Trump's conduct 'does not rise to the level of an impeachable offense': Dershowitz

Alan Dershowitz, who joined the president's legal team as a constitutional consultant, is interviewed on "This Week."
7:36 | 01/19/20

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Transcript for Trump's conduct 'does not rise to the level of an impeachable offense': Dershowitz
author of the book "Guilt by association." Thank you for joining us. You just heard congressman Schiff calling your position absurdist. It's the same position that was successfully argued by former justice Benjamin Curtis in the trial of Andrew Johnson. Andrew Johnson was impeached in part, for noncriminal conduct, and Curtis who was the dissenting judge in the red Scott case has been called absurdist, namely when you read the text of the constitution, bribery -- treason, bribery, or other high crimes and misdemeanors, other really means that crimes and misdemeanors must be of a kin to treason and bribery, and he argued very successfully winning the case that you needed proof of an actual crime. It needn't be a statutory crime, but it needs to be a criminal behavior, criminal in nature, and the allegations in the Johnson case were much akin to the allegations here. Abusive conduct, obstructive conduct, and that lost. So I am making an argument much like the argument made by the great justice Curtis, and to call them absurdist to, you know, insult one of the greatest jurists in American history. The argument is a strong one. The senate should hear it and I'm privileged to be able to make it. I have a limited role in the case. I'm not involved in the strategic decisions about witnesses or facts, but I will make a strong argument that justice Curtis was correct, and that congress was wrong in impeaching for these two articles. As you know, the house materials have cited crimes that were committed as well. They weren't elements -- they are not articles of impeachment. The articles of impeachment are two noncriminal actions, namely obstruction of congress and abuse of power. But let me -- That's what has to be voted on by the senate. Is it your position that president trump should not be impeached even if the arguments laid out by the house are accepted as fact? That's right. When you have somebody who for example, is indicted for 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 justice. Those are the kind of things that led Hamilton and Madison -- talk about nightmare, to regard that as the greatest nightmare. Number one, giving congress too much power to allow the president to serve at the will of congress, and number two, as Hamilton put it, the greatest danger is turning impeachment into question of who has the most votes in which house, and rather than having a consensus and a broad -- broad view of impeachable conduct -- The brief filed by the president's attorneys asserts several times the president did nothing wrong with Ukraine. Do you agree with that? I didn't sign that, and I didn't even see the brief until after it was filed. That's not part of my mandate. My mandate is to determine what is a constitutionally authorized criteria for impeachment? Abuse of power is so open-ended. From Adams to Jefferson, to Lincoln to Roosevelt have been accused of abusing their power. It weaponizes impeachment for partisan purpose. I understand that's your position, but you are a citizen. Is it okay for a president to solicit foreign interference in our election? There's a big difference between what's okay. What's okay determines what and who you vote for. I'm a liberal Democrat who has been critical of many of the policies for the president. I'm here as a constitutional lawyer, a lawyer who has taught for 50 years, constitutional and criminal procedure. Taught a course on impeachment, taught a course on constitutional litigation. I'm here to lend my expertise on that issue and that alone. That's the primary issue. So this is okay? If it is not impeachable, this should result in an acquittal, regardless of whether the conduct is okay by you or by me or voters. That's an issue for the voters. I'm asking what you think. As a lawyer in the case, I'm not going to present my personal views on what I think. I think that the conduct does not rise to the level of an impeachable offense. In your recent book on impeachment, you took a stand. You said, quote, an American should not collude with a foreign power in an effort to enhance his candidacy. I agree with that. Isn't that what happened I think many presidents in the past have made foreign policy decisions to enhance their electoral prospects, and if people think that this president did that, that's a factor that should enter into the decision who to vote for, among many, many, many other factors. I'm not here for a political discussion. I'm a liberal Democrat who voted against president trump and voted for Hillary Clinton. I'm here to present a constitutional argument the way I did in the Clinton impeachment and the way I argued when I was on the national board in the Nixon impeachment. The filing says very clearly the president did nothing wrong, and you're not willing to endorse that statement? I did not read or sign that brief. That's not part of my mandate. My mandate is to present the constitutional argument, and if the constitutional argument succeeds, we don't reach that issue because you can't charge a president with impeachable conduct if it doesn't fit within the criteria of the constitution. I'm going to be echoing an argument from a former justice of the supreme court, and I would hope the senate would be informed by that argument, and the argument prevailed in the Andrew Johnson case. It's anything but an absurdist argument. It's a strong and powerful You voted for Hillary Clinton. Will you vet to re-elect president trump? I don't know who's going to run against him, and I don't know what the elements will be, and I don't generally disclose who I'm going to vote for. You just did. I have always voted Democrat. Final question. Senator Rubio and others have said the senate should not consider new evidence, documents and witnesses, that it's the job of the senate to work from the evidence compiled by the house. Is that correct as a matter of constitutional law? The constitution doesn't speak to that issue at all. It's an open issue, and to be decided by the house with its rules, and the senate by its rules. The constitution really says the senate is the judge, and whatever the senate decides by a fair vote, the one thing that's very clear is that if witnesses are permitted on one side, they have to be permitted on both sides, and if witnesses are permitted, it will delay the trial considerably because the president will invoke executive privilege as to people like John Bolton that will have to go to the court and have a resolution of that before the trial continues. That's not a constitutional issue. The senate makes the decision. The chief justice presides, and people will have to decide whether to seek witnesses and whether the delay is warranted. My argument is going to focus purely on the constitutional issues. Thank you for your time this morning. Thank you.

This transcript has been automatically generated and may not be 100% accurate.

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