The Defense Arguments in Impeachment Trial

of Law. Last night, Alan Dershowitz cited you you left. Tell us what he said and whether he was correct in the way he interpreted what you have written. Well, first off, I wasn't actually listening to it live. I was giving a lecture at the University of Oregon Law School. In the middle of my lecture, my phone started exploding and I got all these emails and text people were sending that Dershwood's name tropped me. So after my talk, I had to go back and you know, watched the video.

Last week, I had published an op ed in the New York Times, and the op ed explained that what President Trump was doing was politics. It was not an abusive power. And I offered one example to put Trump's actions into context. During the Civil War, there was an election being held in Indiana and the Republican government Indiana was in jeopardy being thrown out and present Lincoln worry that if Indiana fell at of Republican power, they would

no longer support the war effort. As a result, Lincoln wrote a letter to General Sherman, and Lincoln told Sherman, can you please let the Indiana soldiers go home and vote for the Republican party that has take them off the front line and let them go vote. Lincoln recognized that this action would put the troops in in peril, but he was the commander in chief and he could give this order. And he was also the lead of the Republican Party, and he didn't want his party out

of power because out have injured the nation. UM. I didn't offer this example to compare link in to Trump. I think that's a gross that's a gross analogy at many levels. My point is that presents routinely used their official power as a means to advance directly and directly political futures. And what happens with Lincoln and Trump while people agree with disagree in the value, but these are not unconsulutional abuses of power. Okay, well, I wrote the

opped it got a lot of feedback, allow blowback. And then last night or on eight thirty PM in prime time, Alan Dershwitz said, and let me read an article from Professor Blackman, and he spent about a minute and a half reading my article and saying he agreed with me. What can I say? I agree with dersh I think he made the right argument, but it was very surprising to hear. And uh, I'm flattered, honored, and shocked all

at once. You agree with Dershowitz saying the Founders meant impeachment to be used for explicitly criminal acts such as treason or bribery. No, I don't. I don't agree with Derschwitz, and entirely. Dershowitz argued that the only offenses that can be impeachable are actual criminal offenses. I don't think he's right about that. But where Derschwitz and I agree is on what is not impeachable. And I think merely using official acts to help yourself politically is not an abuse

of power. It might be bad politics, would be something the voters can consider, but I don't think it wants removal from office. Do you think the Democrats have presented a case for impeachment, Well, there are two articles. One is based on the abuse of power. The second is based on what's called obstruction of Congress. I don't I don't have a strong opinion the second one. We'll focus

on the first one. Um, the first one, even if we assume the facts are true that President Trump withheld the money UH in order to get the Ukrainians investigated Biden, his political opponent, even if the facts are as pleaded, Um, I don't think that would be in the power. I think it was terrible judgment and I think it was a huge mistake. And I've said so many times, but I don't think the benefit Trump received the political uh impact of investigation that doesn't trigger the the the impeachment

requirement for our constitution. So you are in the minority of constitutional stars, which minority, which is probably why Durst had to quote me. There was anyone else to quote. But hey, look, I know I know my I know my audience. Right. No, I think I think I'm in the minority positions. But I will tell you that I've been getting a quite large number of attorneys who agree with me, but who perhaps keep your mouth shut because it's not a very popular thing to do. Defending President

Trump is never popular thing in most quarters. Um, I don't even defend President Trump. I think his actions were uh, quite inappropriate. He shouldn't have done it. But that's a decision for the ballot box, not one for the impeachment trial. Now, one of the questions, which has always been the question, is witnesses, and we have the manuscript of former National

Security advisor John Bolton's upcoming book. Today, Trump attorney Jay Sekulo urged the Senate to ignore the leaks about Bolton's book, saying, quote, you cannot impeach a president on an unsourced allegation. Well, doesn't that lead then to the answer, why not call him as a witness then? Right? The timing of this Bolton bolt of lightning in my card is very convenient. The manuscript was released right at the start of the President's case, a couple of days before votes will be

held on whether witnesses should be called. You know, June, I can't tell you if we'll have witnesses called or not. What I probably will tell you is nothing will change. I think Bolton will more or less tell you what the House managers have been accusing the President of I'm

not sure that changes any votes for my position. I've assued him the House managers are right on the facts, and I've assumed the President maybe order to withhold the money in exchange for the investigation the Biden's I just assumed those are the facts. Even what Bolton saying it's true wouldn't really affect how the situation. So now the next phase is sixteen total hours of senators questions from both sides. What kind of questions do you expect to

hear or what the questions would be beneficial? Well, you know, I think I think we'll have I don't think the questions we are useful. I think that this case isn't litigated to death. I don't know that there are any there's anything left to discuss unless they're new witnesses that can give new information. Um In terms of what the senators will ask, I think the Republicans last questions about

Hunter Biden, the last question about Joe Biden. They'll ask Adam Schiff about why he talked to the whistleblower, whether he talked to the whistleblower. UM. I think there'll be you Republicans trying to make political points. Um, what are the Democratic senators going to ask? They'll probably ask stuff Joe Biden. I'm sorry about John Bolton, They'll ask about mc mulvaney. I don't think the questions were particularly useful, but you know that that's they're prerogative to ask these questions.

Do you think there should be witnesses? I'm mixed, and let me let me speak out loud for a minute. UM. I think that the House would have been a good place of witnesses. UM. I think the House would have been the appropriate form to develop a record which they can be considered in the Senate. But of course the witnesses refused to pacify for the House that they couldn't do it. They did not issue subpoenas and tried to enforce them in court. They could have, but they chose

not to. UM. But there's nothing preventing witnesses from being called in the Senate. I don't know that the information will help resolve anything, So I'm I'm kind of mixed

on the on the question of um. Uh witnesses. I go back and forth, so former Obama administration, Supreme Court advocate Neil Katia, Georgetown University law professor Joshua Geltzer, and Mickey Edwards, a former Republican senator from Oklahoma, wrote an op ed in The New York Times saying that the Chief Justice can do more than just have a ceremonial role. That he can issue subpoenas on his own authority, and he could break the fifty fifty tie among senators. First

of all, can he do that? Probably? Um, we do have one president. We've only had two presidential impeachments which the Chief Justice presides. But in eighteen eight uh Andrew Johnson, the president was impeached and we had a peachment trial. Does presides over by Sam and Chase, the Chief Justice at the time. On a couple occasions, I think two occasions, chief Justice broke ties, and the Senate seemed to accept that because generally the presiding officer can break any ties

in the body. I don't know that Roberts would. If there's a fifties tie, he could, or he could simply say I declined to vote, in which case the motion is defeated. So I I let me take a step back and respond to the op ed you mentioned. I think it's almost a fantasy to people think John Roberts will save this trial. UM. He does not want to do anything. He wants to just move things along. Roberts's boss was named Chief Justice Rank List as we clerk

for back in the day. Rank was presided at the Clinton impeachment trial, and Rank was said of his job, I did nothing at all. I did it particularly well. I think Roberts us is off the same fashion. Just move things along and don't get involved in controversial decisions. I think that's that's where Roberts will come down in this what's your general take on what you've seen so far of the impeachment. I think the House I think

the house managers have done a very good job. I don't say that lightly because I don't agree with their charge. I think Adam Schiff has been, for the most part, an excellent attorney. I think he's really made a compelling case why people should vote against Donald Trump. I don't think he's made the case of why should removed them office, but this is a great statement of why you should vote for another candidate. UM. I think there, the presidents

lawyers have had a different function. Um. Their role has not been too necessarily make legal arguments. Their role has been to tarnish and taint this proceeding as is sort of political hoaxes, witch hunt. I think they've done that effectively as well. On both sides are playing to their basis.

I mean, even if they're the timing June, the president had all day Saturday to make arguments, as Laurier made two hours of arguments why ratings are dead on Saturday and said they waited for Monday, And in fact Derschwitz came up prime time a PM due to make his argument. That's when he announced my uh uh um that that that's when he announced my art. Also, I mean there are probably tens of millions of people watching him talking

about myself, which is sort of surreal. But I think they've been uh leading this process in a political fashion, and that's probably the best way to accomplish it. I think that's what they're best thing, that's what they're trying to do, and they accomplished it. Let me ask you something about Dershowitz. In particular, he taught criminal law and he was a famous criminal defense attorney. Now he's presenting himself as a constitutional law scholar. I mean, the weight

of authority is against him. Well as for Dershwitz being a criminal professor teaches criminal procedure, which is very constitutionalist oriented. UM. But I think I think more importantly, scholars are allowed to change their minds. UM. They can revisit questions, and I think people can reasonly disagree. Most people think I'm wrong,

most people think I'm dead wrong. I've gotten awful emails and awful tweets from lots of law professors, and I respect their opinions, but I hold a different one UM in terms of the specifics. Dershowitz In the nineteen and he's made a statement that wasn't really relevant. Clinton was charged with perjury and an obstruction of justice those who established crimes at the time, it was irrelevant whether or not you need to charge a crime because it was

a crime. Only now with Trump, for the first time, we have a situation where the presidents being charged with this sort of nebulous abuse of power claim, and that led to shorts to investigate. UM. He's a bit of a heterodox. He takes different positions and different elements. I think at bottom he's a civil libertarian, so I I don't begrudge him, I don't fault him. I think he made a decision. I don't agree with him on this specific but I don't think he's unqualified and he made

his case well. I think he represents the president of the plumb Thanks Josh. That's Josh Blackman, professor with the South Texas College of Law.