Defending the Constitution: Alan Dershowitz's Senate Argument Against Impeachment

By Alan Dershowitz

“Maybe the question isn’t what happened to Alan Dershowitz. Maybe it’s what happened to everyone else.”—Politico

In Defending the Constitution, Alan Dershowitz—New York Times bestselling author and one of America’s most respected legal scholars—makes an impassioned constitutional argument against the impeachment of President Donald Trump, just as he delivered it to the United States Senate.

Alan Dershowitz has been called “one of the most prominent and consistent defenders of civil liberties in America” by Politico and “the nation’s most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights” by Newsweek. Yet he has come under intense criticism fire for applying those same principles, and his famed “shoe‑on‑the‑other‑foot test,” to Donald Trump, especially after arguing on the president’s behalf before the U.S. Senate as it deliberated impeachment.

Defending the Constitution seeks to refocus the debate over impeachment to the same standard that Dershowitz has upheld for decades: the law of the United States of America, as established by the Constitution. Citing legal examples from a long lineage of distinguished judges and attorneys, and examining the impeachment language in the Constitution itself, Dershowitz proves—first to the U.S. Senate, and now to readers everywhere—that President Trump should not have been impeached, and certainly should not be removed, for causes that do not meet the standards laid out by the founding fathers.

This book is Alan Dershowitz’s argument for a return to nonpartisan judgment based on the Constitution, for a preservation of the separation of powers and the checks and balances that make American government great. It is essential reading for anyone interested in or concerned about the impeachment of President Trump, and for everyone who cares about the future of U.S. government and society.
 

• Language: English
• Publisher: Hot Books
• Release date: Feb 6, 2020
• ISBN: 9781510761810

Alan Dershowitz

ALAN DERSHOWITZ is considered one of America’s preeminent civil liberties lawyers. Until his retirement in December 2013, Dershowitz was the Felix Frankfurter Professor of Law at Harvard Law School. He has published over one thousand articles in magazines, newspapers, journals, and blogs, and is the author of thirty fiction and non-fiction books.

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Copyright © 2020 by Alan Dershowitz

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Library of Congress Cataloging-in-Publication Data is available on file.

ISBN: 978-1-5107-6180-3

eBook: 978-1-5107-6181-0

Cover design by Brian Peterson

Printed in the United States of America

To my wonderful wife Carolyn, whom I love dearly, and who has supported and loved me despite disagreeing with some of my positions and enduring some of the repercussions.

TABLE OF CONTENTS

Introduction: President Trump Asks Me to Join His Impeachment Legal Team

Defending the Constitution: My Senate Argument Against Impeachment

U.S. Senate Question and Answer Transcript

Op-ed, The Hill, January 30th, 2020: Dershowitz: I Never Said President Could Do Anything to Get Reelected

Epilogue: The Dershowitz Doctrine: The Danger of Demonization by Distortion

Appendix: The Constitution of the United States

Acknowledgments

INTRODUCTION: PRESIDENT TRUMP ASKS ME TO JOIN HIS IMPEACHMENT LEGAL TEAM

In the weeks leading up to the impeachment vote in the House of Representatives—a partisan vote whose outcome was predetermined by the large Democratic majority—members of the president’s legal team reached out to me inquiring whether I would be willing to join them in arguing against his removal by the Senate. As a liberal Democrat who voted for Hillary Clinton, I felt somewhat conflicted emotionally. I was also feeling pushback from family members, especially my wife, Carolyn, who wanted me to maintain my independence and nonpartisan neutrality. I told the president’s lawyers that I would not join the legal team as a full-fledged member involved in tactical, strategic, or factual issues, but I would consider playing a limited role as a constitutional advocate—a role I’ve played in other cases. I would be defending the constitution and the presidency, rather than any particular individual. As one lawyer of President Andrew Johnson put it at his Senate removal trial: I came to the defense table not as a partisan or sympathizer but to defend the Constitution. Or as another put it: A greater principle is at stake than the fate of any particular individual.

I decided that if I were to agree to accept the limited role of presenting a constitutional argument against the removal of President Trump, I would begin by quoting these distinguished 19th-century lawyers.

My wife pointed out—quite correctly—that no matter how limited my role might be, I would be seen as an advocate for President Trump, thus compromising my neutrality, rather than for the Constitution. I knew she was probably right, so I did not immediately agree to play any role in the Senate trial.

While my wife and I were considering the options, we were invited to join a friend and his family for Christmas Eve dinner. We were originally going to have dinner in Miami Beach—where we spend the winter—on the day after Christmas, but we had to change our plans and go to New York for a funeral right after the holiday, so we moved our dinner up. His family had planned their event at the Mar-a-Lago Hotel in Palm Beach—where they were long-time members—so we drove up there to join them. We sat at a far corner of the massive dining room and were finishing our appetizers when President Trump and his family entered the other side of the room, a considerable distance away. When we accepted the dinner invitation at Mar-a-Lago, we knew there was a possibility the president would be there, but we did not expect to meet him in such a large room with so many people. But, as fate would have it, when I got in the buffet line for the main course, he got behind me. I was surprised that the president was on the line instead of being served at his table. We said hello and I politely offered him my empty plate, which he politely declined. Then he said, So, are you going to be my lawyer in the Senate. Everyone wants the job, but you’re my first choice. I told him that I was considering it, but that my wife was opposed to me doing it, and he replied, Bring her over and let me talk to her.

I went back across the large hall and found Carolyn eating her main course at our table. The President wants to talk to you.

About that? she replied.

Yes, about that.

Carolyn and I walked across the room and approached the president at his table, where he was finishing his meal. I told him we would wait until he finished, but he got up and started talking to Carolyn. He asked her why she was reluctant to have me become his lawyer. She told him that she wanted me to maintain my independence and neutrality. He said that he thought she had a good point, but that