The Senate voted to acquit President Trump Wednesday on the two articles of impeachment passed by the House. One member of Trump's legal team was retired Harvard Law professor Alan Dershowitz. WGBH News has checked in with Dershowitz throughout the trial. Today, he spoke with WGBH All Things Considered anchor Arun Rath about the acquittal.
Arun Rath: So the president has now been acquitted. As a member of his legal team, that's the result you wanted, clearly. Are you proud of the role that you played?
Alan Dershowitz: I'm proud of the role that I played in defending the Constitution. I thought the Constitution was under attack by those who would expand the criteria for impeachment to include such vague and open-ended terms as abuse of power and obstruction of Congress. And I think that was a serious mistake on the part of the House, and it would have created a precedent under which virtually any president who has an opposing party controlling the House would have been impeached. It would have normalized impeachment and turned it from a three-time since the establishment of our country to an every decade, normal part of politics, much like votes of no confidence are in parliamentary Europe. So I'm proud of the role I played in helping to preserve what the framers intended impeachment to be.
Rath: In making your case against impeachment on the Senate floor, you made an argument that has brought on a lot of controversy and surprised a lot of people, apparently. You said, "Every public official that I know believes that his election is in the public interest. And mostly you're right. Your election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that can not be the kind of quid pro quo that results in impeachment."
Today we heard Senate Minority Leader Chuck Schumer give his gloss of that argument, which is that you're saying the president can do anything he wants.
Dershowitz: Well, that's just a categorical lie. In the sentences just before that, I said that if a president does anything illegal, he can obviously be impeached. My whole speech in front of the Senate was that a president has to commit a crime or criminal-type behavior akin to treason or bribery. So, it totally mischaracterizes my argument to say the president could do anything. The president can do anything legal, lawful. And the fact that he may be doing it, if it's proper, in part out of a motive to help his own reelection, would not turn lawful behavior into illegal behavior. I don't think anybody disagrees with that. And that's what I said.
But, in order to try to damage my credibility and the credibility of my previous arguments, people like Schumer and others, and some academics, deliberately mischaracterized that [and said] I was saying a president can do anything. That's not what I said. I said a president, if he does something that's perfectly lawful, his lawful conduct isn't turned into illegal or impeachable conduct merely because he had in the back of his mind helping himself. In fact, I gave an example. The example I gave was Abraham Lincoln sending the troops home from battle in the Civil War to vote Republican in Indiana. And obviously, he had mixed motives. His primary motive was to help the country. But, his secondary motive was to help his party. So my point was, you can't turn innocent conduct into impeachable conduct by looking at mixed motives. I never said or suggested or implied or believe that a president can do anything. The only one who ever said that a body of government can do anything was Maxine Waters, who said that Congress can impeach for anything they want. There's no law. They don't have to violate the Constitution. They can just be lawless. And my point is that the president is not above the law, but neither is Congress above the law. So, this wasn't a misunderstanding, let's be clear. This was a deliberate, willful misinterpretation of what I said for partisan purposes.
Rath: On the point, more generally, and if I mischaracterize anything, please don't be shy about correcting me ...
Dershowitz: Believe me, I'm not shy.
Rath: ...that if it requires a crime or a crime-like activity for this to be impeachable — we've heard a lot that this take runs counter to the consensus of constitutional scholars. Frank Bowman, a University of Missouri law professor, wrote a book on this. He says that the almost universal consensus in Great Britain, in the colonies, in the American states between 1776 and 1787 has been that criminal conduct is not required for impeachment.
Dershowitz: Well, he's just totally wrong. I did the research independently. I don't follow the crowd, and I have found out, of course, that in 1867, the dean of the Columbia Law School, Theodore Dwight, wrote an article about this and said that the weight of authority back then was that you needed a crime. Former Justice Curtis of the Supreme Court, who resigned in protest over Dred Scott, said that a crime was required. Various scholars said crime or crime-like behavior akin to treason and bribery. What's happened is recently the consensus has shifted. But, why should we give more credit to 21st century professors than to 19th century professors who are closer in time to the adoption of the Constitution?
Moreover, and here I make a controversial statement, but not only do I know this is true, but every academic knows this is true: if it were Hillary Clinton who were elected president, and she were being impeached on grounds of abuse of power and obstruction of Congress, the vast majority of the academics who signed letters against my view would be on my side, and they'd be praising me for making the argument. Academics are as partisan as anybody else, and they use their scholarship in a partisan way. An example, Larry Tribe was firm in his conclusion that a sitting president couldn't be charged with a crime when the president was his friend, Bill Clinton. But, when the president became his enemy, Donald Trump, Larry woke and decided that no, no, he was wrong then, that he is right now, a president can be charged even if he's sitting president. I, too, changed my mind, but not on partisan grounds. I was against the impeachment of Bill Clinton. I'm against the impeachment of Donald Trump. I would've been against the impeachment of Andrew Johnson. I changed my mind because the issue of whether or not a crime was required was not at issue in 1998. And so I didn't do the research, but I did the research more recently. And well before I agreed to speak for the president in the Senate, I came to the conclusion that you need a criminal-type behavior in order to impeach president. So, yeah, it's good for academics to change their mind, but not on partisan grounds.
Rath: Professor Dershowitz, you say that you don't follow the crowd on this. Are you as much of an outlier as it seems, as all these people are saying?
Dershowitz: I've always been an outlier. I've been an outlier on the issue of torture warrants. I was an outlier when I started teaching at Harvard Law School on the issue of the constitutionality of the death penalty. I think that's what academics should do. We should do original, creative research, go back and read the original sources, and come to our independent decisions, not follow the crowd and never, ever be influenced by politics. I passed the shoe on the other foot test. I don't care who the president is, what party the president's from. I'm going to have the same arguments. I would have made, exactly the same arguments if Hillary Clinton had been impeached. I cannot say that for most of my academic colleagues.
