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Trump Team Defends President Amid Bolton Revelations. Aired 8- 9p ET

Aired January 27, 2020 - 20:00   ET



He argued that Johnson did not violate the articles of impeachment, as you've heard from other lawyers today, but even if he did that the articles do not charge impeachable offenses which is the argument that I am making before you this evening, Justice Curtis' first position, however, was that the articles did not charge an impeachable offense because they did not allege high crime offenses against the United States.

According to a Harvard historian and law professor, Nikolas Bowie, Curtis' constitutional arguments were persuasive to at least some senators who were no friends President Johnson including the co- authors of the 13th and the 14th Amendments. As Senator William Pitt Fessenden later put it, Judge Curtis gave us the law and we followed it.

Senator James W. Grimes echoed Curtis's argument by refusing to accept an interpretation of high crimes and misdemeanors that changes according to the law of each senator's judgment enacted in his own bosom after the alleged commission of the offense though he desperately wanted to see President Johnson, who he despised, out of office, he believed that an impeachment and removal without the violation of law would be, quote, "construed into approval of impeachments as part of future political machinery."

According to Professor Bowie, Justice Curtis' constitutional arguments may well have contributed to the decision by at least some of the seven Republican dissidents to defy their party and vote for acquittal which was secured by a single vote. Now, today, Professor Bowie has an article in the New York Times in which he repeats his view that, quote, "impeachment requires a crime."

But he now argues that the articles of impeachment do charge crimes. He is simply wrong. He is wrong because in the United States v. Hudson, a case decided almost 200 -- more than 200 years ago now, the United States Supreme Court ruled that federal courts have no jurisdiction to create common-law crimes.

Crimes are only what are in the statute book. So, Professor Bowie is right that the Constitution requires a crime for impeachment, but wrong when he says that common law crimes can be used as a basis for impeaching even though they don't appear in the statute books.

Now, I'm not here arguing that the current distinguished members of the Senate are in any way bound, legally bound, by justice Curtis's arguments or those of Dean Dwight. But I am arguing that you should give them serious consideration, the consideration to which they are entitled by the eminence of their author and the role they may have played in the outcome of the closest precedent to the current case.

Now, I want to be clear. There is a nuanced difference between the arguments made by Curtis and Dwight and the argument that I am presenting here today based on my reading of history.

Curtis argued that there must be a specific violation of pre-existing law. He recognized that at the time of the Constitution, there were no federal criminal statutes, of course not. The Constitution established the national government, so we couldn't have statutes prior to the establishment of our Constitution and our nation.

This argument is offered today by proponents of this impeachment. On the claim that framers could not have intended to limit the criteria to -- for impeachment to criminal-like behavior.

Justice Curtis addressed that issue and that argument head-on. He pointed out that crimes such as bribery would be made criminal by the laws of the United States which the framers of the Constitution knew would be passed. In other words, he anticipated that Congress would soon enact statutes punishing and defining crimes such as burglary, extortion, perjury, et cetera. He anticipated that and he based his argument in part on that.

The Constitution ready included treason as a crime and that was defined in the Constitution itself and then it included other crimes. But what justice Curtis said is that you could include laws written or unwritten or expressed or implied by which he meant common law which at the time of the Constitution, there were many common law crimes and they were enforceable even federally until the Supreme Court many years later decided the common law crimes were no longer part of federal jurisdiction.

So, the position that I've derived from history would include -- and this is a word that has upset some people -- but would include criminal like conduct akin to treason and bribery.


There need not be in my view conclusive evidence of a technical crime that would necessarily result in a criminal conviction.

Let me explain. For example, if a president were to receive or give a bribe outside of the United States and outside of the statute of limitations, he could not technically be prosecuted in the United States for such a crime. But I believe he could be impeached for such a crime because he committed the crime of bribery even though we couldn't technically be accused of it in the United States. That's the distinction that I think we draw.

Or if a president committed extortion, perjury, or obstruction of justice, he could be charged with these crimes as impeachable offenses because these crimes, though not specified in the Constitution, are akin to treason and bribery. This would be true even if some of the technical elements, time and place, were absent.

What Curtis and Dwight and I agree upon -- and this is the key point in this impeachment case, please understand what I'm arguing -- is that purely non-criminal conduct, including abuse of power and obstruction of Congress, are outside the range of impeachable offenses. That is the key argument I'm presenting today.

This view was supported by text writers and judges close in time to the founding. William Oldwell (sic) Russell, whose 1819 treatise on criminal law was a Bible among criminal law scholars and others, define high crimes and misdemeanors as, quote, "such immoral and unlawful acts as are nearly allied, and equal in guilt, to a felony; and yet, owing to the absence of some technical circumstances, technical circumstances, do not fall within the definition of a felony."

Similar views were expressed by some state courts, others disagree. Curtis considered views and those of Dwight Russell and others based on careful study of the text and history are not bonkers, absurdist, legal claptrap, or other demeaning epithets thrown around by partisan supporters of this impeachment.

As Judge Starr pointed out, they had the weight of authority. They were accepted by the generation of founders and the generations that follow. If they are not accepted by academics today, that shows weakness among the academics, not among the founders.

These who disagree with Curtis's textual analysis are obliged, I believe, to respond with reasoned counter interpretations, not name- calling. If Justice Curtis's arguments and those of Dean Dwight are rejected, I think the proponents of impeachment must offer alternative principles, alternative standards for impeachment and removal.

We just heard that in 1970, Congressman Gerald Ford who I greatly admired said the following, in the context of an impeachment of a justice and impeachable offenses wherever a majority of the House of Representatives considered it to be at a given moment in history, et cetera. You all know the quote.

Congresswoman Maxine Waters recently put it more succinctly in the context of a presidential impeachment. Here's what she said, "Impeachment is whatever Congress says it is. There is no law."

But this lawless view would place Congress above the law. It would place congress above the Constitution. For Congress to ignore the specific words of the Constitution itself and substitute its own judgments would be for Congress to do what it is accusing the president of doing, and no one is above the law, not the president, and not Congress.

This is precisely the kind of view expressly rejected by the framers who feared having a president serve at the pleasure of the legislature and it is precisely the view rejected by Senator James Grimes when he refused to accept an interpretation of high crimes and misdemeanors that would change according to the law of each senator's judgment enacted in his own bosom. The Constitution requires, in the words of Gouverneur Morris, that the criteria for impeachment must be enumerated and defined. Those who advocate impeachment today are obliged to demonstrate how the criteria accepted by the House in this case are enumerated and defined in the Constitution.

The compelling textual analysis provided by Justice Curtis is confirmed by the debate in the Constitutional convention by the Federalist papers,


by the writings of William Blackstone, and I believe by the writings of Alexander Hamilton which were heavily relied on by lawyers at the time of the Constitution's adoption.

There were, at the time of the Constitution's adoption, two great debates that went on and it's very important to understand the distinction between these two great debates. The first, hard to imagine today, but the first was should there be any power to impeach a president at all, and there were several members of the founding generation and of the framers of the Constitution who said no. Who said no, a president shouldn't be allowed to be impeached.

The second, and the second is very, very important in our consideration today, is if a president is to be subject to impeachment, what should the criteria be? These are very different issues and they are often erroneously complete -- conflated.

Let's begin with the first debate. During the broad debate about whether a president should be subject to impeachment, proponents of impeachment used vague and open-ended terms such as unfit, obnoxious, corrupt, misconduct, misbehavior, negligence, malpractice, perfidy, treachery, incapacity, peculation, and maladministration.

They worry that a president might, quote, pervert his administration into a scheme of speculation and oppression. But he might be corrupted by foreign influence, and yes, this is important that he might have great opportunities of abusing his power.

Those were the concerns that led the framers to decide that a president must be subject to impeachment, but not a single one of the framers suggested that these general fears justifying the need for an impeachment and removal mechanism should automatically be accepted as a specific criterion for impeachment.

Far from and as Gouverneur Morris aptly put it, "corruption and some other offenses ought to be impeachable, but the cases ought to be enumerated and defined. The great fallacy of many contemporary scholars and pundits, and with due respect, members of the House of Representatives, is that they fail to understand the critical distinction between the broad reasons for needing an impeachment mechanism and the carefully enumerated and defined criteria that you authorize the deployment of this powerful weapon.

Let me give you a hypothetical example that might have faced Congress or certainly will face Congress. Let's assume that there is a debate over regulating the content of social media, whether we should have regulations or criminal civil regulations over Twitter, Facebook, et cetera.

In the debate over regulating the social media, proponents of regulation might well cite broad dangers such as false information, inappropriate content, hate speech. Those are good reasons for having regulation. But when it came to enumerating and defining what should be prohibited, such broad dangers would have to be balanced against other important policies and the resulting legislation would be much narrower and more carefully defined in the broad dangers that necessitated some regulation.

The framers understood and acted on this difference, but I'm afraid that many scholars and others in members of Congress failed to see this distinction and they cite some of the fears that led to the need for impeachment mechanism, they cite them as the criteria themselves. That is a deep fallacy and is usually important that the distinction be sharply drawn between arguments made in favor of impeaching and the criteria then decided upon to justify the impeachment specifically of a president.

The framers understood this. And so, they got down to the difficult business of enumerating and defining precisely which offenses among the many that they feared a president might commit should be impeachable as distinguished from those left of the voters to evaluate. Some framers such as Roger Sherman wanted the president to be removable by the national legislature at his pleasure, much like the British Prime Minister can be removed by a simple vote of no confidence by Parliament. That view was rejected.

Benjamin Franklin opposed decidedly the making of the executive, quote, "the mere creature of the legislature." Gouverneur Morris was against the dependence of the


executive on the legislature, considering a legislature, you will pardon me quoting this, "a great danger to be apprehended." I don't agree with that. James Madison expressed concerns about the president being improperly dependent on the legislature, others worried about a feeble executive.

Hearing these and other arguments against turning the new Republic into a parliamentary democracy in which the legislature had the power to remove the president, the framers set out the strike the appropriate balance between the broad concerns that led them to vote for a provision authorizing the impeachment of the president and the need for specific criteria not subject to legislative abuse or overuse.

Among the criteria proposed were malpractice, neglect of duty, malconduct, neglect in the execution of office, and -- and this word we'll come back to talk about -- maladministration. It was a response to that last term, a term used in Britain as a criteria for impeachment that Madison responded, so vague a term will be equivalent to a tenure during the pressure -- pleasure of the Senate.

Upon hearing Madison's objections, Colonel Mason withdrew maladministration and substituted other high crimes and misdemeanors, had a delicate proposed inclusion of abuse of power or obstruction of Congress as enumerated and defined criteria for impeachment history strongly suggests that Madison would've similarly opposed it and it would have been rejected.

I will come back to that argument a little later on when I talk specifically about abuse of power.

Indeed, Madison worry that a partisan legislature could even misuse the word misdemeanor to include a broad array of non-crimes so he proposed moving the trial to the nonpartisan Supreme Court. The proposal was rejected. Now, this does not mean as some have suggested that Madison suddenly changed his mind and favored such misuse to expand the meaning of misdemeanor to include broad terms like misbehavior.

No, it only meant that he feared it. He feared that the word misdemeanor could be abused. His fear is moving to be prescient by the misuse of that term high crimes and misdemeanors by the House in this case.

Now, the best evidence that the broad concerns cited by the framers to justify impeachment were not automatically accepted as criteria justifying impeachment is the manner by which the word incapacity -- focus on that word, please -- incapacity was treated. Madison and others focused heavily on the problem of what happens if a president becomes incapacitated.

Certainly, a president who's incapacitated should not be allowed to continue to preside over this great country and everyone seemed to agree that the possibility of presidential incapacity is a good and powerful reason for having an impeachment provision. But when it came time to establishing criteria for actually removing a president, incapacity was not included.

Why not? Presumably, because it was too vague and subjective a term. And when we had an incapacitated president, in the end of the Woodrow Wilson second term, he was not impeached and removed. A constitutional amendment with carefully drawn procedural safeguards against abuse was required to remedy the daunting problem of a president who was deemed incapacitated.

Now, another reason why incapacitation was not included among impeachable offense is because it's not criminal. It's not a crime to be incapacitated. It's not akin to treason. It's not akin to bribery. And it's not a high crime and misdemeanor.

The framers believed that impeachable offenses must be criminal in nature and akin to the most serious crimes. Incapacity, simply, did not fit into this category. Nothing criminal about it.

So, the Constitution had to be amended to include a different category of noncriminal behavior that warranted removal. I urge you to consider seriously that in point an important part of the history of the adoption of our Constitution.

I think that Blackstone and Hamilton also support this view. There is no disagreement over the conclusion that the words treason, bribery, or other high crimes, those words require criminal behavior. The debate is only over the words and misdemeanors. The framers of the Constitution were fully cognizant to the fact that the word misdemeanor was a species of crime.


The book that was most often deemed authoritative was written by William Blackstone in Great Britain. And here is what he says about this in the version that was available to the framers, "a crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding or commanding it, the general definition comprehends both crimes and misdemeanors, which properly speaking, are mere synonymous terms." Mere synonymous terms.

He then went on, though, in common usage the word crimes is made to denote such offenses are of a deeper and more atrocious die while small faults and omissions of less consequence are comprised under the gentler name of misdemeanors only.

Interestingly, though, he pointed out that misdemeanors were not always so gentle. There was a category called capital misdemeanors where if you stole somebody's pig or other fowl, you could be sentenced to death but it's only for a misdemeanor, don't worry. It's not for a felony, but there were misdemeanors that were capital in nature.

Moreover, Blackstone wrote that parliamentary impeachment, quote, is a prosecution -- a prosecution of a ready-known and established law presented to the most high and Supreme Court of criminal jurisdiction analogous to this great court. He observed that a commoner can be impeached but only for high misdemeanors, appear may be impeached for any crime, any crime. This certainly suggests that Blackstone deemed high misdemeanors to be a species of crime.

Hamilton is a little less clear in this issue and not surprisingly, because he was writing in Federalist Number 65, he was writing not to define what the criteria for impeachment were, he was writing primarily in defense of the Constitution as written, unless to define its provisions.

But he certainly cannot be cited in favor of criteria such as abuse of power or obstruction of Congress nor of impeachment voted along party lines. He warned that the greatest danger, these were his words, greatest danger is that the decision will be regulated more by the comparative strength of parties and by the real demonstrations of innocence or guilt.

In addition to using the criminal terms, innocence or guilt, Hamilton also referred to quote, prosecution and sentence. He cited the constitutional provisions that states that the party convicted shall nevertheless be liable and subject to a criminal trial as a reason for not having the president tried before the Supreme Court.

He feared double prosecution. A variation of double jeopardy before the same judiciary. These points all sound in criminal terms.

But advocates of a broad, open-ended noncriminal interpretation of high crimes and misdemeanors insist that Hamilton is on their side. And they cite the following words regarding the court of impeachment. And I think I've heard these words quoted more than any other words in support of a broad view of impeachment and they're misunderstood.

Here's what he said when describing the court of impeachment. He said the subjects of its jurisdiction's, those are important words, the subjects of its jurisdiction, by which he meant treason, bribery, and other high crimes and misdemeanors, the subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to society itself.

Those are Hamilton's words. They're often misunderstood as suggesting that the criteria authorizing impeachment include the misconduct to public man or the abuse or violation of some public trust. That is a misreading.

These words were used to characterize the constitutional criteria that are the subject of the jurisdiction of the court of impeachment namely treason, bribery, or other high crimes and misdemeanors. Those specified crimes are political in nature. They are the crimes that involve the misconduct of public man and the abuse violation of some public trust.

Hamilton was not expanding the specified criteria to include as independent grounds for impeachment misconduct, abuse, or violation. If anything, he was contracting them to require in addition to proof of the specified crimes also proof that the crime must be of a political nature.

This would exclude President Clinton's private nonpolitical crime.


In fact, and this is interesting, Hamilton's view was cited by Clinton's advocates as contracting not expanding the meaning of high crimes. Today, some of these same advocates, you look at the same words and cite them as expanding its meaning.

Clinton was accused of a crime, perjury. And so, the issue in this case was not whether the Constitution required a crime for impeachment, instead the issue was whether Clinton's alleged crime could be classified as a high crime in light of its personal nature.

During the Clinton impeachment, I stated in an interview that I did not think that the technical crime was required, but that I did think that abusing trust could be considered. I said that. At that time, I had not done extensive research on that issue because it was irrelevant to the Clinton case and I was not fully aware of the compelling counterarguments. So, I simply accepted the academic consensus on an issue that was not on the front burner at the time.

But because this impeachment directly raises the issue of whether criminal behavior is required, I've gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit the criteria for impeachment to criminal-type acts akin to treason, bribery, and they certainly did not intend to extend it to vague and open-ended and non-criminal accusations such as abuse of power and obstruction of Congress.

I publish this academic conclusion, well before I was asked to present the arguments to the Senate in this case, my switch in attitude purely academic, purely nonpartisan nor am I the only participant in this proceeding who has changed his mind. Several members of Congress, several senators, expressed different views regarding the criteria for impeachment when the subject was President Clinton than they do now.

When the president was Clinton, my colleague and friend, Professor Laurence Tribe who is advising Speaker Pelosi now wrote that a sitting president could not be charged with a crime. Now, he's changed his mind. That's what academics do and should do based on new information.

If there are reasonable doubts about the intended meaning of high crimes and misdemeanors, senators might consider resolving these doubts by reference to a legal concept known as lenity. Lenity goes back to hundreds of years before the founding of our country and was a concept in Great Britain, relied upon by many of our own justices and judges over the years. It was well-known to the legal members of the founding generation.

It required that in construing a criminal statute that is capable of more than one reasonable interpretation, the interpretation that favors the defendant should be selected unless it conflicts with the intent of the statute. It has been applied by Chief Justice Marshall, Justice Oliver Wendell Holmes, Frankfurter, Felix Frankfurter, Justice Antonin Scalia and others.

Now, applying that rule to the interpretation of high crimes and misdemeanors would require that these words be construed narrowly to require criminal-like conduct akin to treason bribery rather than broadly to encompass abuse of power and obstruction of Congress.

In other words, if senators are in doubt about the meaning of high crimes and misdemeanors, the rule of lenity should incline them toward accepting a narrower, rather than a broad interpretation. A view that rejects abuse of power and obstruction of Congress as within the constitutional criteria.

Now, even if the rule of lenity is not technically applicable to impeachment, that's a question, certainly, the policies underlying that rule are worthy and deserving of consideration as guides to constitutional interpretation.

Now, here I'm making, I think, a very important point, even if the Senate were to conclude that a technical crime is not required for impeachment, the critical question remains -- and it's a question, I know, one which I'd myself, too, do abuse of power and obstruction of Congress constitute impeachable offenses? The relevant history answers that question clearly in the negative.

Each of these charges suffers from the vice of being, quote, so vague a term that they will be equivalent of tenure at the pleasure of the Senate. To quote again, the father of our Constitution. Abuse of powers and accusation easily leveled by political opponents against controversial presidents. In our long history, many presidents have been accused of abusing their power.

I will now give you a list of presidents who, in our history, have been accused of abusing their power who would be subject to impeachment under the House manager's view of the Constitution.


George Washington, refusal to turn over documents related to the Jay Treaty. John Adams, signing and enforcing The Alienist addition laws. Thomas Jefferson, purchasing Louisiana without congressional authorization. I'll go on. John Quincy Adams, Martin Van Buren, John Tyler, arbitrary, despotic and corrupt use of the veto power.

James Polk, here I quote Abraham Lincoln. Abraham Lincoln accused Polk of abusing his power of his office, contemptuously disregarding the constitution, usurping the role of Congress and assuming the role of dictator. He didn't seek to impeach him, he just sought to defeat him. Abraham Lincoln, Abraham Lincoln was accused of abusing his power for suspending the writ of habeas corpus during the Civil War.

President Grant, Grover Cleveland, William McKinley, Theodore Roosevelt, William Taft, Woodrow Wilson, Franklin Roosevelt, Harry Truman, Jimmy Carter, Ronald Reagan, quote, concerning Iran-contra. And now I say Professor Laurence Tribe said the following, "Therein lies what appears to be the most serious breach of duty by the president, a breach that may well entail an impeachable abuse of power."

George H.W. Bush, the following was released today by the Clinton/Gore campaign. In the past weeks, Americans have begun to learn the extent to which George Bush and his administration have abused their governmental power for political purposes. That's how abuse of power should be used, as campaign rhetoric. It should be in statements issued by one political party against the other. That's the nature of the term.

Abuse of power is a political weapon and it should be leveled against political opponents. Let the public decide. That's true. Barack Obama, the House Committee and the Judiciary held an entire hearing entitled Obama administration's abuse of power.

Now by the standards applied to earlier presidents, nearly any controversial act by a chief executive could be denominated abuse of power. For example, past presidents have been accused of using their foreign policy, even their war powers to enhance their electoral prospects. Presidents often have mixed motives that include partisan, personal benefits along with the national interest.

Professor Josh Blackman, constitutional law professor, provided the following interesting example. "In 1864, during the height of the Civil War, President Lincoln encouraged General William Sherman to allow soldiers in the field to return to Indiana to vote." What was Lincoln's primary motivation, professor asks? He wanted to make sure that the government of Indiana remained in the hands of republican loyalists, who would continue the war until victory.

Lincoln's request risked undercutting the military effort by depleting the ranks. Moreover, during this time, soldiers from the remaining states faced greater risks than did the returning pushers (ph). The professor continues, "Lincoln had dueling motives. Privately, he sought to secure victory for his party. But the president, as a president and as a party leader and commander in chief, made a decision with life or death consequences."

Professor Blackman drew the following relevant conclusion from this and other historic events. He said politicians routinely promote their understanding of the general welfare while in the back of their minds considering how these actions will affect their popularity. Often the two concepts overlap. What's good for the country is good for the official's reelection. All politicians, he said, understand that dynamic.

Like all human beings, presidents and other politicians persuade themselves that their actions, seen by their opponents, is self- serving, are primarily in the national interest. In order to conclude that such mixed motive actions constituted abuse of power, opponents must psychoanalyze the president and attribute to him a singular self- serving motive. Such a subjective probing of motives cannot be the legal basis for a serious accusation of abuse of power that could result in the removal of an elected president.

Yet, this is precisely what the managers are claiming. Here's what they say. "Whether the president's real reason, the ones actually in his mind, are at the time legitimate." What a standard. What was in the president's mind, actually in his mind? What was the real reason? Would you want your actions to be probed for what was the real reason why you acted, even if a president were -- and it clearly shows, in my mind, that the framers could not have intended this psychoanalytic approach to presidential motives to determine the distinction between what is impeachable and what is not.


And here I come to a relevant and contemporaneous issue. Even if a president, any president, were to demand a quid pro quo as a condition to sending aid to a foreign country, obviously a highly disputed matter in this case, that would not by itself constitute an abuse of power. Consider the following hypothetical case that is in our news today as the Israeli prime minister comes to the United States for meetings.

Let's assume a Democratic president tells Israel that foreign aid authorized by Congress will not be sent or an Oval Office meeting will not be scheduled unless the Israelis stop building settlements, quid pro quo. I might disapprove of such a quid pro quo demand on policy grounds, but it would not constitute an abuse of power. Quid pro quo alone is not a basis for abuse of power. Its part of the way foreign policy has been operated by presidents since the beginning of time.

The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the president was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase abuse of power as a constitutional permissible criteria for the removal of a president.

Now, it follows, it follows from this that if a president, any president were to have done what "The Times" reported about the content of the Bolton manuscript, that would not constitute an impeachable offense. Let me repeat, nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power or an impeachable offense. That is clear from the history. That is clear from the language of the constitution.

You cannot turn conduct that is not impeachable into impeachable conduct simply by using words like quid pro quo and personal benefit. It is inconceivable that the framers would have intended so politically loaded and promiscuously deployed a term as abuse of power to be weaponized as a tool of impeachment. It is precisely the kind of vague, open-ended and subjective term that the framers feared and rejected.

Consider the term maladministration. I want to get back to that term, because it's the term that was explicitly rejected by the framers. You'll recall it was raised and then Madison objected to it. It was then withdrawn and it is not part of the criteria. We all agree that maladministration is not a ground for impeachment. If the House were to impeach on maladministration, it would be placing itself above the law. There's no doubt about that, because the framers explicitly rejected to maladministration.

Now, what is maladministration? It's comparable in many ways to the abuse of power. Maladministration has been defined to include abuse, corruption, misrule, dishonesty, misuse of office and misbehavior. Professor Bowie in his article in today's "New York Times" equates abuse of power with "misconduct in office," misconduct in office, thus supporting the view that when the framers rejected maladministration, they also rejected abuse of power as a criteria for impeachment.

Blackstone denominated maladministration as a high misdemeanor. That is punishable by the method of parliamentary impeachment where in such penalty showed of death are inflicted. He included among those, imprisonment. In other words, you could be imprisoned for maladministration.

Despite this British history, Madison insisted that it be rejected as a constitutional criteria for impeachment because, and I quote again, "so vague a term will be equivalent to tenure during the pleasure of the Senate." And it was explicitly rejected and withdrawn by its sponsor. This important episode in our constitutional history supports the conclusion that the framers did not accept whole hog the British approach to impeachment as some have mistakenly argued. Specifically, they rejected vague and open-ended criteria, even those carrying punishment of imprisonment in Britain because they did not want to turn our new republic into a parliamentary style democracy in which the chief executive can be removed by office simply by a vote of non- confidence. That's what they didn't want.


Sure, nobody was above the law but they created a law. They created a law by which Congress could impeach and they did not want to expand that law to include all the criteria that permitted impeachment in Great Britain. The framers would never have included and did not include abuse of power as an enumerated and defined criteria for impeachment. By expressly rejecting maladministration, they implicitly rejected abuse.

Know the framers have included obstruction of Congress as among the enumerated and defined criteria. A, too, vague, indefinable, especially in a constitutional system in which according to Hamilton in Federalist 78, the legislative body is not themselves the constitutional judge of their own powers. And the construction they put on them is not conclusive upon other departments.

Instead he said, the courts were designed as an intermediate body between the people, as declared in the constitution, and the legislator in order to keep the ladder within the limits assign to their authority. Under our system of separation of powers and checks and balance, it cannot be an obstruction of justice and some other lawyers have made this argument today more thoroughly for a president to demand judicial review of legislative subpoenas before they are complied with.

The legislature is not the constitutional judge of its own powers, including the power to issue subpoenas. The courts were designated to resolve disputes between the executive and legislative branches and it cannot be an obstruction of Congress to invoke the constitutional power of the courts to do so.

By that very nature, words like abuse of power and obstruction of Congress are standardless. It's impossible to put standards into words like that. Both are subjective matters of degree and amenable to varying partisan interpretations. It's impossible to know in advance whether a given action will subsequently be deemed to be on one side of the other of the line.

Indeed, the same action with the same state of mind can be deemed abusive or obstructive when done by one person but not when done by another. That is the essence of what the rule of law is not when you have a criteria that can be applied to one person in one way and another person in another way and they both fit within the terms abuse of power.

A few examples will illustrate the dangers of standardless impeachment criteria. My friend and colleague, Professor Noah Feldman, has argued that a tweet containing what he believed was false information could "get the current president impeached if it is part of a broader course of conduct," a tweet.

Professor Allan Lichtman has argued that the president could be impeached based on his climate change policy, which he regards as a crime against humanity. I have to tell you, I disagree with our President's climate change policy, as I do with many of his other policies, but that's not a criteria for impeachment. That's a criteria for deciding who you're going to vote for.

If you don't like a president's policies in climate change, vote for the other candidate. Find a candidate who has better policies on climate change. If you don't like the President's tweets, find somebody who doesn't tweet. That would be easy. But don't allow your subjective judgments to determine what is and is not an impeachable offense.

Professor Tribe, as I mentioned, argue it under the criteria of abuse of power, President Ronald Reagan should have been impeached. Would any American today accept the legal system in which prosecutors could charge a citizen with abuse of conduct? Could you imagine a crime abuse of conduct?

Fortunately, we have constitutional protections against a statute that "either forbids or requires the doing of an act in term so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application." Very difficult to imagine criteria that fit this description of what the Supreme Court have said violates the first essentials of due process more closely than abuse of power and obstruction of Congress.

Another constitutional rule of instruction is that when words can be interpreted in an unconstitutionally vague manner or in a constitutionally precise manner, the latter must be chosen. You're entitled to use that rule of interpretation as well in deciding whether or not obstruction of Congress or abuse of power can be defined as fitting within the criteria of high crimes and misdemeanors.

For the Senate to remove a duly elected president on vague, non- constitutional grounds such as abuse of power or obstruction of Congress would create a dangerous precedent and we construed in the words of Senator James Grimes into approval of impeachment as part of future political machinery.


This is a realistic threat to all future presidents who serve with opposing legislative majorities that could easily concoct vague charges of abuse or obstruction. The fact that a long list of presidents that were accused of abuse of power were not impeached demonstrates how selectively this term has and can be use in the context of impeachment.

I'm sorry, House managers, you just picked the wrong criteria. You picked the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents. The idea of abuse of power and obstruction of Congress is so far from what the framers had in mind that they so clearly violate the constitution and would place Congress above the law.

Now, in order these vague, open-ended and unconstitutional articles of impeachment that were charged here, they're not saved by the inclusion of these articles of somewhat more specific but still non-criminal type conduct. The specifications of themselves vague, open-ended and do not charge impeachable offenses. They include such accusations as compromising national security, abusing the power of the presidency, violating his oath of office.

In any event, it's the actual articles that charge abuse of power and obstruction of justice, neither of which is in the constitution. It's the actual articles on which you must all vote, not on the more specific list of means included in the text of the article. An analogy to a criminal indictment might be helpful.

If a defendant were accused of dishonesty, committing the crime of dishonesty, it wouldn't matter that the indictment listed as well the means toward dishonesty a variety of far more specific potential offenses. Dishonesty is simply not a crime. It's too broad a concept. It's not in the statutes. It's not a crime. The indictment would be dismissed, because dishonesty is a sin and not a crime, even if the indictment included a long list of more specific acts of dishonesty.

Nor can impeachment be based on a bunching together of non-impeachable sins, none of which standing alone meet the constitutional criteria. Only if at least one constitutionally authorized offense is proved can the Senate then consider other conduct in deciding the discretionary issue of whether removal is warranted. In other words, your jurisdiction is based on commission of an impeachable offense.

Once that jurisdictional element is satisfied, you have broad discretion to determine whether removal is warranted and you consider a wide array of conduct criminal and non-criminal. But you have no jurisdiction to remove unless there's at least one impeachable offense within the meaning of high crimes and misdemeanors.

In the three days of argument, the House managers tossed around words even vaguer and more open ended than abuse and obstruction to justify their case for removal. It's included trust, truth, honesty and finally right. These aspirational words of virtue are really important, but they demonstrate the failure of the managers to distinguish alleged political sins from constitutionally impeachable offenses.

We all want our presidents and other public officials to live up to the highest standards set by Washington and Lincoln, though both of them were accused of abuse of power by their political opponents. The framers could have demanded that all presidents must meet Congressman Schiff's standards of being honest, trustworthy, virtuous and right in order to complete their terms, but they didn't, because they understand human fallibility. As Madison put it, if men were angels, no government would be necessary. And then speaking of presidents and other public officials, if angels were to govern men, neither internal nor external controls on government would be necessary.

The framers understood that if they set the criteria for impeachment too low, few presidents would serve their terms. Instead, their tenure would be at the pleasure of the legislature as it was and still is in Britain. So they set the standards and the criteria high, requiring not sinful behavior, not dishonesty, distrust or dishonor but treason, bribery or other high crimes and misdemeanors.


I end this presentation today with a nonpartisan plea for fair consideration of my arguments and those made by counsel and managers on both sides. I willingly acknowledge that that the academic consensus is that criminal conduct is not required for impeachment and that abuse of power and obstruction of Congress are sufficient. I have read and respectfully considered the academic work of my many colleagues who disagreed with my view and the few who accept it.

I do my own research and I do my own thinking and I have never bowed to the majority on intellectual or scholarly matters. What concerns me is that during this impeachment proceeding there have been few attempts to respond to my arguments and other peoples arguments opposed to the impeachment of this President.

Instead of answering my arguments and those of Justice Curtis and Professor Bowie and others on their merits and possible demerits they have simply been rejected with negative epithets. I urge the senators to ignore these epithets and to consider the arguments and counter arguments on their merits, especially those directed against the unconstitutional vagueness of abuse of power and obstruction of Congress.

I now offer a criteria for evaluating conflicting arguments. The criteria that I offer, I have long called the shoe on the other foot test. It is a colloquial variation of the test proposed by the great legal and political thinker and my former colleague, John Rohls. It is in its statement, but difficult in its application.

As a thought (ph) experiment, I respectfully urge each of you to imagine that the person being impeached were of the opposite party of the current president, but that in every other respect the facts were the same.

I have applied this test to the constitutional arguments I am offering today. I would be making the same constitutional arguments in opposition to the impeachment on these two grounds regardless of whether I voted for or against the president and regardless of whether I agreed or disagreed with his or her policies. Those of you who know me know that that is the absolute truth.

I am nonpartisan in my application of the constitution and the same be said of all of my colleagues who support this impeachment, especially those who oppose the impeachment of President Bill Clinton.

I first proposed the shoe test 20 years ago in evaluating the Supreme Court's decision in Bush versus Gore asking the justices to consider how they would have voted, had it been candidate Bush rather than Gore who had several hundred votes behind and seeking a recount. In other words, that was on the other side of that issue. I thought the Supreme Court in that case favored the Republicans over the Democrats and I asked them to apply the shoe on the other foot test.

I now respectfully ask this distinguished chamber to consider that heuristic test in evaluating the arguments you have heard in this historic chamber. It is an important test, because how you vote on this case will serve as a precedent to how other senators of different parties, different backgrounds and different perspectives vote in future cases.

Allowing a duly elected president to be removed on the basis of the standardless, subjective ever changing criteria, abuse of power and obstruction of Congress risks being construed in the words of Senator Grimes, a Republican senator from Iowa who voted against impeaching President Andrew Johnson into approval of impeachments as parts of future political machinery.

As I begin, I will close. I am here today because I love my country. I love the country that welcomed my grandparents and made them into great patriots and supporters of the freest and most wonderful country in the history of the world. I love our constitution, the greatest and most enduring document in the history of human kind.

I respectfully urge you not to let your feelings about one man strong as they may be to establish a precedent that would undo the work of our founders, injure the constitutional future of our children and cause irreparable damage to the delicate balance of our system of separation of powers and checks and balances.

As Justice Curtis said during the trial of Andrew Johnson, a greater principle is at stake than the fate of any particular president. The fate of future presidents, of different parties and policies is also at stake as is the fate of our constitutional system. The passions and fears of the moment must not blind us to our past and to our future.


Hamilton predicted that impeachment would agitate the passions of the whole community and enlists all of their animosities, partialities, influence and interest on one or the other. The Senate, the Senate was established as a wise and mature check on the passions of the moment with "a deep responsibility to future times."

I respectfully urge the distinguished members of this great body to think beyond the emotions of the day and to vote against impeaching on the unconstitutional articles now before you. To remove a duly elected president and to prevent the voters from deciding his fate on the basis of these articles would neither do justice to this president nor to our enduring constitution. There is no conflict here. Impeaching would deny both justice to an individual and justice to our constitution. I thank you for your close attention. It has been a great honor for me to address this distinguished matter on this body on this important matter. Thank you so much for your attention.

UNIDENTIFIED MALE: The majority leader is recognized. I'm sorry, are you complete? No. Mr. Cipollone?

PAT CIPOLLONE, WHITE HOUSE COUNSEL: Thank you, Mr. Chief Justice, Majority Leader McConnell, Democratic Leader Schumer, senators, don't worry, this won't take very long. We're going to stop for the day and we'll continue with our presentations tomorrow.

But I just had three observations that I wanted to briefly make for you. First of all, thank you very much Professor Dershowitz and all the presenters from our side today. I was sitting here listening to Professor Dershowitz, and believe it or not my mind went back to law school.

And I began thinking, how would this impeachment look as a law school hypothetical question on an exam? How would we answer that question? And I found myself thinking, maybe that's a good way to think about it.

The question would go something like this. Imagine you are a United States senator and you are sitting in an impeachment trial. The articles of impeachment before you had been passed on a purely partisan basis for the first time in history. In fact, there was bipartisan opposition to the articles of impeachment. They had been trying to impeach the President from the moment of his inauguration for no reason, just because he won.

The articles before you do not allege a crime or any -- or even any violation of the civil law. One article alleges obstruction of Congress simply for exercising long-standing constitutional rights that every president has exercised. The president was given no rights in the House of Representatives. The Judiciary Committee conducted only two days of hearings. You are sitting through your sixth day of trial.

The House is demanding witnesses from you that they refused to seek themselves. When confronted with expedited court proceedings regarding subpoenas they had issued, they actually withdrew those subpoenas. They are now criticizing you in strong accusatory language if you don't capitulate to their unreasonable demands and sit in your seats for months.

An election is only months away, and for the first time in history they are asking you to remove a president from the ballot. They are asking you to do something that violates all past historical precedents that you have studied in this class, and principles of democracy, and take the choice away from the American people. It would tear apart the country for generations and change our constitutional system forever. Question, what should you do? Your first thought might be, that's not a realistic hypothetical. That could never happen in America. But then you would be happy because you'd have an easy answer and you can be done with your law school exam and it would be you immediately reject the articles of impeachment. Bonus question, should your answer depend on your political party? Answer, no.

My second observation is that I actually think it's very instructive to watch the old videos from the last time this happened, when many of you were still making so eloquently, more eloquently than we are the points that we are making about the law and precedent. But that's not playing a game of gotcha. That's paying you a compliment. You were right about those principles. You were right about those principles. And if you won't listen to me, I would urge you to listen to your younger selves. You were right.