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This video compiles separate answers Alan Dershowitz presented in replying to senators during the first question-and-answer day of the Senate impeachment trial.

Alan Dershowitz, the Harvard emeritus professor assisting President Trump’s impeachment defense, warned that much of the country would refuse to accept a conviction in the trial. He said he grew up in the era of McCarthyism, and the country is more divided today than it was then, and Trump is a flashpoint for that. “Families are broken up. friends don’t speak to each other,” he said. He urged senators not to make things worse by convicting Trump, which he said “would not be accepted by many Americans.”

Dershowitz said during Senate trial proceedings on Jan 29, 2020 that the evidence demonstrates that Trump had a “mixed motive” in asking Ukraine to investigate the Bidens, including the motive to gain a political advantage as well as advance national interests. “Every public official that I know believes that his election is in the public interest, and mostly, you’re right,” he said. “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 cannot be the kind of quid pro quo that results in impeachment.”

“It would be a much harder case if a hypothetical president of the United States said to a hypothetical leader of a foreign country, ‘unless you build a hotel with my name on it, and unless you give me a million dollar kickback, I will withhold the funds.’ That’s an easy case. That’s purely corrupt and in the purely private interest.”

“But a complex middle case is, ‘I want to be elected. I think I’m a great president. I think I’m the greatest president there ever was. If I’m not elected the national interest will suffer greatly.’ That cannot be impeachable.”

This compressed version is shorter because it removed silences and pauses.
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Full transcript

Alan Dershowitz:
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 cannot be the kind of quid pro quo that results in impeachment. I quoted President Lincoln. When President Lincoln told general Sherman to let the troops go to Indiana so that they can vote for the Republican party, let’s assume the president was running at that point and it was in his electoral interest to have these soldiers, put at risk the lives of many, many other soldiers who would be left without their company. Would that be an unlawful quid pro quo? No, because the president, A, believed it was in the national interest, but B, he believed that his own election was essential to victory in the Civil War. Every president believes that. That’s why it’s so dangerous to try to psychoanalyze a president, to try to get into the intricacies of the human mind. Everybody has mixed motives, and for there to be a constitutional impeachment based on mixed motives, would permit almost any president to be impeached.

Chief Justice:
The question for counsel to the President, directed to Professor Dershowitz by Senator Wicker is this, Professor Dershowitz, you stated during your presentation that the house grounds for impeachment amount to the “most dangerous precedent”, what specific danger does this impeachment pose to our republic to its citizens?

Alan Dershowitz:
Thank you senators. I came of age during the period of McCarthyism. I then became a young professor during the division of time of the Vietnam War. I, as all of you lived through the division during the Iraq war and 9/11 and following 9/11. I have never lived at a more divisive time in the United States of America than today. Families are broken up. Friends don’t speak to each other. Dialogue has disappeared on university campuses. We live in extraordinarily dangerous times. I’m not suggesting that the impeachment decision by the house has brought that on us. Perhaps it’s merely a symptom of a terrific problem that we have facing us and likely to face us in the future. I think it is the responsibility of this mature Senate, whose job it is to look forward, whose job it is to assure our future, to make sure the divisions don’t grow even greater.

We’re a President of the United States to be removed today, it would pose existential dangers to our ability to live together as a people. The decision would not be accepted by many Americans. Nixon’s decision was accepted, easily accepted. I think that decisions that would have been made in other cases would be accepted. This one would not be easily accepted because it’s such a divided country, such a divided time. And if the precedent is established that a President can be removed on the basis of such vague and recurring and open ended and targeted terms as abusive power. 40 Presidents have been accused of abusive power. I bet you all of them have. We just don’t know some of the charges against some of them, but we have documentation on so many. If that criteria were to be used, this will just be the beginning of a recurring weaponization of impeachment, whenever one house is controlled by one party and the presidency is controlled by another party.

Alan Dershowitz:
Now the house manager say there are dangers of not impeaching, but those dangers can be eliminated in eight months. If you really feel there’s a strong case, then campaign against the president. But the danger of impeachment will last my lifetime, your lifetime, and the lifetime of our children. So I urge you respectfully, you are the guardians of our future. Follow the constraints of the constitution. Do not allow impeachment to become a normalized weapon in the word of one of the framers. Make sure that it’s reserved only for the most extraordinary of cases like that of Richard Nixon. This case does not meet those criteria. Thank you.

Chief Justice: Thank you, counsel.

Chief Justice:
The question from Senator Manchin reads as follows, “The framers took the words high crimes and misdemeanors straight out of English law where it had been applied to impeachments for 400 years before our constitution was written. The framers were well aware when they chose those words that parliament had impeached officials for high crimes and misdemeanors that were not indictable as crimes. The House has repeatedly impeached and the Senate has convicted officers for high crimes and misdemeanors that were not indictable crimes. Even Mr. Howitzer said in 1998 that an impeachable offense, “Certainly doesn’t have to be a crime.” 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? It’s counsel for the president’s turn.

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. I keep reading more and I keep writing more and I keep refining my views. In 1998 the issue before this Senate was not whether a crime was required. It was whether the crime that Clinton was charged with was a high crime. When this impeachment began,. The issue was whether a crime is required. Actually two years earlier in a book and then an op-ed, I concluded, not on partisan grounds, on completely academic grounds that you could not impeach for abuse of power and that a technical crime was not required but criminal like behavior was required. I stand by that view.

The framers rejected maladministration. That was a prime criteria for impeachment under British law. Remember too the British never impeached prime ministers. They only impeached middle level and low level people. So the framers didn’t want to adopt the British approach. They rejected it by rejecting mal administration. What’s a metaphor or what’s a synonym for maladministration? Abuse of power. When they rejected maladministration, they rejected abuse of power.

Alan Dershowitz:
Mr. Congressman Schiff asked a rhetorical question. Can a president engage in abusive power with impunity? In my tradition, we answer questions with questions. So I would throw the question back. Can a president engage in maladministration with impunity? That’s a question you might’ve asked James Madison had you been at the constitutional convention. He would say, “No, a president can’t engage in that with impunity, but it’s not an impeachable crime.” Maladministration is not impeachable, and abuse of power is not impeachable. The issue is not whether a crime is required. The issue is whether abuse of power is a permissible constitutional criteria. The answer from the history is clearly, unequivocally no. If that had ever been put to the framers, they would have rejected it with the same certainty they rejected maladministration.

Chief Justice: Thank you.

Chief Justice:
Question is directed to counsel for the president. How does the non-criminal abusive power standard advanced by the house managers differ from maladministration and impeachment standard rejected by the framers? Where is the line between such an abusive power and a policy disagreement?

Alan Dershowitz:
Thank you very much for that question because that question I think hits the key to the issue that’s before you. Today when the framers rejected maladministration and recall that it was introduced by Mason and rejected by Madison on the ground that it would turn our new Republic into a parliamentary democracy where a prime minister, in this case a president, can be removed at the pleasure of the legislature. Remember too that in Britain, impeachment was not used against the prime minister. All you needed was a vote of no confidence. It was used against lower level people.

And so maladministration was introduced by Mason. And Madison said, “No, it would turn us.” It was just too vague and too general. Now what is maladministration? If you look it up in the dictionary and you look up synonyms, the synonyms include abuse, corruption, misrule, dishonesty, misuse of office and misbehavior. Even professor Nicholas Buoy, a Harvard professor who was in favor of impeachment, so this is an admission against interest by him. He’s in favor of impeachment. He says, “Abusive power is the same as misconduct in office.” And he says that his research leads him to conclude that a crime is required.

By the way, the Congressman was just completely wrong when he said I’m the only scholar who supports this position in the 19th century, which is much closer in time to when the framers wrote Dean Dwight of the Columbia law school wrote that the weight of authority, by which he meant the weight of scholarly authority and the weight of judicial authority, this is 1867, the weight of authority is in favor of requiring a crime. Justice Curtis came to the same conclusion. Others have come to a similar conclusion. You asked what happened between 1998 and the current to change my mind, what happened between the 19th century and the 20th century to change the minds of so many scholars?

Let me tell you what happened. What happened is that the current president was impeached. If in fact, president Obama or president Hillary Clinton had been impeached, the weight of current scholarship would be clearly in favor of my position because these scholars do not pass the shoe on the other foot test. These scholars are influenced by their own bias, by their own politics, and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history.

Professor Tribe suddenly had a revelation himself. At the time when Clinton was impeached he said, “Oh, the law is clear. You cannot charge a president with a crime while he’s the sitting president.” Now we have a current president. Professor Tribe got woke, and with no apparent new research he came to the conclusion, oh, but this president can be charged while sitting in office. That’s not the kind of scholarship that should influence your decision. You can make your own decisions. Go back and read the debates and you will see that I am right, that the framers rejected vague, open-ended criteria, abusive power.

And what we had is the manager made a fundamental mistake again. She gave reasons why we have impeachment. Yes, we feared abuse of power. Yes, we feared criteria like maladministration. That was part of the reason. We feared incapacity. But none of those made it into the criteria because the framers had to strike a balance. Here are the reasons we need impeachment. Yes. Now, here are the reasons we fear giving Congress too much power, so we strike a balance. How did they strike it? Treason, a serious crime. Bribery, a serious crime. Or other high crimes and misdemeanors, crimes and misdemeanors akin to treason and bribery. That’s what the framers intended. They didn’t intend to give Congress a license to decide who to impeach and who not to impeach on partisan grounds.

I read you the list of 40 American presidents who had been accused of abuse of power. Should every one of them be impeached? Should every one of them have been removed from office? It’s too vague a term. Reject my argument about crime, reject it if you choose to. Do not reject my argument that abuse of power would destroy the impeachment criteria of the constitution and turn it in the words of one of the senators of the Johnson trial to make every president, every member of the Senate, every member of Congress be able to define itself from within their own bosom.

Alan Dershowitz:
We heard from the other side that every Senator should decide whether you need proof beyond a reasonable doubt or proof by a preponderance. Now we hear that every Senator should abuse of power.

Chief Justice: Thank you, counsel.

Alan Dershowitz: Thank you, Chief Justice.

Chief Justice:
The question is addressed to counsel for the President. As a matter of law, does it matter if there was a quid pro quo? Is it true that quid pro quos are often used in foreign policy?

Alan Dershowitz:
Chief justice, thank you very much for your question. Yesterday I had the privilege of attending the rolling out of a peace plan by the President of the United States, regarding the Israel Palestine conflict. And I offered you a hypothetical the other day, what if a democratic President were to be elected and Congress were to authorize much money, to either Israel or the Palestinians? And the democratic President were to say to Israel, “No, I’m going to withhold this money unless you stop all settlement growth.” Or to the Palestinians, “I will withhold the money Congress authorized to you unless you stopped paying terrorists.”

And the President said, “Quid pro quo. If you don’t do it, you don’t get the money. If you do it, you get the money.” There’s no one in this chamber that would regard that as in any way unlawful. The only thing that would make a quid pro quo unlawful is if the quo were in some way illegal. Now we talked about motive. There are three possible motives that a political figure can have. One, a motive in the public interest and the Israel argument would be in the public interest. The second is in his own political interest and the third which hasn’t been mentioned, would be in his own financial interest. His own pure financial interests, just putting money in the back.

I want to focus on the second one for just one moment. 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 cannot be the kind of quid pro quo that results in impeachment. I quoted President Lincoln. When President Lincoln told general Sherman to let the troops go to Indiana so that they can vote for the Republican party.

Let’s assume the President was running at that point and it was in his electoral interest to have these soldiers put at risk the lives of many, many other soldiers, who would be left without their company. Would that be an unlawful quid pro quo? No, because the President A, believed it was in the national interest, but B, he believed that his own election was essential to victory in the civil war. Every President believes that, that’s why it’s so dangerous to try to psychoanalyze a President, to try to get into the intricacies of the human mind. Everybody has mixed motives. And for there to be a constitutional impeachment based on mixed motives would permit almost any President to be impeached.

How many Presidents have made foreign policy decisions after checking with their political advisors and their pollsters? If you’re just acting in the national interest, why do you need pollsters? Why do you need political advisors? Just do what’s best for the country. But if you want a balance what’s in the public interest with what’s in your party’s electoral interests and your own electoral interest, it’s impossible to discern how much weight is given to one to the other. Now, we may argue that it’s not in the national interest for a particular President to get reelected, or for a particular Senator or a member of Congress.

And maybe you were right, it’s not in the national interest for everybody who’s running to be elected. But for it to be impeachable you would have to discern that he or she made a decision solely on the basis of, as the House managers put it, corrupt motives. And it cannot be a corrupt motive if you have a mixed motive that partially involves the national interest, partially involves electoral and does not involve personal pecuniary interests. And the House managers do not allege that this decision, this quid pro quo as they call it and the question is based on the hypothesis, there was a quid pro quo.

They never alleged that it was based on pure financial reasons. It would be a much harder case if a hypothetical President of the United States said to a hypothetical leader of a foreign country, “Unless you build a hotel with my name on it and unless you give me a million dollar kickback, I will withhold the funds.” That’s an easy case. That’s purely corrupt and in the purely private interest. But a complex middle case is, “I want to be elected. I think I’m a great President. I think I’m the greatest President there ever was and if I’m not elected, the national interest will suffer greatly.” That cannot be an impeachable offense. Thank you Chief Justice.
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Alan Dershowitz answered senators' questions in Senate impeachment trial (Jan 29, 2020) https://t.co/dAISXLTjYn

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