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Ex-Solicitor General: Alan Dershowitz Is Wrong. Trump Is Not Above the Law & Should Be Impeached

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President Trump’s legal team offered an extraordinary new defense during Trump’s impeachment trial on Wednesday. Attorney Alan Dershowitz said that a sitting president could take any action to boost his re-election chances if he felt his re-election was in the public interest. “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz said. Trump was impeached by the House last month for freezing military aid to Ukraine in an effort to pressure Ukraine to open an investigation of Trump’s political rival, Joe Biden. Dershowitz’s claim came during a portion of the trial where senators were given a chance to submit written questions to Trump’s legal team and the House impeachment managers. The question-and-answer period continues today. The impeachment trial could end as soon as Friday if the Senate Republican leadership succeeds in blocking Democrats from calling any witnesses. Democrats are hoping to secure enough votes to get Trump’s former national security adviser John Bolton to testify. For more on President Trump’s ongoing impeachment trial in the Senate, we speak with Neal Katyal, former acting U.S. solicitor general in the Obama administration, a Supreme Court lawyer and a Georgetown University law professor. Katyal is the author of “Impeach: The Case Against Donald Trump.”

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This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: President Trump’s legal team offered an extraordinary new defense during the president’s impeachment trial on Wednesday. Attorney Alan Dershowitz said that a sitting president could take any action to boost his re-election chances if he felt his re-election was in the public interest.

ALAN DERSHOWITZ: If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.

NERMEEN SHAIKH: Dershowitz’s claim came during a portion of the trial where senators were given a chance to submit written questions to Trump’s legal team and the House impeachment managers. The question-and-answer period continues today. The impeachment trial could end as soon as Friday if the Senate Republican leadership succeed in blocking Democrats from calling any witnesses.

AMY GOODMAN: Democrats are hoping to secure enough votes to get Trump’s former national security adviser John Bolton to testify. Bolton has written a forthcoming book that Trump personally told him he wanted to maintain a freeze on military aid to Ukraine until Ukraine turned over materials related to his political rival, former Vice President Joe Biden.

NERMEEN SHAIKH: The White House is attempting to halt publication of Bolton’s book, claiming it contains classified information. On Wednesday, Democratic Senate Minority Leader Charles Schumer submitted a question about whether there can be a fair Senate trial without key eyewitnesses, such as John Bolton. This is House impeachment manager Adam Schiff.

REP. ADAM SCHIFF: The short answer to that question is no. There’s no way to have a fair trial without witnesses. And when you have a witness who is as plainly relevant as John Bolton, who goes to the heart of the most serious and egregious of the president’s misconduct, who has volunteered to come and testify, to turn him away, to look the other way, I think, is deeply at odds with being an impartial juror.

AMY GOODMAN: White House deputy counsel Patrick Philbin disagreed on the question about calling witnesses.

PATRICK PHILBIN: The point of whether this chamber should hear from Ambassador Bolton. And I think it’s important to consider what that means, because it’s not just a question of, “Well, should we just hear one witness?” That’s not what the real question is going to be. For this institution, the real question is: What is the precedent that is going to be set for what is an acceptable way for the House of Representatives to bring an impeachment of a president of the United States to this chamber? And can it be done in a hurried, half-baked, partisan fashion?

AMY GOODMAN: In a moment, we will go to Washington, D.C., where we’ll be joined by Neal Katyal, former acting U.S. solicitor general in the Obama administration. He’s a professor at Georgetown and author of the book Impeach: The Case Against Donald Trump. In a minute.

[break]

AMY GOODMAN: “Take It High Now” by the Soul Rebels. This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Nermeen Shaikh. And we’re joined in Washington, D.C., by Neal Katyal, former acting U.S. solicitor general in the Obama administration, Supreme Court lawyer and Georgetown University law professor. Neal Katyal is also the author of the book Impeach: The Case Against Donald Trump.

Welcome to Democracy Now!, Neal Katyal. We want to go right to, well, that explosive claim by President Trump’s lawyer Alan Dershowitz, his claim of executive power that says a sitting president can take any action to boost his re-election chances if he feels his re-election is in the public interest. If you could start off by weighing in on that, and then talk about the significance of what happened yesterday, where we moved to that period of 16 hours of the senators asking questions, through the Chief Justice of the United States John Roberts, who’s presiding over the Senate impeachment trial of Donald Trump?

NEAL KATYAL: OK. So, Amy, thanks. It’s great to be on your show.

And with respect to what you were saying about Professor Dershowitz, you called it a “claim” by Professor Dershowitz. I think the technical legal word is a “joke.” That is, nobody, no responsible constitutional scholar in two centuries, agrees with Dershowitz. And you can’t like chalk them all up as biased politically or something like that. You can go back decades; you’ll never find a serious scholar saying anything like what he said yesterday. And that’s for a very simple reason: Impeachment is the people’s check against an abusive president. It was laced into our Constitution by our Founders.

And the idea that a president can simply say, “Oh, I think my re-election is in the national interest, therefore I can do whatever I want,” is stupid. I mean, it’s just a ridiculous argument. It would mean, for example, that President Nixon, when ordering the Watergate break-in of the DNC headquarters, didn’t commit an impeachable offense. It would mean that a president could use the Army to go threaten Democrats who voted for Democratic candidates instead of voting for him. It could even mean that the president could shoot his opponent and say, “Hey, you know, my re-election is in the national interest, so I can do whatever I want.” You know, this is not even good — this is not even bad constitutional lawyering; it’s atrocious constitutional lawyering.

And, you know, I’d say one more point about this. This lawyer, Dershowitz, is hired by the president, so he is going out there and advocating what the president wants him to advocate. And any president who has these views has to be removed. I mean, that is the definition of why you have impeachment in there, because he doesn’t believe in the rule of law. He thinks that he’s above it, as long as his motivations for re-election are pure and he’s in the national interest. And our Founders, the whole idea — you go back to The Federalist Papers, Federalist 51 — men aren’t angels. That’s why government is necessary. That’s why the double security of checks and balances is necessary, Madison says. All of that is being destroyed in this moment by the president’s arguments.

NERMEEN SHAIKH: Well, Neal Katyal, could you also talk about how Trump’s legal team, more generally, has been dealing specifically with Bolton’s book revelations, which are quite explosive? First they ignored them, then said they’re inadmissible, then Dershowitz saying it doesn’t matter if they’re true or not because it would not, quote, “rise to the level of an abuse of power or an impeachable offense.”

NEAL KATYAL: Yeah. So let me first back up, so all your listeners and watchers know what’s going on. So, Article 1 of the presidential impeachment articles says that the president abused power. It essentially says that he tried to cheat in the 2020 election by trying to coerce a foreign government to announce an investigation into his chief political rival, Joe Biden. Now, the president has said, “Oh, no, I was just fighting corruption, and that’s what I was trying to do, and that’s why I withheld the aid,” which has always been a kind of ludicrous argument on its facts, because he can’t name a single other place in the world where he actually cared about corruption. And in response, for example, yesterday to Senator Collins’s question, his lawyers couldn’t come up with any explanation of how Trump only magically cared about corruption after Biden entered the presidential race and not before. So it’s always been weak.

But what Bolton did is destroy it, because Bolton, according to The New York Times’ revelations about his book, say that’s not why Trump did it. He wasn’t trying to fight corruption; he was doing it for his political campaign. So that’s why the Bolton testimony is so important. And that’s why Trump is so scared, scared to daylights, that Bolton will testify or, frankly, that anyone in the executive branch will testify, which is why he’s tried to gag every executive branch employee.

So, what Trump’s lawyers are doing — to get to your question — is they’re trying, basically, a game of misdirection. They’re like, “Look over here. Look at what the House did wrong. Look over there. Look at what the Democrats did wrong. And this and that.” But at the end, the central thing is this, and this is what I hope the House managers today focus on, that Trump has produced no evidence at all, zero evidence, to exonerate him. The House managers, by contrast, have produced over a dozen witnesses that all point the finger directly at Trump. The transcript itself points a finger directly at Trump. He has no evidence to the contrary, because he’s afraid to put any evidence in the record, any witness, any document. And in a world in which you’ve got evidence on one side and nothing on the other, except a lawyer’s argument and conjecture, like his lawyers — Trump’s lawyers yesterday, I don’t think this is, frankly, very close. And it would be a grave, grave disservice to try and acquit the president on the basis of this record. It would be obviously in contravention of their oath to do impartial justice.

AMY GOODMAN: On Wednesday, Chief Justice John Roberts read a question submitted by Democratic Senator Joe Manchin of West Virginia. This is Chief Justice Roberts, followed by, well, Trump attorney Alan Dershowitz.

CHIEF JUSTICE JOHN ROBERTS: “The House has repeatedly impeached, and the Senate has convicted, officers for high crimes and misdemeanors that were not indictable crimes. Even Mr. Dershowitz said in 1998 that an impeachable offense, quote, 'certainly doesn't have to be a crime,’ end-quote. What has happened in the past 22 years to change the original intent of the Framers and the historic meaning of the term 'high crimes and misdemeanors'?”

ALAN DERSHOWITZ: What happened since 1998 is that I studied more, did more research, read more documents and, like any academic, altered my views. That’s what happens. That’s what professors ought to do.

AMY GOODMAN: So, that was Alan Dershowitz responding to Senator Manchin’s question, read through the Supreme Court Justice John Roberts. Neal Katyal, if you can talk about the substance of the question and answer? And then let’s talk a little about Chief Justice Roberts and how much he can bring his justice experience, how much he can weigh in. It’s so unusual, what is taking place right now, chief justice of the United States presiding over the Senate impeachment trial of President Trump.

NEAL KATYAL: Thank you. I’m not going to impugn Professor Dershowitz’s motives or anything like that. I don’t know. Only he knows what’s in his head. But I’d like to hear about what sources he actually studied, because, as I was saying a moment ago, no responsible constitutional scholar — not just now, but for the last two centuries — says anything like what he said yesterday. I mean, the only scholar that I suppose he could find is a guy named Richard Nixon, who said it back in 1977 to David Frost. But, really, no serious scholar says so, and for good reason. You know, there’s lots of stuff that’s impeachable but that isn’t a crime. You know, just take the example: Suppose the president is really upset at Justin Trudeau for dissing him at a global conference, and so the president decides to nuke Canada. That is not a crime. There’s no criminal law that prevents it. But it’s obviously impeachable. Or to take an example that might be a little bit closer to reality, suppose Putin decides to invade Boston and New York tomorrow, and the president doesn’t put up a defense. That is, again, not a crime, but it’s obviously impeachable behavior. And so, you know, crimes have never been the standard, which is as I think Senator Manchin said in his question. They’ve never been the standard, both before 1998 nor after.

Now, your second part of your question had to do with the role of the chief justice. And, you know, I’m fortunate I’ve argued 41 cases before our chief justice. You know, he’s far more conservative than I am, but he’s always fair. I disagree with some of the rulings, but they’re based on a sense of law and a sense of justice. And I think Americans should be glad that he’s presiding over this trial. And yesterday night, Representative Schiff did something which I’ve been expecting for a while, which is to say, “Look, we think this whole witness question should be decided by the chief justice.” As I wrote about it in The New York Times, I think there’s a easy case, that the chief justice can decide whether or not witnesses can be subpoenaed. There’s a harder question about whether it requires 51 senators to overrule him or two-thirds of the Senate to overrule him. And I acknowledge there’s a bunch of debate about that. But I don’t think there’s any serious debate that the chief justice, in the first instance, can authorize the subpoenas of these witnesses. And John Roberts is a real judge, who’s presided over so many cases. He knows that you can’t have a trial without witnesses. There’s no such thing. And so, I think that Representative Schiff did the right thing yesterday in saying he’s going to try and leave this in the chief justice’s hands. And I hope the Republicans do the same thing. I mean, I think all Americans should have faith in this chief justice.

NERMEEN SHAIKH: Well, on Wednesday, the first question came from Republican Senators Susan Collins of Maine, Lisa Murkowski of Alaska and Mitt Romney of Utah. They’re the Republicans considered most open to voting in favor of allowing witnesses. They asked Trump’s legal defense team to explain if Trump was culpable if he had mixed motives. This is Trump attorney Patrick Philbin responding.

PATRICK PHILBIN: If there’s both some personal motive but also a legitimate public interest motive, it can’t possibly be an offense, because it would be absurd to have the Senate trying to consider, “Well, was it 48% legitimate interest and 52% personal interest? Or was it the other way? Was it 53% and 47?” You can’t divide it that way.

NERMEEN SHAIKH: So, Neal Katyal, could you respond to that?

NEAL KATYAL: Yeah. I think the most central thing is that the president, if he thinks it’s 52% or 48% or even 90% or whatever in the public interest, he’s got to come out and testify and say so. Right now there’s witness after witness who’s testified, under oath, in the Congress, that the president did this because he was trying to get political points and to get an investigation announced, not even the substance in a real investigation, but just one announced, against Joe Biden by the Ukrainian government. So if the president really believes he had mixed motives, he’s got to have the guts to go and tell that to the American people, and in particular to the Senate of the United States. Until that, it’s just a bunch of lawyer talk and is wholly unpersuasive.

AMY GOODMAN: Can you talk about the Republicans saying reciprocal witnesses? If the Democrats get Bolton, the Republicans get Joe Biden, Hunter Biden. They get someone for each one that the Democrats get. Talk about the significance of this. What is a material witness? And ultimately, who decides?

NEAL KATYAL: Well, it’s very frustrating, because, you know, I think the Democrats and the House managers have really approached this from the standpoint of trying to get a search for the truth, treating the Senate as, effectively, a court of law and trying to get witnesses who are relevant and material, meaning that they have information that’s pertinent to the allegations against them. And the senators, the Republican senators, by contrast, keep on threatening, “Oh, we’re going to call Joe Biden. It will be bad for your political stuff.” And I just think that they’re talking two different languages. The House is really talking the language of the rule of law, and the Senate Republicans are really talking the language of politics, which is, I think, an enormously destructive force.

Look, if they want to make a case that Hunter Biden or Joe Biden is truly relevant to this, great. But as you were just saying a moment ago, I thought the president’s defense was that he had mixed motives in his own head. And there’s only really one true witness who can explain that defense and what’s in his head, and that’s Donald Trump. And until he goes and says so on the stand, all of this has to be taken with more than a grain of salt. There’s really nothing to it, and particularly when you have witness after witness saying, “Uh-uh, you told me your motivation was something else.” And, you know, that is exactly what Ambassador Bolton, according to The New York Times, said in his book. And the idea that we could come to any sort of resolution on this central set of allegations without hearing from him is like it’s a mockery of American justice. It’s much more like the Soviet system. And I don’t think it’s going to work. I think if the Senate really voted tomorrow to not have any witnesses and to rush to acquittal of Trump, I think all that’s going to do is force a rolling impeachment of this president. The House is then going to go back and call all these witnesses, and they’ll all come forward, and the Bolton book will come out, and these Republicans who voted for no witnesses will have the blood of the Constitution on their hands.

NERMEEN SHAIKH: Well, Neal, one of the arguments, as you know, that Trump’s lawyers have been making is that by calling witnesses, that will automatically lead to endless litigation. Could you respond to that? You recently wrote a piece saying that Trump’s lawyers are in fact wrong in making that argument.

NEAL KATYAL: Yeah, this is a really easy one. I wrote in The Washington Post yesterday, with Josh Geltzer, the reason. And so, in the House, it’s true that if they tried to call Bolton or other folks, the president had said he was going to try and fight this in the courts through executive privilege. But in the Senate, it’s a whole different thing, because the chief justice presides over the Senate impeachment trial, and he’s right there and can decide any executive privilege question. And indeed, the United States Supreme Court, in a case about 20 years ago, said that the federal courts have no business in impeachment trials reviewing what’s going on. They called it nonjusticiable. So, you can’t make a federal court case out of impeachment. And so the chief justice is going to be the last word. And that’s exactly what Representative Schiff said late last night on the floor of the Senate. And so, we’re talking about days, not months or years, but days, to have an executive privilege claim invoked and resolved.

Now, it’s not even clear to me the president would invoke executive privilege. He never has. When you invoke executive privilege, you’ve got to actually show the documents or the testimony that you want to be privileged. And here, I think the president is quite afraid to show those documents, because they show that he’s guilty. And, you know, there’s any number of other problems with the executive privilege claim, the fact that he’s waived it by talking about all this stuff ahead of time and the like. So, I think it’s a bogus claim, and it’ll be easily resolved, and no senators should be worried that this is going to delay things in any serious fashion.

AMY GOODMAN: Neal Katyal, we’re asking you a lot about what happened yesterday, which was the beginning of the senators asking actions through the chief justice, who’s presiding over the trial, John Roberts. But, overall, the Senate impeachment trial that has been taking place — I mean, you wrote a book on impeachment, that just came out — what has surprised you most? What information did you not realize? Has anything changed your mind? And do you think it’s possible, if Hunter Biden, for example, were forced to take the stand, that new information would come out?

NEAL KATYAL: So, I wrote the book, which is called Impeach, as a kind of citizen’s guide to impeachment. It’s 150 pages long, and it goes through the history of impeachment, starting with the Philadelphia Convention, and brings us up to the present day and the allegations against President Trump.

And to answer your question, I don’t think anything that’s come out has changed anything that I wrote in the book since it came out about a month and a half ago. If anything, it’s just the case against Trump has become stronger, because each week there’s new revelations, whether it’s the Bolton book this week or the Lev Parnas testimony last week or the Office of Management — excuse me, the GAO, General Accounting Office, saying what the president did with Ukraine is illegal, the week before. So, you just have more and more evidence. And the trajectory of this all points in the president’s guilt. There’s no new evidence that’s come out ever, since the whistleblower report in September, that says the president is innocent. It all points in that same direction.

And you asked me what I was surprised about since I wrote the book. I guess I’d say one thing. You know, the beginning of the book talks about what I call the yardstick rule, which, to me, is the essence of what the rule of law is about, which is, it doesn’t matter who the parties are before you. The whole idea of law is that justice is blind. That’s why Lady Justice in the statues is blindfolded. You get the same justice whether you’re a man or woman, or a Republican or a Democrat. And so, in the book, I say, as a thought experiment, just pretend that these allegations about Ukraine were against President Obama instead of against President Trump. How would you vote? And I said each senator should look in the mirror in the morning and ask themselves that very simple question. And it’s just as much true for Democrats as Republicans. And, you know, for me, at least, I believe the answer is very clear. I don’t care — I loved President Obama. But if he did this, I’d be the first one to march down there and say, “You’re out of there.” And it’s surprising to me that the Republicans have marched in lockstep, so much so they’re afraid to even have witnesses. It’s kind of become a party of the three monkeys and seeing no evil and hearing no evil and just willfully closing their eyes and ears to anything to the contrary. And that is a really, really sad thing for me as an American. I believe in a party system. I believe in vibrant debate. And what I’m saying right now is the collapse of the Republican Party. They stand for nothing, if they can’t stand for the most simple, basic precepts of the rule of law, which is, you know, “Heck, we don’t want a president who cheats in his re-election.”

NERMEEN SHAIKH: Well, Neal Katyal, who would you like to see — as the Senate impeachment trial continues, who would you like to see testify, and what kinds of documents do you think should be brought in as evidence?

NEAL KATYAL: So, I think that there’s basically two groups of people who I’d like to testify. I’ll end that, and then I’m going to have to go. So, the first is, I think the most important person, as we were talking about a moment ago, is President Trump himself. His whole defense is “I had pure motives. I did nothing wrong. I wanted to fight corruption in Ukraine.” If he really thinks so, go tell it under oath to the American people, and let’s see what they think of that explanation. So, I think he’s the most important witness, given the defense, given all the allegations against him, including now by his own national security adviser, John Bolton.

And then, second, the witnesses with firsthand information, that the president has blocked so far from testifying. So that’s John Bolton, the former national security adviser; Mick Mulvaney, who’s the acting chief of staff; John Duffey, who’s the Office of Management and Budget official; and Secretary of State Mike Pompeo. So I think it’s that group of five witnesses and the documents that they had in relation to the Ukraine situation that we’d like to see.

AMY GOODMAN: Neal Katyal, we want to thank you so much for spending this time with us, former acting U.S. solicitor general in the Obama administration, Georgetown University law professor. Neal Katyal is the co-author of Impeach: The Case Against Donald Trump.

When we come back, Coded Bias, a new film, has premiered here at the Sundance Film Festival, taking on racial and gender bias in artificial intelligence. Stay with us.

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