obstruction of Congress.”
Dershowitz also stated. “My mandate is to determine what is a constitutionally authorized criteria for impeachment.”
Pushed further Dershowitz said, “There’s a big difference between what’s OK — what’s OK determines … who you vote for.”
Now let’s stroll down memory lane to 1998 with Dershowitz’s comments of Clinton’s impeachment. to CNN’s Larry King:
Republicans have never had a defense for Trump’s crimes. It went from “he didn’t do it” to “okay he did it but it wasn’t that bad” to “okay it was bad but that wasn’t what he meant” to back to “it wasn’t that bad and even if it is he’s above the law to even if he isn’t above the law it still doesn’t matter because we’ll hide any evidence”.
@Ronald J. Ward:
The arguments changed as the accusations changed.
But you just think they were arguing the same point.
What exactly is the crime?
There is no crime alleged in the Articles cause they couldnt find one.
The Aid was delayed until changes were made in Ukraine dealing with corruption.
No one is above the law except the Biden Crime family using US Aid as a slush fund. Add Kerry and Pelosis kids. You cant investigate a political rival, unless its Trump (cross fire hurricane, mueller investigation, spygate).
Your lame Tyranny is too easy to knock down in multiple ways.
He withheld aid…the aid was delivered
He bribed….they didnt know the aid was delayed and they flat out deny were bribed, no victim
He wanted Biden investigated…there is a confession on film, if a crime has been committed it is the Presidents duty to investigate that. We have a treaty with them to do just that.
Sure all the same accusations but different defenses.
@Ronald J. Ward: What a shock; you only use the part of Dershowitz’s remarks that you like, not the rest of his remarks.
But, like the rest of the butthurt crybabies pushing this impeachment blight on the nation, lying is absolutely necessary to promote it. What is the crime? Where is the evidence? You have no video of a confession as we have with Biden and not a single fact witness with any first-hand or documented evidence to support impeachment; just “Trump’s mean and we don’t like him. He abuses his power when he doesn’t do what WE want him to do. Waaa.”
Anytime you feel like supporting your argument, feel free to provide any of that evidence.
Yes, it’s true Dershowitz denied his very own words as the entire party of Trump have evolved into the Orwellian ” don’t believe what you see or hear” propaganda.
@Ronald J. Ward: No, he didn’t “deny his own words”. YOU merely peeled off the part you wanted to hear. The original interview made it clear what he believed the Constitution regarded as impeachable, and it AIN’T “Our feelings got hurt and all our candidates SUCK.”
Read the article to prevent looking any more ignorant than you already do.
@Ronald J. Ward: This is the Dems just bracing for the inevitable acquittal, looking for some “he admitted it!” nonsense so they can keep their base riled up like a bunch of rabid dogs.
If anything, distorting the words and truth to say Trump et al are “conceding” to committing a crime is just the Dems conceding defeat about the whole Impeachment.
No wonder Trump has twice the approval rating of Congress. I heard one of the WH staffers snatched one of Nancy’s “Impeachment Pens” for Trump, who is going to use it to sign everything for the next 5 years. How fitting.
He’s saying that it might not have happened, and that even if it did, it isn’t grounds for impeachment.
These are the words of a high-profile, high-priced defense attorney, who knows that the case against his client is very strong, and is trying to plant seeds of doubt that can be gradually built up as the trial progresses. Think O J Simpson—except in this case eye witnesses have been kept from testifying by the defendant, who has also locked down as much documentary evidence as possible.
Dershowitz has been hired to work public opinion as much as the jury, in an effort to minimize the political damage when it quickly registers that the Senate trial is a White House-orchestrated cover up. He may find his task difficult. In his opening statement, Adam Schiff just detailed with great clarity and eloquence how the trial is being rigged in the Senate. Any reasonable person will be able to understand what he said and see the truth of it.
If this case was “strong” don’t you think someone somewhere would be able to provide some evidence of a crime when asked? Instead, all you have is OPINIONS and rumors. NO evidence, NO direct knowledge… which is why Democrats are asking for MORE information now.
Yeah, Schitt would now about rigging proceedings, wouldn’t he? However, what he’s facing is a proceeding that is not totally rigged in his favor, as the one HE presided over was.
Someone can: the thirteen witnesses lawfully subpoenaed by the House who refused to comply at the orders of the man under investigation, who McConnell also intends to prevent from testifying at the Senate trial.
The majority of American voters aren’t as stupid as republicans like to think. Nor are they on board with the sort of behavior that republicans want them to condone.
@Greg: House withdraws subpoena for top Bolton aide – POLITICO
So important he himself said aww F- it we dont need no stinking courts, we have the right to sit in the oval office and dictate all the Presidents actions.
Holding up their unopened copys of pocket constitutions screeching they have SOLE POWER(abuse of power)
Nice they held that out of context clip about Trumps saying he has power to do what he wants. Having nothing to do with impeachment investigation at all.
And more rightly, they didn’t condone the sort of one-sided, non-judicial behavior the Dems staged for the inquiry.
When you hide your star witness and conduct legal proceedings in the dark, without lawful due process for the accused..and you can’t even come up with a crime after that…you don’t get to take umbrage at anyone for anything.
The desperation, and corruption, of the Dem Party is so palpable. It’s fun to watch them finally being drained.
McConnell screwed up. He was too obvious about rigging the Senate proceedings per White House instructions—as in, he publicly announced that he was doing it. You can’t have anything remotely resembling a proper trial when you’ve locked out existing documentary evidence, House transcripts, and known witnesses with direct, first-hand knowledge of the facts whose sworn testimony has never been heard. That was a bridge too far.
Now republicans have a choice to make: either provide a proper trial with witness testimony and and an impartial evaluation of the facts revealed in accordance with the Constitution and their sworn affirmation oath, retaining their integrity in the process; or fail to do so, and provide democrats with a fearsome weapon in the coming election. There is no middle path.
@Greg: All Democrat witnesses stated what they thought and what they heard; none had any evidence that Trump did anything wrong whatsoever. If you can’t find one shred of evidence supporting any impeachable crimes (what happened to “bribery”?) what makes you think those on Trump’s National Security team has anything more useful? And, if they House wanted them so badly, why didn’t they press their subpoenas? You are all simply grasping at straws; you KNOW there is nothing there, particularly since Trump himself provided the transcripts of that call you there was NOTHING there.
So Trump wanted to use the same rules as were used in the Clinton impeachment? That would be an odd demand from the subject of the impeachment.
Why would the House expect special consideration in the Senate when they denied Republicans EVERY request for FAIR TREATMENT in the House? Maybe that’s something Democrats should have considered as they trampled every aspect of the Constitution and justice just to TRY and make their stupid impeachment articles appear justified. Democrats haven’t even released all the secret testimony they collected; apparently there was something there that didn’t include the speculation, opinion, rumor and assertions that supported their foundation of lies.
@Nathan Blue, #12:
The House process was an investigation and deliberation to determine if charges should be filed, analogous to a Grand Jury hearing. I presume you’re aware that no judge is present at Grand Jury hearings, and that no determination of innocence or guilt is ever made. Its only function is to determine if there should be a trial. The trial is where testimony is heard, evidence is presented, and an impartial judgement is rendered.
Because they are the ones who where directly involved. They have first-hand, eye witness knowledge of exactly what happened, because they were participants, following the President’s orders.
Trump has himself prevented all of those people from testifying, while simultaneously claiming democrats have presented no first-hand testimony. He has himself blocked access to documentary evidence, while simultaneously claiming democrats have presented no documentary evidence.
This is ridiculous to the point of absurdity. It’s the basis of the Second Article of Impeachment. It’s why members of Trump’s defense team are making the equally absurd claim that Abuse of Power is not an impeachable offense.
@Bill Burris: greggie will never understand the responsibilities of the HoR and the Senate. The HoR screwed up by not filing suit to have the Judicial Branch determine if the reason the HoR subpoenaed was valid or inter-feared with the separation of powers. Pelosi was in too much of a hurry trying to destroy the GOP chances of winning the 2020 election. She reached too far and screwed up! Now, she thinks the Senate should do the job she failed at doing.
@Greg: So why didn’t the House allow Republicans to investigate if Trump actually had good cause to expect Ukraine to finish their corruption investigations? (spoiler alert: he DID)
HOW were they directly involved? WHAT were they directly involved in? You have no evidence of anything to INVESTIGATE; all you are doing is grasping at straws and hoping to stumble across SOMETHING. Meanwhile, Biden ADMITTED on video he extorted Ukraine, but Trump is not allowed to inquire about it… because Biden (like Trump) is a “candidate”. NOTHING about your accusations have any semblance to truth.
@Randy: They knew that if they went to court, it would all be thrown out. They can’t present enough justification to invade the sanctity of the Executive Branch. Everyone sees their fishing as exactly what it is: desperate attempts to justify their worthless existence.
It isn’t the job of the House to conduct an impeachment trial, with all that a proper trial entails. The House makes no determination concerning guilt or innocence. It is only the job of the House to determine if a trail is in order. That is decided by a simple majority vote of the people’s democratically elected representatives. That’s how it works, in accordance with the U. S. Constitution. The House process was entirely in compliance with the Constitution.
@Greg: yes greggie, we all know that, but to determine if there is evidence to have a trial, there has to be discovery of facts. That little thing was ignored by the HoR. The HoR is equivalent to the prosecution in a trial. The prosecution needs to determine the facts beyond a reasonable doubt. The HoR failed in that effort when they failed to have the Justice department determine what is separation of powers and what is legal criminal exploration. The dems sucked all of you kool-aide drinkers in and your ignorance is showing.
@Greg: A judges role is limited to contempt issues and plays no role in the actual grand jury proceedings. The Prosecutor and Grand Jurors are able to ask the witnesses questions during their testimony, but there is no other persons present in a grand jury except the assistant prosecutor, the witness and the 12 grand jurors.
But damn there were no actual witnesses called. Efforts to get witnesses were dropped.
All evidence gathered is then Provided to the defense what is Schiff holding from White House counsel and the Senate exculpatory perhaps?
Auditions for public hearing held in secret, selective leaks of information by Schiff, if done by a grand jury prosecutor he could face charges and prosecution, risk the entire case be dismissed.
Trump methodically blocked that process, using his powers of office to do so. He kept people from testifying and locked down documents related to the investigation—even records belonging to witnesses who did come forward to testify. He misused his powers to obstruct a congressional investigation into his own conduct. That’s what the Second Article of Impeachment is about. This guy crosses lines as if he were oblivious to them. He doesn’t seem to realize or care that proper presidential conduct is defined by constitutionally-based laws and boundaries. They are what makes the United States a constitutional republic in more than name only.
No judge is present at Grand Jury proceedings. The proceedings are led by a Prosecutor. There is no defense attorney. The defendant generally has no right to present or argue his case, to be present, or even to be informed that such proceedings are taking place. It is nothing at all like a court trial. The only purpose is to decide if there should be a trial.
What the House does in an impeachment is actually a far more open and public matter, but as with a Grand Jury, they only decide if there should be a trial. They make no decision regarding guilt or innocence. The trial, with all a proper trial involves, is conducted in the Senate.
@Greg: A prosecutor does not go into court and tell the judge, “Dude in order for me to get a fair trial you guys need to gather my evidence for me. cause there was a vote by my assistants that this guy is guilty of something. We are sure of it, there is no question in our minds. Call the Jury swear then in and have them get my desired witnesses and evidence.”
We did give this guy every opportunity to prove to us he is not totally guilty until he proves his innocence.
@Greg: Of course, Nancy had to get that vote by threatening her House members with withholding of DNC support for campaigns and withholding the USMCA from a vote so they would have nothing accomplished for their constituents unless they voted how she directed. But, you know… it’s all about “justice” and the Constitution… right?
The House process was better suited for Nazi Germany, the Soviet Union or North Korea. It was as far removed from the Constitution as was humanly possible. Denying the defense the right to defend is NOT in the Constitution, just so you know.
The President has every right to protect his Executive Privilege. Your crybabies could have taken their demands to court, but of course they know that having an objective court tell them they didn’t have enough evidence of any criminal activity to be violating the separation of powers would look to their weak-ass butthurt case. So they decided to just whine about it instead. Trump, on the other hand, released THE PHONE CALLS, which removed all questions of criminality, but Democrats decided to simply LIE about what their eyes actually saw.
He kept people from testifying and locked down documents related to the investigation—even records belonging to witnesses who did come forward to testify.
@Greg: You still do not get it greggie! The HoR screwed up. They failed to request Judicial Branch determination if the issues were separation of powers or criminal intent. You are really stupid if you do not understand this. Maybe you should just cut your losses and stop writing about this issue before you actually require involuntary incarceration in an insane asylum.
Incorrect. It broke from convention and good legal practice by inviting a group of anti-trumpers to claim we should impeach Trump “just because”.
@Randy: They deliberately avoided it because the court would have slapped them down and they would have to admit their impeachment had no validity.
@Deplorable Me: greggie is typical of the Trump derangement syndrome. Unfortunately, there is not enough places to house those afflicted with TDS, so some got elected to Congress and the Senate as Democrats.
He’s suppressing testimony and documents because he’s guilty as hell, and everybody with a brain understands this. They will also remember that the GOP is fully complicit in the cover-up. Democrats will be taking that with them to every November election contest.
@Greg: Tough luck you knew this was how it was going to go down.
Find a platform of non destruction then a candidate.
@Greg: greggie, you really are stupid. Until the Judicial branch determines that the President has committed a crime and is not just protecting his right of separation of powers accorded by the Constitution, the President has all of the rights to do what he is doing. The HoR by not following procedures dictated by the Constitution has allowed this to happen. The HoR had to officially vote to initiate Impeachment procedures. Then issue subpoenas. When the Administrative Branch failed to comply, then the HoR needed to sue. so the Judicial Branch could determine that either the Administrative Branch or the HoR were in the right. This would likely take more than a year until all of the testimony from both sides had been provided and that a decision is given. Your lefty buddies who controlled the HoR couldn’t wait any longer to dirty the President, so they tried to make it look like the President had committed crimes without factual testimony. Now, they look like a lot of ignorant dolts from Hicksville as their case falls flat with only hearsay testimony. The law under the Constitution is working as the Founding Fathers had planned when one branch of the government chose to exert undue power over another. Just because the members of the HoR are infected with Trump Derangement Syndrome doesn’t make their cause right or legal. Anyone who paid attention in 7th grade Civics class knows this!
That, or he is so full of hate for President Trump that he will not allow the truth to enter his brain. Either way, he is a pathetic creature.
@Greg: He hasn’t “suppressed” anything. Not a damned thing. He is protecting the Presidency. Everything happening sets precedents and he doesn’t want to set the precedent that the legislative branch tells the executive branch what to do. The Judiciary branch, through the law, can only do that.
But Democrats did not want to go to the courts and have their demands struck down for lack of merit; that would expose fully their hollow accusations. Democrats are doing nothing but playing games, trying to damage Trump enough so they might foist one of their jabbering idiots on the nation instead of him.
The only cover up being covered up is Biden’s corruption. But, that is about to be totally revealed.