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tv   Alan Dershowitz The Case Against Impeaching Trump  CSPAN  July 29, 2018 4:00pm-5:01pm EDT

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of the unfolding friendship and tragedy of their lives together. so try to find ways to sprinkle in more serious literature with things that are just a little more entertaining and allow me to think about other things than all that is at stalk for our country. >> booktv wants to know what your reading. send us your reading list on booktv, twitter, i instagram or facebook. [inaudible conversations] good evening. a long time civil libertarian and author of 37 books, alan dershowitz has been called one of most prominent and consistent defenders of civil liberties in america by politico.
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the his book the case against. peaching trump he seeks to reoren the debate over impeachment to the statement standard his husband upheld for decades, the law of the united states of america as established by the constitution. professor dershowitz is joined in kissing with josh bare -- barrio. without fer their adieu joan my in welcoming alan dershowitz and josh barr. [applause] in >> hi, everybody, thank you for coming. [applause]
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>> hi, everybody, thank you for coming. and alan, thank you for coming from the vineyard for us. >> sure. >> we certainly appreciate it. i know that you had to leave the island under cover of darkness a row boat because you have been banned from at the ferry. >> but i did create a new cover for my book, only for the vineyard. it's a brown paper cover, the kind we used to use as kids when we were reading dirty books. so, the vineyard can actually read the book on the beach without anybody knowing what they're reading. >> always innovating. so, i think at the end we'll get into people being mad at you and whether it's reasonable for people to be mad at you. >> talk bought my children and grandchildren? >> yes. but first i want to talk but the book, and the legal questions within the book because i think that sometimes get lost in these public conversations and it's a
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very interesting book with an interesting argument. i want to start with the title. the case against impeaching trump. feel like this feels a little bit premature me in the same way that the cases for impeaching trump feel premature. >> i agree. >> my preferred tight wool be been the constitutional case regarding inpeople. >> -- impeachment but title are designed to be provocative and my publishers wanted trump in the title, can't want constitutional in the title, and -- where are my publishers -- and probably nobody would have bought it. but this is not a brief for donald trump. in fact if donald trump or two commit an impeachable offense, i'd be the first one calling for his impeachment. the. it's that before anybody can be inpeopled and removed thunder the constitution, you have to have an actual crime, whether it
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be treason or bribery or high crimes and misdemeanor but you can't impeach a empty because you don't like hit policies and he, quote, included doctor cloyd with russian or fired comey for did other things. there's so many things this president did that it thoroughly disapprove of emeye. against his immigration poll circumstance begins separation of family, i'm against his policies regarding borings, i'm against his tax policies and his health policies and even against this opposition to women breast-feeding their children the latest crazy thing this administration did is opposing international policy. so, don't try get know defend donald trump. i'm not going to do that. >> this is not a political defense of donald trump. >> right. >> i wanted -- so, would you agree that there are basically -- i see two really
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key claims in this book. one is that impeachment has to be for a crime. >> right. >> you reject this idea that congress gets to decide to impeach. there has to be a literal crime. >> clearly that's right. >> the sim claim is it witness nothing be discovered that donald trump committed a crime but the prominent things that people discuss, the idea he has october instructed justice by firing james comey or by asking james comey to go easy on michael flynn or raising the possibility he might pardon people, those thing things nor crimes and the things described as russia collusion are not crimes by him, even though other people who hacked dnc e-mail serves committed crimes. the big that that people talk but, those things are not crimes. >> you got it absolutely perfectly. wish you were reviewing the week and wish you lived on martha's vineyard because if you ask my friends what this book is about, they would have a completely,
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completely different point of view. think the first 28 pages lays it out completely and very clearly, and both of those positions are contentious. the vast number of scholars completely disagree with me. in fact 198 i disagreed with myself. i wrote that impeachment was, i thought, because that was the common wisdom at the time -- a broader criteria. when i went to do the research, when clinton was impeached, i adviseed president clinton on his legal case when he was impeached. i did to research and came to the conclude that you require a crime. everybody loved me for that. everybody loved me when i said you need have a crime to impeach president clinton but saying the same exact words bowled president trump gets me in trouble simple had my publisher doing something interested. made an alternative cover to illustrate what i would have
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written had hillary clinton been elected president and had she been subject to impeachment. i would have written the same book, the same first half, at least, about -- but would have been the case against impeaching hillary clinton. >> how many different covers -- >> so far three am few more in the works but three are what we're working on right now. >> i'd like to take -- actually four but we won't talk about that. >> i'd like to take the doesn't take impeachment -- the most challenging and controversial. >> then get to frump and his pick alleged wrongdoings. you thingsed this as contenting shoe question, one person who disagree is his harvard law colleague. >> and everybody else on the faculty. i'm used to that. >> there have been several books, it's -- >> it's tribal -- >> by the way they're both terrific books and i recommend
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them. layer tribe's book is readable and excellent but wrong. and stensteen ice -- is read baseball but it mostly lays out the analysis bus they're all worth reading. >> is in on base whether impeachment requires a crime. want to did about his case. so, to step back, the question here is about this constitutional provision which says the president may be impeached for treason, bribery and other high crimes and misdemeanors and then you might need figure out what treason and bribery is but you have figure out what other high crimes and misdemeanorses mean. you're contention it means crimes. >> yes,. >> he goes back through the history from the 1600s the england when the standard first exist and then the debate
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emergency he founder as they were debating what the clause in the constitution would say, and he says he found quite a lot of examples where a misdemeanors is not a crime. you look in the english cases, he says one example was an official who was emimpede for losing a shipsive you enter a -- and then he -- in the american context he quotes james madison during the debates of ratifying the constitution and some examples of things he said the president might be impeached over. you one-third two-thirds of the senate to ratify a treaty but two-thirds of whoever there is so if the president cull some chicanery where only a few local senators were in town -- made more sense back 1790 -- and used that to approve a treaty that most to the states didn't like, he said if the president were to commit anything so atrocious as to summon only a few states he would be impeached and convicted
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as the major of the states would be affect by his misdemeanors. >> that's what the republicans did to denies irmerritt garland, they pulled celeb unanimous begans and refuse told allow the case going forward and now some democrats are thinking about the possibility of every democrat leaving the halls of senate so there would only be 50 senators president which is not a quorum. you need 51. that's just an impeachable offense. what happened was the british of course had a broad definition of misdemeanors, and the -- there was debate and some members of the drafting committee said we should have impeachment for malfunction of office, a range of other things and it was rejected on the ground that we don't want the british system weapon don't want the parliamentary system. we don't want the president to be able to be removed by the whim of congress. that's the british system. that's every parliamentary system. we are almost the only country in the world that has a president that can't be removed
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if a majority of the legislatures want him removed. so what they did is they introduced introduced the he two tier system. number one, that be an actual crime, high crime or misdemeanor and that high crime or misdemeanor has to be of the kind that madison and hamilton talked about. and so that, i think, i the appropriate way of looking at it. but i don't have to rely on that argue. when you look at a constitutional tex, you never, ever get to the intent of the framers unless, unless the words of the station are ambiguous and they're just not ambiguous, they say, treason, bribery, or other high crimes and misdemeanors and even larry tribe says that you can't look at the framers. almost nobody thought about the impeachment provisions. no debate in any of the state legislatures and you don't look
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at the intent of one or two people. you look at the intend or the understanding that the american people have at the time they ratified the constitution, and tribe says, you really can't get much out of that at all so you have to look at the text he has a very interesting example. he quotes justice scalia saying you have to look when you'll see four or five thingsing to you have to see what they have in common. mickey man tell, sandy co -- sandy cow fantastic and joe dimaggio. sam walton is a great competitor bit the lister is obviously limited to great athletic competitors and what do the terms treason, bribery, and other high crimes and misdemeanors have in common? they're all crimes. so just look at the texas of the
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constitution itself. then there's another principle of constitutional analysis, it's called lenity, leniency, lenity, a roman word but means when you're construing a statute or constitutional provision that has a punitive impact you have to construe it in the narrowist possible with a with all doubts resolved against a broad application. so, let's assume hypothetically that hamilton and madison said what cass said -- they can't. what stayed was that that's an additional element. let's assume they said that. let's assume the filmers had in mind a broader provision. that's not what was ratified. what was ratified were the words of the constitution, and when you look at the words and you'll apply the principle of lenity, you can not conclude that the commission of a crime is not a prerequisite. once you can prove the commission of the crime you have to intros other facts, has to be
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a high crime. number two the political situation has to be such that the impeachment should go forward. the political element comes in after the high crimes and misdemeanors are decided. so if you had a great president, lincoln, and he had done something terrible, and it was an impeachable offense and the middle of the civil war, the senate probable would decide not to remove him even though he was subject to removal on political grounds. >> the congress has the -- is entitled to impeach in certain circumstances. >> what i they're not title into do is what they did when lincoln was shot and replace by andrew johnson. thaws johns like that s.o.b. and they were right. did horrible things to america. he asset back reton instruction -- reconstruction, filed the secretary of war even though congress said you can't fire him without congressional approval. but he didn't commit a crime. >> i want to ask you about the
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lenity thing, this is part of the broader argument that doesn't make sense to me. you analogize this to a criminal proceed and the forgot a defendant and rights of eave defendant. >> i don't analogy yous it. the constitution does. says he has to be convicted -- uses words not ambiguous, down say he has to be found after aing her. it says he has to be tried by the senate, and convicted, based on two-thirds of a vote. what if it was only half? could you remove him for that? no how can you then remover him if he didn't satisfy the substantive criteria of committing a crime. >> you it's it's important what the not ignore words the constitution to proctthe rights of individual even if the individual are government officials. i don't understand what at the rights are being. mix it canada here. the presidency is an office and privilege not eight roo and i will it's not allowed to impose
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judicial punishment and empirin them, you have to separately criminally try them. doesn't that. >> down that support my arguement? the constitution says you can't -- you can't empirin them. you can cry them for the rain could, after they leave office. suggesting strongly had to be regime. >> i thicket weakens your argue. the reason to have that's bias in favor of the rights of individuals is to avoid wrongfully empirining people because. >> since the impeachment process is designed to the president, not be subjected to judicial punish. i, is weak 'ed that concern and have to balance it against the rights of the public if the reason that you have this bias toward the defendant, in the until proven guilty and the high standard of proof is because the defendantes back and the state is -- the president is strong me
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and public is being protected by the impeachment provision. so it's not clear why you apply parallel standard. >> it's an interesting policy argue. but remember, under our constitution as well, you can't take away people's rights, even if it's a property right or -- >> what thissing rehere. >> the right notice be impeached and removed. >> where is that right establish ithe constitution because it maked it very hard to remove a president. >> that's not a right. that's an office. >> it's an office but the right to hold -- there or two rights the right to hold office. you have no right to hold office. you have to be elect. but once you're in option, the shame, the stigma, never has a president ever been removed. it is such a serious matter that you think i would think at least that you don't do it unless you resolved all doubts in favor of the criteria having been met. another example.
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a greatwhose hand gone over in the russians, happened original the russians, president who has taken money and committed all of these horrible cranes but because of the election you only get 60 publishes of the senators voting against him. would anybody in the world suggest that you can remove that president with only 60% rather than 67 and two-thirds pressure? no because the constitution said you can't. another case, assume the president commit treason and there's such an overwhelming case against him, there was a person in the room while he was committing treason and you recorded the information which he was committing treason the tugs requires two witnesses. here you have one witness and an unchallengeable tape recording, and there isn't a constitutional scholar in the world whoa would say you con convict somebody of treason on that basis. constitution says two witnesses.
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let's assume you have most brilliant guy in the world, 34 year old and runs for president. nobody would allow him to serve as president because the constitution says 35 years old. you just can't tinker with constitutional language. justice scalia and justice brennan used to have a big fight, is it's living constitution or a dead constitution. it's a foolish fight. part of the constitution is live market dead. the 35-year-old is dead. the part that says due process, equal appreciation, that's living because you can't know what processes do unless you look at what is going on in the world. but you can't change other provisions. we live longer. when we had life tenured to are upsing judges were appointed at 50 and lived until 355. -- until 55. now we're appointing fetuses to the supreme court the hope they'll serve 90 years. the republicans care so deeply
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but fetuses they're appointing them. nobody intended for these justices to serve 50 years yet they're going toment we have an amending process and that's the way to change the constitution. >> to your point but living and dead portion of the constitution, sirly aspects of this i think there's no academic disagreement about. no one will say you can convict in the senate with less than tornado. >> i would say you can convict without convictioning of train, bribery or -- >> the question is other, high crimes and minneapoliss a living phrase or dead phrase? the idea of what a misdemeanors was changed of time. why couldn't that continue to be the case? >> i don't think -- what has changed over time is the distinction between misdemeanorses and felonies. today nothing turns on whether it's a misdemeanors or a flown new hampshire the old day the laws turn. felony meant you were tainted, your family lows lost its wealth and under black stone you could be didn't sounds like a oxymoron
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>> -- convicted a cal yap misdemeanors and you can be executed for committing a misdemeanor so misdemeanor suggested very strongly a certain type of crime. now, you get gerald ford and maxine waters who say there's no criteria. whatever the house impeaches for, i there's a majority, that's it. whatever the senate removes for, that's it. that surely is not he law and even tribe and cass sunsteen admit that. the debate is whether or not you can define misdemeanor to include thing that aren't criminal but show an abuse of office. i think the better reading over the constitution is first you have to have a misdemeanor, the crime, then before you can impeach and remove you have to show that -- i'll give you an example from the life of one over drafters. you have soon the play,
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hamilton. alexander hamilton had a terrible incident in his life him was seduced by a woman while he was married and it was all a setup. he the husband of the whom who seduced him was in on it and went to him and extorted him to pay a lot of money. he wrote an essay which embarrassed his wife no end but the reason he wanted to write the essay is because he was accused of using treasury funds to pay the extortion and he wrote the essay, admitting the affair and the payment but categorically denying and with proving the fact he paid treasury fund. so he understood that the distinction between high and low crimes. having the affair and paying the extortion was a low crime. if he had used treasury friends it would be be a high crime and he could be impeached. he he understood that distinction. when i look at what he said during the debate, i certainly
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had that in mind. i read his statements with that personal history in mind, and that helped to convince me that when he said it needs to be something that corrupts government, he said meant that in addition, not instead of, the requirement of crime. let me make one more brief point. let's assume you're 100% right. let's assume i'm 100% wrong. why are people accusing me of not only being wrong but being badly motivated? motivated by money. motivated by greed. somebody even said i was motivated because i wanted to be on the supreme court. i'm turning 80 in a month. i am not a fetus. i'm practically a corpse. i'm the opposite of fetus. >> if trump is going to put someonor ailing on the court cheek put his sister on the court. >> she is a trick judge but there's a statute precludes a
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president from appointing close relative to positions. now, dispute whether a judge counsels as that but just make the point as a joke. why are people so insistent on questioning my motives? have aning are. with me. maybe you on the argue. it it's not a sin to put forth your best argument and be wrong. i. >> one more thing but this issue of -- [applause] >> thank you. >> whether impeachment requires a crime which is to to say you're just saying you believe you have the right reading here but who is the authority here who gets to decide? one of your key points is that the constitution binds all three branches of government. >> exactly. you forward this. >> if people in congress have a good faith disagreement where you or cass sunsteen are right and they witch to impeach the
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president and say we are with sunscreen buy this, we think we're into it toll do this -- >> great question. >> that is most likely up to congress. >> definitely is. >> their own interpretation. >> definitely up to congress but when you have three branches of government issue leather one out. president is impeached and removed without it bag crime. because congress believe outside don't need a crime. this president believe you need a crime. he says i'm not going anywhere. you violated the constitution. you didn't appropriately impeach and remove me. sue me. they're not going bring the army because the president control this army. congress doesn't. are they going to send police to remove him? the case goes to supreme court and there's no other alternative. i argue to avoid that kind of constitutional crisis, congress all to anywhere heri' reed the impeach criteria so not to
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create a conflict with the executive branch. it does, it's going to be up to the supreme court to decide who is right two and two prior justice he already said if this kind of conflict arises, congress acts improperly, then the supreme court might very well intervene and decide the case. i lay all that out in my book as a possible scenario. i'm not advising president trump if he were to be impeached and removed not to leave. i'm just saying that sit certainly a reasonable possibility when you have three branches of government and two of them disagree but to the interpretation of the constitution, and in the end that has to be decided by the supreme court. >> that would be very unlikely to be a problem. >> of course. >> basically as you know, you need two-thirds to convict in the senate so any political circumstance in which the president has been convict he, even when there's a question whether the thing was a crime
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you have a bipartisan coalition of senators who voted to convict him which would be -- only alive in a nixon type situation where the president is standing with the public has so degraded that members of his own party, both feel compelled and feel politically free to go against him and convict him. so in that circumstance it would be very. plus plausible the supreme court -- >> the supreme court would side with congress and wouldn't even have to reach the merits. they could say dis -- >> they might. >> that congress decided -- this is the john roberts court. roberts didn't want to overturn obamacare because he feared the political blowback on the court. the idea he would step into the 2010 then the -- >> lease not stepping inch he is presiding at the time remember that to impeach and remove a president, only a president, the chief justice presides. he is not an empty suit.
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not just an empty robe. he is going to be sitting there making rulings and if i were the president's lawyer -- not going to be the president's lawyer but if i were the first motion i would make is, mr. chief justice, you are the presiding judge here. this impeachment bill doesn't charge a crime. i hereby make a motion to dissmith the impeachment bill in front of you, your honor, the judge. the judge just says i'm just furniture, i'm not really a judge here, i'd say read the constitution. they specifically made you preside. you have a job to do. what do judges do? judges have to rule on motions to dismiss. let's assume the judge rules and says you're right, i dismiss, and the senate says, no, no, we're the senate, we overrule you, and we're going to rule against you. these are all hypothetical possibles. i'm a law professor so i have
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license to create hypotheticals. i've been doing it's 3 years. i don't -- >> i believe roberts said the senate is not just a jury, it's a court. wouldn't that imply it's up to the senate to mike the rulings. >> he said it's not just a jury. it's a court. but courts have also legal obligations, and if they -- let's assume the senate rules -- the senate votes, because it has slim majority, they vote to have 60%. they can't do that. even if the senate wants to do it, would you concede if the senate removed somebody with 60% rather than 67, it would go to he supreme court? >> yeah. >> so if you concede that, it's only a matter of degree to concede if there's no crime charged it would go to the supreme court. i don't think the senate is ever going charge anybody if it's not
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a crime. they charged nixon with multiple crimes and did not charge him with firing cox. they did not change george w. bush when he fired kasper weinberg are expects sitly and very specifically with a krupp motive to avoid casper wineberger testifying against him. nobody suggested that that's impeachable. if they were to impeach any president i think congress would find a crime. the more interesting issue is what the evidentiary requirements are for a crime. have to be proved beyond a reasonable doubt? does the two witness rule apply in impeachment? i don't know the answer to that and i say at that time very clearly in the book. >> i think this is a good time to turn and talk about the pick allegations against donald trump because i think there's key distinction to be drawn here but what would happen in an impeachment circumstance around trump you could imagine two things. one is you could imagine an
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article of impeach against a president for an act that everyone concedes is not a crime. if the president moves to london and stopped doing his job, sun steen contends you could impeachment the president. >> that may be what amendment 25 is about. if he leaves his job or you might find that he has voluntarily left -- i have another example. russia invades alaska. and says, just like we took back crimea, we're going to take back russia. the deal that we made selling russia for, what 25,, selling the alaska, it was bad deal, it -- and it's invalid. i'm taking back alaska, and the president doesn't do anything. says, i think you're right. i think you're right. alaska probably does belong to you. that would be most horrible thing and never be elected
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again. his party would be devastated. it's not an impeachable offense. the framers didn't think about that and didn't make emimpeachable weapon can't rewrite the constitution. >> this is not -- what he's going bill peached over. the basically this is not going to london either. >> right. >> this is my point. the circumstances not going to be congress impeaches over something that congress would agree up front is not a crime. rather it would be that congress would. pooch over something like seeking to obstruct justice through the firing of james comey and there would be a dispute where that act was a crime or not. >> i lay that possibility out in the book. >> this -- >> that's a hard question. >> this happens in criminal trials all the time the dispute is not did the defendant do acts. it's was x an act when that -- >> when that hayes every legitimate civil libertarian, which i mean to excludes the aclu -- every legitimate civil libertarian would say, you
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cannot expand these statutes this way. you can't use obstruction of justice like an accordion toking are people. when nix was was impeached i was ton the national board of the aclu. they were all in favor of impeaching the sob but debted not let the special prosecutor get away with anything. today the aclu made $130 million in distributions as a result of trump being elected. they have a abandoned civil liberties in favor of money and in favor of supporting certain basic left wing and ideological positions. they eave agooned free speech camp campus. now set a knew priority, not sure if wore going to defend free speech. i it's offensive to minority. the aclu lost it way. one reason i have to say what i'm saying and losing friends and even lose support among family members, i'm the only civil libertarian in the country
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who is prepared to make these argument. shame on the rest of the civil liberties community because -- [applause] -- because if all of these arguments were being made about hillary clinton, she obstructed justice by destroying the tapes, be done dim ire -- destroying her e-mail, oh, she obstructed justice, trade to get dirt. every civil libertarian would be saying you can't expand the statutes. i have one test in my life, called the shoe on the other foot test ymca have to ask yourself if the shoe were on the other foot, where would you be? i honestly believe that almost everybody who is arguing for the impeachment of president trump would be arguing against the impeachment of hillary clinton based on exactly the same facts and the same information. that is scandalous if that's true. >> let's talk but the facts and whether it would really constitution a stretching of the
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obstruction of justice. >> i want to get into something first. that is i want to apply the name standards. he when you ask would you bit a stretching, maybe it wouldn't but if civil lewis lewis lib -- libertarians thoughts it was being stretching done the aclu is often wrong but always used to defend civil liberties and used to argue that you don't stretch obstruction of statute -- >> but the aclu is not on trial. >> yes it, that's the reason i wrote bee book because the aclu failed in its mission. [applause] >> you're contention basically about the -- the theoretical obstruction case around the president involves a none number of official acts, asking the fbi director if he can go easy on mike flynn, firing the fbi director and making several indications he did that at least in part because he was upset about the russia investigation.
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>> assume all of that is true. >> so i questions your convention is basically that because these are constitutional powers of his, that it cannot be a criminal act would. >> that's right. cannot -- you need an mens rea for there to be a crime. it is it i her inconsistent to have as the act reas, the act of constitutional authorized act, such as president bush pardoning casper wine erring, let me give you some history. thomas jefferson was determined to convict aaron burr of treason. her told his attorney general, you must prosecutor him. told the chief justice of the united states, the third cousin, i if you don't convict this guy i'll get you impeached. he misdemeanor arranged to witnesses to come into the white house and made deal-the-witnesses personally saying if your willing to testify against this guy i'll give you pardon. no such thing is a immunity. religion give you pardon.
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i if if you you're unwilling to testify ghosn him, i religion tell my attorney general to go after you. attorney generals are not in the constitution. doesn't have to appoint an attorney joan. he can make himself an attorney general. net netanyahu i pointed him foreign mence, the president can appoint himself attorney general, secretary of war, and if he does that, he can do all of these things. this is a terrible system. i'm totally against it. but it's the constitution. i don't understand what they would mean that an act -- an official act authorized by the constitution couldn't be obstruction of justice. i want to give a similar example. let's suppose i have a bunch of documents. they're my documents, my property, i'm legally entitiled to do basically whatever i -- >> nor in the president, though, right. >> no i'm not making the argument that all innocent acts can never be the -- i'm saying a constitutionally authorized act has a special status and you
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can't go around probing the motives of presidents. we can start probe the motives of presidents, why did president obama do certain thing? well because he is a patriarch, partisan, a democrat, wants to go down in history positively, want to do favors for certain people. i'm talk it boy any president. >> this isn't about probe the mosttive of poo president but people. obstruction of justice is a crime where motive is a key element. the person hayes to have intent. >> that's not enough. the act has to be illegal. >> no. shredding my document hoised illegal. what is illegal i'm doing it not the corrupt person of enter sphering with an investigation. >> but you have no right to some head documents. >> it's my right to property. >> no, no. there's a statute, to law. that says if you have been subpoenaed or expect to be
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subpoenaed it is a crime to shred the documents. i eye shred you adults it's not other crime. if go home today and say it wouldn't be dish have some documents here, i'll give you a better example. let's assume you go online and you access some dirty movies and you just don't feel like people knowing that. so you go home and you figure out a way dish wouldn't know how to do that good-you get rid of it. but that -- if you do that by yourself, that's not a crime. i if you have subpoenaed or expect to be subpoenaed by somebody who is charging with you child pornography or whatever this is the crime. you cannot find for me a case, anywhere in our history, where a president has been tried, been prosecuted, been impeached, for a constitutionally authorized act. >> usual circumstance. >> -- if we ever trade to do it, every liberal would be
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jumping up and down if i were a democratic president and to liberal president but we're trying be creative. the one thing you can't be as criminal lawyer 0 prosecutor you cannot be creative. it's against in the constitution. you have to be a boring, dull prosecutor, who only looks at the statute books, looks at precedent and only prosecutes people for clear crimes. turned to stalin and said, mr. stamin you show me the man and i'll find you the crime. we don't ever want america to turn that way. the crime has to be there for all to see. there's a very famous case about that. justice holmes back in 1920 something, a statute that said, anybody who transports a vehicle, a vehicle -- i think a motor vehicle, in interstate commerce is guilty of a crime.
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very clear statute. motor vehicle. it was written before airplanes. the first guy stole an airplane, first guy to steal an airplane, was prosecuted. stole a vehicle. it had a motor and he was prosecuted and holmes said no, no, it's not clear enough. by motor vehicle, at the time it was written, what was contemplated was something that drives along the ground. if congress wanted to change that statute, and apply it to airplanes which they did the very next day, that is final, but don't be creative, prosecutors. >> the standard you laid out here steams crocketly to me. you have warned about -- contradictory to me you warned it's a -- to vest so much power in the president but going out your way to read in this idea bat thaws the president has certain constitutional powered that place's -- seems to be unique position where we cannot read into his motives, an element of a crime when that maybe by done with ordinary --
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>> can't be done with senators or congressmen, can't be done with judges and can't be done with prosecutors. the constitution gives senators and congressmen immunity. are they above the law? no, it's the law which says you can't question a senator. there's a pick clause in the constitution that says that what clause are you reading into -- >> the same clause that gives judges immunity. the judges said, in a terrible case -- but not from impeachment. we're talking about impeachment, i. >> thought we were talking whether or not you prosecutor, whether it's crime. >> whether it's a crime because i -- we're talk about now standard that needs to be a crime in order item peach. >> first we have to ask the question, is it's crime. a corrupt judge somewhere in the south, a man who is his friend comes to him and says my wife -- my daughter is being sexually promiscuous. i think there may have been a
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racial element. she was white and maybe the man she was quote promess accuse with was black and i'm terrified she would get pregnant. want us to get together and come in and seek permission from you to have her have an appendectomy and she won't ever know that her tubes are being tied. so, they brought the young woman in, she had a, quote, appendectomy, her tubes were tied, meets a wonderful man, different guy, marries him, they can't have children. he she goes he doctor and says your tubes were tied. she sues the jump, can you imagine anything more horrible than the judge doing that? united states supreme court this, unanimously, ruled judges are immune. >> but he could have been impeached. >> only if there's a statute that says you can be impeached nor noncriminal behavior. if this is a -- wasn't a federal judge, state judge. maybe the state law permits
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impeachment. federally he could not be impeached for that. i it's not a crime. >> it's battery. >> well -- then why does he get immunity for' it? >> it would have to be a crime for you to be immune from -- >> he didn't touch the woman. a stretched argument it was a conspiracy -- >> i think if you arrange for snob get a surgery they had nonintendded to def you -- >> it certainly should be a crime, and it's certainly should be a crime. and perhaps it is. the point is a very different one, though. >> i think -- over over. >> every branch of government has immunity. >> but not from impeachment. couldn't criminally -- >> that's controversial. >> you do impeach him for an act like that. >> not if the constitution situation you can't. it sounds -- >> if i were writing the constitution -- well -- i'm pretty sure that's a crime.
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so immunity from prosecution but you can system inpeople. >> i agree. if you have the president committing a crime -- of course you're right. if the president were -- nixon is the perfect case. couldn't approach nix nonnor playing hour money forks tellings to lie to the fbi and destroying evidence. the president can't be prosecuted. but you could impeach him for that because it's a crime. assert that point. you can -- as long as it's kyle a crime but he point i was making is that doesn't put the president above the law. it's the law that sitsets out the restrictions for senators, congressmen and you're right, all of them can be impeached if the committed a crime. just can't be prosecuted and they can't be impeached unless they committed a crime. >> die want to talk -- inknow we have talked about your shunning
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martha venezuela vineyard. >> started by dish was just minding my own business and everybody the vineyard started telling me there were a bunch of people -- only a handful -- that wouldn't attend any event that i was invited to, told the film society that they would cut off funding from the film society if they invited me, and a series of other things like that. so how do you respond to that? i wrote about it. i'm not embarrassed. i wrote about it. and mostly people on the vineyard very career critical of those who took that position. i've gotten invited to more dinners and parties from martha's vineyard to nantucket, and in the end result is the few people who stayed away. it doesn't affect me at all. it affected me wife a little bit because she has a social circumstance., she has friends and i'm not dish would not win any pop layer -- popularity
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contests today. if we were writing the same book but hillary clinton there we be a statute for me. >> i think obviously there's a high and unusually high level of political tension but i think part of why people are having this reacts to you -- i'd like your -- i think people kind of think you're being a troll. >> what does a troll mean. >> you're doing this for the sake of contraryon. >> my whole life i've dune -- i'm a contrarian. that's what i do. i'm a professor. i'm a teacher, i try to be -- always take positions that other people won't take. i think i'm performing an extraordinarily valuable function by doing what the aclu should be doing. [applause] >> i don't know why you call that a troll. again, if the shoe were on the other foot and aberdeen was trying to push hillary clinton
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into jail you wouldn't call me a troll if i took a contraryon position, so, yes, contrarian, no troll. >> but contrarian isn't the principle. sometimes the reason everybody things something is not there's like dumb group think. sometimes i they're just right. >> let them debate me and if people think they're right issue religion rulings the deby a. you may have won tonight's discussion. >> it's not a competition. >> why is that a bad thing? for me to be stating a position -- in class, i used to state positions that were outrageous, just to get students thinking and talking. for example, students didn't know that i had been devoting my whole life to opposing the death penalty. in class, i defend the death penalty because i couldn't get students until ted cruz became a student of mean, then it was easy. didn't have to be the devil's advocate. had the devil in my class himself. but before that, i would -- i --
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i taught a class on where do yours morality come from and i gave students essays written by southerners, during the precivil war period, that justified slavery. when you read calhoun's essay, justifying slavery, makes you think about it and so i would give students that, and in the end it strengthened their positions against slavery, but i always presented contrarian views. that's what tenure is about. that's why you are given tenure at a university to be able to express views that nobody else is willing to express. do you acknowledge it's important to have a debate about this issue? nobody else was taking that position. and maybe in the end i'm wrong. don't think so. i think ill will prevail in the court of public opinion but a
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that's up to you folks, not me. but why do you call me a troll just because i'm stating a position? i believe in this position deeply. i deeply believe in this position. the same position i've been taking for 50 years. i don't support president trump, i'm not certainly acting on his behalf by no means at all. he doesn't like the fact i oppose his policies and oppose his supreme court, his way he approach this supreme court. but i'm sticking to my principles. think troll, a little harsh. >> i want to ask some questions that came from the audience. first, someone asked if you considered summering in nantucket. >> i forever be among democrats who hate me than republicans who love me. >> there's a question here that's basically about the role that an inspector general could conceivably play in
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investigating the president and actually rite relates to somethingout, that you argue that's attorney general is a perspective designed position and ought to be split into two, an independent prosecutor that the president couldn't fire or there would be a strong norm against firing, although a lot of good that different we fbi direct you're. >> if could write the law i'd say it should be like england and israeli you have a director of public prosecution that is not under the control of the executive branch, totally independent, and then you have a minister of justice who is supposed to be loyal to president, an adviser. he merged those two positions into something called attorney general it and creates an inherent conflict of interest. >> in a circumstance like that, would whatever mule are is investigating be under the purview of that independent prosecutorial office? no what -- what mueller regs would be. would never snead a special independent council because every counsel would be independent.
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my view is even this investigation should have bun done by the southern district of new york, by the district of columbia, but the district of virginia. the difference between a special counsel and ordinary prosecutor -- we have people who are prosecutors who have been prosecutors 30 years, they are totally nonpartisan, they're very good, very decent people. the difference is when they investigate somebody for a year and don't come up with anything they've done their job. if you appoint a special counsel and you give them 30, $40 million and a staff of 30 tell them to investigate particular areas and comes up with nothing he's a failure and that's not the way the criminal justice system should operate. mueller will have some low-hanging fruit and going somebody like manafort on a tax charge to 2005 and squeeze him as judge ellis who wrote a very good opinion in the case says, not only do the sometimes squeeze them to sing, but sometimes they even compose. they become creative about the
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stories. it's a problem and you're going to get 10, 15, 20 people, indicted and they'll all plead guilty because prosecutors can get anybody to plead guilty and can indict a ham sandwich. but i think that in the end, we'll be convinced that mueller was unnecessary, probably write a report, the report will not lead to an empeople. or removal. we'll have spent a lot of money a lot of public attention. if he comes -- >> or people will have already be indicted and some have bread. >> those are low, hanging fruit. >> manafort was the manager of his campaign. >> what is he indicted for? look. >> bank fraud and violations of foreign agent registration act. >> if you talk a thousand businessmen and probe them you'll find many -- >> you think paul manafort's activities were notable usually criminal. >> i think they were ununusually criminal and nobody would have ever found them unless they were
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looking to squeeze and get him the same thing is true with cohen. half the people indicted will be indicted for crimes committed after they war investigated in order to cover up their investigation. those are called crimes that are created by the very fact nat you are going after them. they're crimes to be sure but that's not what a special counsel is supposed to be doing. i i he ends up prosecuting flynn and prosecuting manafort and nobody really close to the president, it will be a failure, and so -- >> not a failure -- >> flynn was national security aroader and manafort managed his campaign. >> look at manafort, how many people here believe in the presumption of innocence? manafort is now no solitary confinement, 23 hours a day without having been convicted of any crime.
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he has been indicted, indicted, you can indict a ham sandwich and there are tens of thousands of mine young people today in prison without having been convicted of any crime. indictment is enough to lock somebody up in rikers and if you don't think rikers is punishment, go visit it some day. this is a scandal. how many people today are in jail before there's a conviction, without a conviction, there's something very wrong with that whether it's paul manafort or a poor 20-year-old black kid who can't raise bail. [applause] >> one last question. a question gout judge kavanaugh. what decisions he might overturn or chip away at our cause. want to ask you spinningly but 2001 at that time relates to the matter in this book which is clinton versus jones, which is the decision that required bill
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clinton to testify in the civil suit that paula jones brought against him, the successor suits that similarly involved president nixon. do you think that -- i think kavanaugh's writing bass been misinterpreted because the argued for legislative changes and has not specifically said whether the things the decisions were mistaken dovelet you think clinton vs. joan was ongoing. >> absolutely. >> a president shouldn't have to testify. >> i was totally opposed to clinton verse jones when it happened. cower -- >> what the about nixon. >> of course the president should have to testify in front of -- in a deposition after he leaves office. the statute of limitations should be postponed. if you start burdening a president with every civil suit that anybody can possibly bring, it seems to me that real jim poses an extraordinarily rick burden on the president. if i had ban justice i would have voted against the jones
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case. by the way -- >> that's a policy argue. what in the us -- >> nothing the constitution either way and wasn't decided on constitutionalgrounds. decided simply on the ground that there is no basis for excluding a president from a normal civil suit. >> what is the basis, the legal basis for excluding -- >> the legal basis is you look at the job of the president -- courts have discretion in civil cases. no civil case should ever be tried in court. every civil case should be done by alternate dispute resolution. this court should be reserved for seriesous criminal okays. the way depositions work today the lay saul lawsuits work told, destroys our legal system. there's some probably litigators here who are saying, my god, you're taking away our business '. 99% of civil case never get to court. it's foremay without intercourse. it's all depositions, it's all
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preliminary, all that you never get to the climax, and i think a system can be improved kirby if considerably if the constitution doesn't admit it. i don't kavanaugh was appoint because he are help the president. kavanaugh takes a completely different view than i take on the criteria for impeachment. he says that probably you can impeach for committing a das startly act. chew imagine what -- how many people in the room have committed a das startly act? i mean, what is dag startly -- extras dastardly act mean? if the president was looking for somebody to protect hem he show if a appointed me, and i'm 80, than appoint kavanaugh who has a mixed record. he experienced more experience than the nine justices, in the
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starr -- and he said if it was up to him eat have legislation that powe -- postponed all these legal proceedings until after the presidency is done. that seems to be in the spirit of the constitution but with nixon, obviously, with impeachment you can't postpone. with impeachment the president must be subject and that's the cost you have to pay. >> i want to thank you for -- >> the next -- [applause] ...
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