Alan Dershowitz: It’s “unconstitutional” to impeach Trump

Dershowitz: “Obstruction of justice — that’s not a crime.”

Video file

Citation From the November 11, 2019, edition of Fox Business’ Varney & Co.

STUART VARNEY (HOST): Now, we have the perfect guest on impeachment. He is the author of the new book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo. The author is Alan Dershowitz, Harvard Law professor, with me in New York today. What's the significance, if you can wrap it up for us, of this second transcript that President Trump will reveal tomorrow?

ALAN DERSHOWITZ (AUTHOR): Well, first of all, I want to thank every veteran who served and protected us. Today is a day that we ought to take very, very seriously. Second, I don't know what's in the second transcript. But there are two issues: What happened on those phone calls, and is there any possibility that there is an impeachable offense? Let's get to the second one first — the answer is no. There is no possibility. Take the worst, worst, worst-case scenario — the president abused his foreign policy power to gain political advantage. How many presidents have done that over time? It's not among the listed impeachable offenses. It's not a crime — 

VARNEY: It's not a high crime or misdemeanor.

DERSHOWITZ: It's not any kind of a crime. It may be a political sin — that's a good reason for deciding who to vote for — but it's not a good reason for removing a duly-elected president. The Framers had a debate about this, and they rejected the concept of "maladministration" as a ground for impeachment. You need to show bribery, treason, or high crimes and misdemeanors. And even in the worst-case scenario by the phone call, it's not there.

VARNEY: Is it dead on arrival in the Senate? I'm assuming that there will be an impeachment vote, and the House will say, yes, impeach him. Then it goes to the Senate. Dead on arrival?

DERSHOWITZ: Look, I'm a liberal Democrat. I think the worst thing the Democrats can do is have a vote for impeachment. Then the president wins in the Senate. He then uses that to help him win the election, and the Democrats no longer have anything to hold over him for the second term — because nobody's going to go forward with a second impeachment. So it's the most foolish thing, from a Democratic point of view, to impeach the president. But the Democrats have shown that they're prepared to engage in foolishness, for minimum political advantage, so he may be impeached.

VARNEY: But once again, there is no legal basis for this impeachment?

DERSHOWITZ: It would be unconstitutional to impeach the president on these grounds. And the message has to be, Congress is not above the law. They keep saying the president's not above the law. That's right. Congress is not above the law. They can't make it up as they go along. They can't make up crimes. We've had people saying, “Oh, disclosing the name of the whistleblower would be a crime" — no, it's not. Obstruction of justice — that's not a crime. Collusion — that's not a crime. The phone call — that's not a crime. You can't just make it up. To have a crime, you have to find something in the statute book that existed before the actions took place, and that was clear and unequivocal. It's just not there.