The Megyn Kelly Show - Arguing Impeachment, with Legal Titans Alan Dershowitz and Laurence Tribe | Ep. 62

Episode Date: February 10, 2021

Megyn Kelly is joined by two legal titans, Alan Dershowitz, Professor Emeritus at Harvard Law School, and Laurence Tribe, Professor of Constitutional Law Emeritus at Harvard Law School, to talk about all the angles to Trump impeachment #2. They discuss and debate whether it's even legal to impeach a president who is no longer in office, whether Trump has a First Amendment defense, whether Trump can be found guilty of inciting an insurrection, whether he could be charged with dereliction of duty, the push to take Harvard degrees away and disbar Senators Cruz and Hawley, and more.Follow The Megyn Kelly Show on all social platforms:Twitter: http://Twitter.com/MegynKellyShowInstagram: http://Instagram.com/MegynKellyShowFacebook: http://Facebook.com/MegynKellyShowFind out more information at:https://www.devilmaycaremedia.com/megynkellyshow

Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations. Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. Oh, do we have a treat for you today, and one you will not see or hear anywhere else. Two of America's most prominent constitutional and legal scholars, Professor Alan Dershowitz and Professor Lawrence Tribe. I'm psyched for this. These are two brilliant guys. Brilliant. Dershowitz is not a righty. He doesn't really support President Trump, but he argues like he does and really thinks this whole impeachment that we're going through right now is unsound legally. And Tribe feels exactly the opposite. I think politically he is left, but more importantly, he's on the leftist side of this argument as a legal matter. He's even

advising the House Democrats and did on their brief and the proceedings and has some inside information and a heads up on the evidence they're going to present that I found really interesting. So we're going to get into all of that. But just so you know who you're listening to today, OK, we're first going to talk to Lawrence Tribe. He's sort of the prosecution, right? That's the House Democrats are basically the prosecution in the Senate. It's weird. Lawrence Tribe entered Harvard at age 16 in 1958. He graduated summa cum laude with a degree in mathematics four years later. He clerked for the U.S. Supreme Court, goes back to Harvard, gets tenure at age 30. He's taught at Harvard Law since 1968. He's written 115 books and articles, including his treatise, American Constitutional Law,

which has been cited more than any other legal text since 1950. He was part of Al Gore's team in 2000. That one didn't work out particularly well. He's argued in front of the Supreme Court 35 times and really is one of the most respected professors at Harvard. So that's Lawrence Tribe. And you, if you only watch Fox News, you may not know him because he's mostly on MS and CNN, right? Because he's more left-leaning and you know how the cable news wars go, but he's brilliant and you should listen to him and he's going to give you a good overview of what to expect. Then we're going to get to Alan. Alan Dershowitz, you know, he's best known for his work in criminal law, but also constitutional

law. He graduated from Yale Law School in 1962. He clerked for the Supreme Court. Then he went to Harvard Law School to the faculty at age 25. He received tenure at 28. In 2013, he retired. He became emeritus at Harvard, retiring after 50 years. And he has been maybe not as prolific in front of the Supreme Court as Lawrence Tribe, but he has been trying real cases and really dealing with the appellate issues on real cases. Some of the most famous and infamous of our time,

right? Of course, you know, OJ Simpson, Julian Assange, Jeffrey Epstein, Klaus von Bulow, they made a whole movie, Reversal of Fortune about that one. Patty Hearst, I could go on. Last year, he was part of former President Trump's legal team in Trump's first impeachment trial, but he's not helping him in this impeachment trial. But Dershowitz, above all, is a fierce defender of freedom of speech and individual rights. So this is a clash of the titans. And I get to moderate it and you get to be the judge. I'll tell you what my rulings are, but you really get to be the judge. And you, again, will not be hearing this any place else. I want to tell you just an overview before we get to it. Of course, the impeachment trial is now going, right? The House leaders, Representative Jamie Raskin is basically the lead House impeachment attorney,

the prosecutor. They want Trump to testify. He's told him they can pound sand. He doesn't want any part of a proceeding that his team says is unconstitutional. The Senate Democrats, they actually weren't really 100% behind the request to try to get Trump to testify. So I don't think they're going to pursue it more, but we'll see. We're going to see evidence, including some you'll hear about today.

And you're going to hear a lot from the Republicans about how this whole thing is a political stunt and it's improper because Trump is no longer in office. So we're going to get into all of it. The polls, by the way, 50-50 down the middle on whether the American people support conviction. GOP, 86% say no, he shouldn't be convicted. Democrats, 86% say yes, he should be.

Independent split 49-45, yes and no, whether he should be convicted. Overall, it's half, half and half want a conviction versus don't. And that is how we go into this crazy event. The second impeachment trial of a president who's already been removed from office. It doesn't get it weirder than this. Okay. We'll get to our professors in just one second. But first, let's talk about Grove. Grove Collaborative. Are you like me? Do you want to do something good for the environment,

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to use our special code. Go to grove.co slash MK to get this exclusive offer. That's grove.co slash MK. And now Professor Lawrence Tribe. Thank you so much for being here. Thank you, Megan. Okay, so let's start simple. The Republicans are objecting to this whole thing by saying he's out of office. You can't impeach and, quote, remove a president who's already been removed by the people of the United States. So this entire thing is out of order. What's your take on it? Well, my take is that he was impeached by the House of Representatives while he was still president. And the Senate is

not trying to remove him. They know that they can't remove him. He's already removed. What they're trying to do is convict him and disqualify him from holding future office. And that's one of the things the Constitution specifically says you can do. It says that the House has the sole power of impeachment. The House impeached him. No one doubts that that was okay. And then it says the Senate has the sole power to try impeachments. No one doubts that it is about to try an impeachment. That's why of all of the scholars in the country, the overwhelming majority thinks that there is just no basis for the argument that the Senate cannot conduct this trial. And in fact, the Senate has in the past conducted trials of people who were

no longer in office. And that's exactly what's going to happen here. Okay, but let me just stop you there. Because that's as far as I know,, all lower officials, with respect, right? We're not talking about the president. And that's, I think, where they draw the line, because they say, this is different when it's the president. is you can only do this to a president who can be, quote, removed and disqualified. They say those two things are not severable. So once it was no longer possible to remove him, it was no longer possible for you to have a trial where you could potentially disqualify him. What do you think? I think the answer to that is that it doesn't really make sense, because if that were true, then whenever you convict and remove a sitting president, at that point, he's no longer a sitting president. The question at that point before the Senate is,

what shall we do with this ex-president? He's now a private citizen. Should we disqualify him as the Constitution gives us the power to do or not? That is basically a sentencing proceeding. It might take hours. It might take days, it might take weeks. During all of that time, the Senate is engaged in finishing up the trial of an ex-president. That is again why conservative as well as liberal scholars have concluded that there is just no basis for saying that removal and disqualification are inseverable. In fact, a friend of mine, though on the opposite side of me ideologically, Chuck Cooper, who was the head of the Office of Legal Counsel in the Reagan Justice Department, and who is a very esteemed conservative scholar, concluded just yesterday in the Wall Street Journal that even those senators who went along with Rand Paul

in his procedural motion a little while ago, where 44 senators joined him in saying there really shouldn't be a trial at all. He thinks that now that opinion has been expressed across the board, those senators should, and he thinks in some cases will, reconsider. In fact, there is a kind of paradox. If they are right that there is no power on the part of the Senate to conduct this trial, that it's unconstitutional, they should stay home. But they're not going to do that. And the reason they're not going to do that is that all it takes to convict the president is two thirds of the senators who don't stay home. And they certainly don't want that to happen. Finally, there's another paradox, Megan, that intrigues me. The president is trying to have it both ways. He's saying, on the one hand, the evidence is really not very clear that I lost this

election. You want to treat me as the president. He never refers to himself as the former president. He is the 45th president of the United States. So he's basically saying, I'm still president. But on the other hand, because I'm not president, you can't try, convict and disqualify me. Well, which is it? I think both branches of that are wrong. He isn't the president anymore, but he was impeached when he was the president. Though he can't be removed any longer, he can be disqualified. And the framers were particularly concerned. There's plenty of evidence of this in the Constitutional Convention and in the Federalist Papers with tyrannical presidents who, at the very end of their term, would contrive to hold on to power, even if their term was supposed to be over because they lost the

election or because of term limits that we've put into the Constitution. And it's at that very end, during January, which is going to happen every four years, that period between when the Congress counts the electoral votes and the president has to leave office. If during that time the president storms the Capitol, does all kinds of damage in order to stay in power. If there were a kind of January exception during which, unless the Senate can get it together to hold a trial and finish the trial before the end of the term, if at that point, that person cannot be disqualified from holding future office, then a very basic part of the constitutional design is frustrated. So I think for all those reasons, in terms of the purposes of the disqualification power, and in terms of the constitutional text, and in terms of the history, although as you say, we've never done this with a former president before, but

we've done it with former secretaries of war. For all those reasons, I think there just is very little to be said for this proposition that the Senate has no constitutional power to try, convict, and disqualify Donald Trump. Okay. A couple of points in there. It's basically a political process, not a legal one. And so the senators get to decide whether this is proper or not proper. And right now they've decided it's proper, right? The 45 Republicans have said it's not. Five Republicans said we're good. So right now it's happening, right? We should start with that. It's happening. But the Republicans are just sort of holding on to a procedural argument saying, you're out of order. You're out of order, we shouldn't even be here because this is not an appropriate proceeding.

They're likely at the very end, you know, to rely on that to justify their acquittal, because they don't want to prove what he did, right? And they could also potentially, I mean, there's a question being circulated in legal circles right now about whether they could go to a federal district court to say, you know, this whole thing's out of order, we want a ruling saying, but like, that's probably not going to happen. Okay. So couple, another, another point. I think Trump has the argument that he's still president. He can't both be saying he's president and then be saying I wasn't, I've left and can't be removed. I don't buy that one because he's now, he's now accepted that he lost though. He says it was unfair and he

says it was rigged, but I don't think he's still claiming to be president at this hour. But the other thing I want to say is there are legal there are respected legal authorities. I think I read in a piece you wrote that Judge Michael Ludig, you know, former Fourth Circuit Federal Court of Appeals judge, says Trump cannot be removed here. And therefore, right. This is effectively an improper impeachment. He does say that. In fact, he and I respect each other. Each of us thinks the other is a pretty bright fella. And I can't say that no one of any seriousness accepts the other view because Judge Ludig is pretty serious. There are only three people I know, I guess. Well, Judge Ludig is one, there's a professor at Columbia, another, and I forgot who

the third is, out of hundreds who take that view. And I know it's not a matter of nose counting, but all I can say is I think this is the way I've read the Constitution for years. It's the way other people have read it. I think it's the right reading. And in any case, as you say, it's a political question and a majority of the Senate, which has the say here, the final say is going to say that it Dershowitz in a bit. And his point on this point, I want to sort of preemptively get this to you, is he says, look, in some countries, defeated former presidents and prime ministers are routinely prosecuted. We go after them a lot. And he says, our countries really live more in accordance with President Lincoln's message after the Civil War, with malice toward none, with charity for all, with firmness in the right as God gives

us to see the right. Let us strive on to finish the work we are in to bind up the nation's wounds that his argument is we're just not the country that goes after former presidents. They lose, they move on. If they've committed a crime, they could get prosecuted. But in general, we let it go. And this is sort of a dangerous precedent to start, whether it be a president or lower officials like Hillary Clinton or Nancy Pelosi. Who else are we going to start to say, you know, Barack Obama, you committed impeachable offense. Let's get you too. You know, he's saying slippery slope. Well, I have a couple of answers to that. I mean, the first is we're not talking about turning back the clock and going after somebody in the distant past. We're talking about somebody who basically ran out the clock,

but was impeached on the 13th of January, just a week after he presided over the storming of the Capitol. And we are simply talking about completing that trial. The other point I'd make is that the real problem with Banana Republics isn't that they finished the trial of someone who basically engaged in an almost successful coup, but that they use the criminal process to do what my friend Alan Dershowitz sometimes says is really scary, and that is to criminalize politics. They use the criminal process to go after former officials. Well, it's exactly what people like Alan and others say we ought to do with respect to this president, namely to hold him accountable. You should not convict and disqualify him in the Senate, but you should use the processes of the Justice Department. They even cite chapter and verse, 18 U.S.C. Section 2383 for insurrection and rebellion, 18 U.S.C. Section 2384, making it a crime to engage in seditious conspiracy.

You know, when he was president, Donald Trump claimed that he was immune because of an Office of Legal Counsel memorandum to prosecution. But no one suggests that he is immune to criminal prosecution now. And indeed, the Constitution says that whoever is put on trial in the Senate, whatever the result, shall be nonetheless liable and subject to indictment, trial, judgment, and punishment according to law afterward. You're saying if the country wanted to punish him criminally, that now we're getting into Banana Republic stuff, but following the Constitution for impeachment and its related

punishments is not banana republic stuff. Well, I think in this case, it wouldn't be banana republic stuff, even if they went after him criminally. But at least at that point, we'll be able to weigh the political pros and cons of turning a page and not holding him criminally accountable. But the point of what's going on now is not to punish him. This isn't vindictive. The point is protective. All of the framers of the Constitution made clear that the purpose of the impeachment power is to get rid of somebody who's really a danger to the country, get rid of them by removing them if they're still in office, or by disqualifying them if they're not. And in fact, in Section 3 of the 14th Amendment, there's a specific provision that says that

anybody who takes an oath to uphold the Constitution and then engages in insurrection or rebellion should never again hold state or federal office. It's not because that's a punishment. It's because it's believed that people like that, people who commit treason, bribery, or other high crimes and misdemeanors, especially when it's in the form of insurrection and rebellion, have shown that they are capable of gathering a mob that, against the will of the majority of the people, might nonetheless hold on to power in a tyrannical way. Can I ask you a question about that? Some people think that that provision is going, if it gets used effectively here against Trump, it's going to be used also to go after people

like Ted Cruz and Josh Hawley, trying to say that they fomented an insurrection and they too should be prohibited from remaining in the public square. I frankly doubt, even though I don't hold any admiration at the moment for Senators Cruz or Hawley, I don't think they were guilty of insurrection or rebellion. I think they took a ride on the incitement of this president and made it more difficult for our government to have a smooth and peaceful transition. But if a procedure were set in place for a federal court to decide who was guilty after taking the oath of office of guilty of insurrection and rebellion. I suppose they could be subjected to that process, but I don't think they would be convicted under it. I know Ted Cruz was your student at Harvard Law School. I don't

know about Holly, but there's a push by some at Harvard to revoke their Harvard degrees because of their recent behavior. Do you support that? No, I do not. I think that kind of cancellation, I mean, I don't want to get into the whole issue of cancel culture, but I don't believe in erasing the past just because you think it didn't quite work out the best way. I'm proud of some of my former students, John Roberts, Barack Obama, Elena Kagan, Jamie Raskin, Adam Schiff. I'm not as proud of Ted Cruz, but I have no desire to go back and take away degrees. I think that's really gross. It's so fun to think of John Roberts or Barack Obama sitting in your class. Could you tell?

I mean, honestly, give me an honest answer. Could you tell these are future stars, like more than the average Harvard Law student? Yeah, the honest answer is I could. I mean, especially with Barack, because he was my research assistant for two years. He was brilliant. It was obvious from his performance in class that John Roberts was brilliant, but he was so modest. And I didn't get to know him as well, but I certainly thought he was a star. I have to say, honestly, I had no idea that Barack Obama would be a politician, though, because he was, you know, he was more like a judge. He would weigh, he would balance on the one hand. On the other hand, I could see him being a professor or a judge. But not until I heard his convention speech in 2004 did I see the potential of national political leadership in him. Now, Elena Kagan is a different case. I thought she was extremely smart. And again, I imagine she might be a judge. And He's like, if you've seen Boss Baby.

Yes, I can just see that. All these babies always have these pink and blue and white blankets, but I suppose we could invent a black blanket for the future judges and they have to have a little miniature gavel. Totally. Well, here on the Upper West Side of Manhattan, you can get a little onesie for your baby daughter with a Ruth Bader Ginsburg doily type, you know, collar. Right. I can imagine. Anyway, so, okay. So thank you for that digression.

But I did wonder. Oh, and one other question on them. What about the push to disbar them? Some want them disbarred. Well, that maybe, maybe. I certainly think that some of the lawyers like Giuliani, who filed things that had absolutely no merit and no factual or legal basis don't have a clear view of whether disbarment is an appropriate thing to do for somebody whose malfeasance or neglect of duty had nothing to do with lawyering as such. So I'm not at all sure about disbarment for guys like Hawley and Cruz. But a question for you on that. It's been, it's been a while since I practiced law, but when I practiced law back in the dark ages,

you would handle unethical filings with, at the federal level, a rule 11 motion, which is basically a request to the judge to sanction this lawyer for filing something that is so unsupported, so baseless that it's laughable. But I mean, the push to disbar somebody, they can always say they had a colorable argument. I mean, that's the save for the most extraordinary. The Ted Cruz job, it's not arguable. Those guys, they're not even close to the line on disbarment. But what about Giuliani? I mean, filing one thing after another that were not even colorable. It's not just a single violation of Rule 11. It's using the legal process in a way that is just fairly perverse. I don't blame Trump himself, really, for wanting to exhaust all possible legal remedies. I do blame him after losing all those cases for sort of twisting the arm of the Georgia Secretary of State

Roethlisberger to quote, find unquote, you know, a bunch of ballots just enough to overcome the gap by which he lost. That was going too far and certainly riling up a mob to sort of go wild and attack the Capitol. That went too far. But the people that I do blame for all those lawsuits are the ones who kept making the same arguments over and over again and being told by one judge after another, including Trump appointees, that these are frivolous arguments. They are not based on fact. The law doesn't back them up. I think Rule 11 is not enough to deal with serial abuse of that kind. Well, and because the thing is, lawyers are officers of the court. They're officers of the court and they have a higher duty when they're in there to the truth, to the process, to the judge,

to not present misinformation. You know, there's all sorts of obligations you have in dealing with a judge that you don't have in dealing with the court of public opinion. And, you know, I too have been, I've been shocked to see the behavior of the lawyers. I have to say, especially Sidney Powell, who I, she's like, I mean, forgive me professor, but she's kind of, she's been kind of a bad-ass appellate lawyer. And that's why when she started doing the dominion stuff, I was like, I'm going to listen. I'm just going to listen and see what she's got because I respect Sidney Powell's lawyering abilities. And then you could sort of see the facade crumble. But were you shocked to see that happen with her?

Yeah, I was very surprised. I mean, I do think she is, as you say, a badass appellate lawyer, a serious, aggressive lawyer. And when she started making some of the claims she did in the cases where she sort of joined arms with Rudy Giuliani, I just my jaw dropped. I just couldn't believe it. Yeah. OK, so let's get down to brass tacks and talk about the charges. So we've talked about whether any charges are appropriate, given the fact he's no longer in office. And now let's talk about what they're actually charging him with and whether it's appropriate. So it's basically one count that they're saying he incited an insurrection, President Trump did. And did his behavior, did his language qualify as

inciting an insurrection? Do you think that he incited, that he incited legally, let's do legally as opposed to just, you know, as a moral matter, under the Supreme Court test of Brandenburg, which controls, you know, the standard on incitement, do you think he legally incited an insurrection? First of all, if this were a criminal trial, and he offered a First Amendment defense saying, I was just advocating the crowd in front of the White House go and do something. I'm unclear what they were supposed to do other than storm the Capitol. But if that were the issue and it was a criminal trial, I think this would probably qualify as incitement. I think it would qualify as incitement in a criminal context, partly because of lots of stuff that the president said

and did in bringing these people to Washington, and then aiming them directly at the Capitol, and making statements like, if you're not really, if you don't fight, you're not going to have a country anymore. When he says in the papers filed by his lawyers that that just meant he was in favor of election reform, I think that doesn't quite meet the laugh test. So he was, I think, stirring up an angry mob, an armed mob, aiming them straight at the Capitol. And if this were a criminal trial, I think the Brandenburg test would be met. But the reason I think there's another equally important, maybe more important point, is that this isn't a criminal trial. This is an impeachment proceeding.

And he's not an ordinary private citizen like the Ku Klux Klan guys who were involved in Brandenburg. He was speaking in front of the White House, in front of the presidential seal as the president of the United States. And the people who stormed the White House one after another were saying, we're here because our president told us to come here. I don't think the president of the United States is in a position to invoke the shield of the free speech clause in quite the same way as an ordinary citizen. The reason I say that- Let me stop you there. Let me stop you there. Let me stop you there just to keep it nice and clean. This is exactly the conversation I want to be having. Dershowitz has been saying all along that this is what he said was speech protected by the first amendment and not just Dershowitz. Jonathan Turley said this too. Others have said that, that what Trump said was speech

protected by the first amendment and you can't impeach a president for constitutionally protected speech. So I get that their defense on the actual speech itself, right under the Brandenburg standard anyway, is yes, he had strong language yes he said you gotta fight yeah there's a lot of politicians say that you gotta show strength you have to be strong politicians say that take our country back with weakness it'll never happen it's not good enough back to professor tribe in just one second but But first, February is American Heart Month, but talking about supporting heart health is not enough. Nearly half of U.S. adults have heart health concerns. I go to the cardiologist every year. I'm way on top of that stuff. And one thing

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Super Beats Heart Chews, you can get a second one for 50% off, 5-0, plus free shipping when you make your purchase at GetSuperBeats.com. That's GetSuperBeats.com. Well, I'm just giving you the other argument, then I'm going to give you back. I've heard it. I've heard it over and over again. And I keep, you know, because my experience as an appellate advocate and as a teacher has always been try to put yourself in the mind of your opponent. What was he urging them to do? This was January 6th, not any old date. This was the date set under the Constitution for the Congress to count the electoral votes. We know that in the context in which the president was speaking, he was expressing anger at the vice president for refusing to exercise the power to throw out the electoral votes. He wanted those electoral votes not to be counted because he didn't want to lose the presidency. He's got an angry mob in front of him. Is he asking them to go and write letters to their congresspeople? Is he asking them to make full costs? Okay, wait, let me ask you about that. Let me challenge you on that. He's asking them to storm the Capitol.

Was the angry mob right in front of him, right? Because I think his lawyers would say he was having a protest like so many others have done before in Washington saying this is baloney. You know, the BS politicians, they're weak. And he's talking to a group of they would describe themselves as patriots waving the flags and supporting President Trump. He's not standing in front of the Capitol as the people are hurling fire extinguishers at police officers and causing real violence. That would be that would be a clear case. But Megan, that's just not really true. He's not in front of the Capitol, but he's a few blocks away. He's looking at a big TV screen. He's looking at a TV screen where he sees these people storming the Capitol. Unlike a private citizen, he would have the power to call them back. Facts, not evidence. Those are facts, not evidence. We don't know that he saw anybody storming the Capitol. You just wait to see what the impeachment managers present. Oh, really? The senators, I think, are going to present a picture, a kind of split screen picture, in which we have evidence that the president was fully aware through electronic media and otherwise of what was

going on at the Capitol. He was not, this is not going on in Afghanistan or Iraq. This is going on within earshot of the president of the United States. He's got- And you're talking about storming. You're talking about storming. You're not like people milling about in front of the Capitol. You're talking about storming. You're talking about storming. You're not like people milling about in front of the Capitol. But even if he was somewhat distant, anyone who thinks that the President of the United States, after we see in graphic detail what that mob was like and how armed it was, was simply engaged in customary political rhetoric, got to be strong, is living on a different planet. I think that's why this trial is going to make a very big difference. I think it's going to be quite devastating for

the country to see what was going on and to see in spellbinding and terrifying detail what we're talking about. We are not talking about an ordinary protest. The actual evidence. No, I got you. I got you. And that's important. I mean, that's why we have trials in criminal matters and here. Look at the evidence. What do they actually have? What do we believe after seeing it with our own eyes? But question for you, you know, the president's team says he also said repeatedly, be peaceful. What we want is a peaceful and patriotic protest. That's number one. And number two, they'll also point out to the fact that there were thousands of people there that day, thousands, a very small faction of them went over and behaved criminally. The vast, vast majority

did not. So does that undermine the claim that he incited a mob? The vast majority of the mob was not incited to do anything of the kind. Not really. There were hundreds of people who stormed the Capitol. This was not anything like a peaceful protest. It seems to me that when you look at the evidence, it will be really quite clear that the president was riling them up to do damaging things. The president could have pulled them back and didn't. This was a dramatic case, not just of dereliction of duty, but almost of desertion. After all, the president is the officer who takes an oath to execute the laws, to make sure that they are executed. I think in this case, the president

was on the wrong side of the law. There's a wonderful passage by Justice Scalia in one case where he says that you can't cheer for the robbers and ride with the cops. This is a lot like, you know, one example that I've given before People talk about yelling fire in a crowded theater This was much more like riling up a mob that then sets fire to the crowded theater When you were the police chief And instead of doing something about it, you pour oil on it And then the fact that you say in the middle of all of this, be peaceful And then later, after you know in the middle of all of this, be peaceful.

And then later, after you know that they have been anything but peaceful, you say, we love you, we're proud of you. It's a lot like the scene in Julius Caesar where he says, I come not to praise Caesar, but to bury him. You know, it's quite easy to use an occasional word saying I'm not saying go and hang Mike Pence, but I really like the design of that of that gallows. It seems to me that taken all in context and trials are all about context and narrative. It will be not at all plausible to say that the president was doing something less than fomenting an insurrection. That is why people who vote to acquit, let me just finish one point, Megan, if I might. That is why I think rather than defending what the president was doing and saying he wasn't really engaged in inciting an insurrection, those who vote to acquit are going to hide behind the

claim, which I think, even though a few very serious people make it, they're going to hide behind the claim that the Senate does not have the power to finish this trial. Oh, yeah, 100%. The Republicans would love to just hang the hat on the procedural ground and not have to defend any of this. Understandably, no one wants to defend this nonsense, right? I mean, why would they? It's tough to defend the actual behavior on that day or Trump's behavior around it. Although I don't agree that legally he reached the standard of incitement, but I'm going to leave that argument to your buddy, Alan, who's up after you. But I do think you've got a good argument on dereliction of duty. I think that's the strongest argument, which is why I was surprised.

It wasn't charged as a count, right? You've got the incitement count in there, but then the dereliction argument is just sort of in the brief as opposed to like a charge that he was derelict in his duty, that it took him hours to put out that video, that it would took him way too long to even tweet about it. And that as commander in chief and head of our armed forces and as our president, he had an obligation to do something to protect the members of Congress and his own vice president who was in there. And he sat and did nothing. And of course, there's going to be reports that not only did he sit and do nothing, but that he was allegedly enthusiastic about it,

that he was enjoying it. I do think, I sympathize with the House of Representatives in deciding to coalesce all of his misconduct in terms of its most serious aggravated climax, and that is that he was inciting an insurrection. The fact that he was derelict in his duty sort of helps set the context, makes the incitement all the more serious, makes the failure to undo what he had already done more dramatic and relevant. But I don't think they had an obligation to have a multiplicity of charges. Can they argue all of that? I mean, could it be the basis for impeachment, even though it's not alleged as a count? Well, it can form part of the

context for the impeachment article. And I do expect the House managers to mention, and not just in passing, the degree to which this president could have mitigated the harm but didn't. Yes, of course. That fact, I think, is part of what makes what he did so much an instance of proving that he is too dangerous to allow back into office. Okay, let's back up from dereliction and go back to the first count, the only count, incitement, and whether he has a defense under the First Amendment. Because he's going to say, first of all, it didn't rise to the level of incitement. It was, fight, be strong. And that's sort of political rhetoric we've heard from a lot of people. And you can't single him out. You know, if you want to start talking about violent political

rhetoric, we're going to have to talk about Maxine Waters. And we're going to have to talk about a lot of Democrats who have said similar stuff. That's going to be what we're going to hear. But I do think it's interesting whether the First Amendment should be the end of these proceedings. That is what Dershowitz says. It seems to be what Jonathan Turley believes, that the First Amendment, that you basically can't have an impeachment based on speech that is constitutionally protected. When the president is forced by the constitution to swear to uphold the constitution, what if he then, having taken the oath, says, oh, by the way, Mr. Chief Justice, my fingers were crossed, and my intention as president is to remain in power no matter what, to reject any possible attempt to remove me and to become a dictator.

All of that is just speech. You think that that would not be a basis for convicting and removing the president? Presidents can't use speech to undo their oath of office. And that's what he does when he urges an angry mob to stop the counting of the electoral votes that are supposed to end his time in office. Okay, but their response is that under your theory, any president could be removed for rhetoric that has the natural tendency to encourage others to riot, right? Like, let's take Maxine Waters. You know, she was like, confront them in the restaurants, go get them. And lo and behold, people did that to Republicans.

And then you had even Kamala Harris saying, the protesters should not let up this past summer as the marches turned violent. Like, again, it's a slippery slope argument. You can't start removing the president or other public officials for rhetoric that you could argue encourage others to riot. Well, first of all, this was not just encouraging. Secondly, whataboutism doesn't really focus on what this guy did wrong.

Thirdly, presidents have unique power. They are the most powerful person on earth. And the fact that we say that a president who has said from the beginning that he will not accept an electoral defeat because it will have to be fake, he knows that he is the winner, and who then does all the stuff this guy did, including trying to get the Georgia officials to flip their votes. You can't really subject that kind of official to the same kind of approach. Maxine Waters and people like her can say whatever they want without doing any significant harm. This guy holds so much power in his hands that when he tells a mob that is

conditioned to believe that the election was stolen, that they have to do something, something strong, something wild to turn it around, is doing a kind of harm that mere rhetoric on the part of people at the extremes of the political spectrum one way or the other couldn't possibly do. And that's why I think we have to focus on what he did, not on some rhetorical flourish on the part of people on the right or the left. Well, I mean, I'm not excusing anything Trump did, but I do not excuse Maxine Waters for saying what she said. And I do think it causes harm and it did cause harm to people. And I think there was Ayanna Pressley, another one who said there needs to be unrest in the streets. And look at all the cops who were killed and hurt. And look at all the people who were killed and hurt over the summer protests. I am not defending anybody who urges violence, period. I think they're all wrong. And one at

a time, we should deal with these things. But right now we have before us the case of Donald John Trump, who engaged in the worst kind of thing that the framers feared, and that is riling up a mob to overcome the rule of law and to completely cancel the effect of a free and fair election, one that was, according to his own Department of Homeland Security, the least fraudulent, the least vulnerable in our history. I think that's so uniquely different that it really makes a mistake to distract attention with these other cases. And I'm not defending any of the excessive rhetoric that might rile people up. Okay. Now, I want to get to, last but not least, whether you think that, because we started,

we end where we started it's a political process not not really a legal one it's not like a criminal trial uh even though it resembles it in some ways um some say it's risky even some democrats say this is going to be risky because it's going to keep trump in the limelight. It's going to enable him to claim vindication when he's acquitted. The boats are not there to convict him. And no matter what your evidence is, they're not going to be there. These guys have already made a political decision. This isn't in their best interest to side against him. I think you'd probably agree with that. So he's going to be acquitted and it's going to lead to his recovery rather than his defeat. This is the concern by people on your side

who don't want to see this whole thing go forward. Well, I have to say that that's not ridiculous. There are reasons to be concerned. In the book that I wrote with Joshua Matz called To End the Presidency, The Power of Impeachment, I did talk about all of the risks of impeaching somebody that you don't think you have the votes to convict. But there are profound risks on the other side as well. A lot of people, I think, quite rightly have said, if this is not a basis for convicting and disqualifying a president, then nothing is. Then we basically are stuck with a system in which no matter what the president does, and go back to the stuff he said at the very beginning, I could shoot someone on Fifth Avenue and I'd get away with it. I don't think we can afford to live with a country that sets that as a precedent.

And it is true that if he is acquitted, a lot of people will say, he will certainly say, look, I'm exonerated. Of course, he claims to be exonerated no matter what happens. It seems to me that what people will say decades hence, what our children and grandchildren will say, if we simply call this off and say, oh, well, you know, he managed to encourage the storming of the Capitol, the killing of police officers, the threatened assassination of the vice president and the speaker of the House. But let's turn the page. Can't we all get along? If that's the message we leave, then I think we have basically left our descendants a government that isn't going to last. You know, democracies don't last

forever. And if this is behavior that we don't condemn in every possible way and do everything we can to prevent its repetition, then we really have thrown in the towel. And I'm not willing to do that despite the risks. And I agree there are risks. Professor Lawrence Tribe, a pleasure getting your point of view, your legal expertise. Please come back anytime. Pleasure talking to you, Megan. Thanks. Up next, the rebuttal from Professor Alan Dershowitz, who is ready to go. This is so great. I'm loving this.

But before we get to him, I want to talk to you about Paint Your Life. This is a great product. I've been talking about this and I mean it, people. Go to PaintYourcom If you are looking for a valentine's day gift for a birthday gift If you feel bad, you haven't given your mom anything nice in a long time You could get a picture of your family your kids and send it on over This is one of those things where you send in your photo and they'll paint it and they'll frame it and they'll send it back To you. So it's like a nicer more elegant thing to have on your wall. Well, I did it right there sponsor I'm, like, let's see. Hopefully it works out. I don't want to mislead anybody. So I got to really hope for the best.

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is going to be on the wrong side of the wokesters? Dolly Parton lent her vocals to a new version of the hit song 9 to 5. Remember that? Working 9 to 5. This was for a commercial for the company Squarespace. And this company helps you create easy to use websites. If you have a dream of doing a different career, you could work on one of these websites to create your new career. And the twist was that this version of the song was about what you can do from five to nine when you work on your side hustle. Get it? Like after your day job new way to make a living gonna change your life do something that gives it meaning with a website

that is worthy of your dreaming well seems like good fun to me but Dolly's words and her going on to sing something about working working working has upset somebody at NBC News.

NBC published a column this week saying that Dolly Parton was playing a rich man's game. Quote, it's a perfect storm of gig economy propaganda, wrote the author Kim Kelly, no relation, who describes herself as a freelance journalist and organizer. She's an organizer. Ms. Kelly says she was disappointed to hear Parton sing about working, working, working. Because apparently having dreams beyond your current occupation and the tenacity to work on them after hours in your free time, it's no longer acceptable. That's somebody else's fault. It's society's fault.

And if you celebrate it, it's your fault. Okay. So I have a message for Ms. Kelly. Get used to being freelance. If that's your attitude about working, working, working, no one's going to hire you full time. And that, folks, is the latest edition of You Can't Say That. Dolly Parton in the crosshairs today. And now another person who will not listen if you tell him you can't say that, Professor Alan Dershowitz.

Let's start with this. Why are you not representing Trump this time when you represented him last time in the first impeachment proceeding? I didn't want to be part of any defense or any legal team that raised questions about the election itself. I do not believe the election was stolen. I do not believe it was fraudulent. And I didn't want to be associated with making that kind of argument. But I'm happy to defend the Constitution, the First Amendment, the impeachment provisions of the Constitution, due process, in the court of public opinion on shows like yours, and let the people hear my

views. Also, this is political theater, and I'm neither a politician nor an actor. And so I see my role more as an educator, somebody who is out there defending the First Amendment. I am not a Trump supporter, but I'm a supporter of the Constitution regardless of who is being impeached, who is being prosecuted. So I'm going to stand up for the Constitution, but I'm not going to be on the Senate this time around. Okay. And just an overview of the lawyers here. So House Representative Jamie Raskin is the lead House impeachment prosecutor. And on the defense side, Trump has gone with Bruce Castor Jr., David Schoen, and Michael T. He was my student. I actually helped represent his father during the Spock case many, many, many years ago during the Vietnam War. I think well of Jamie generally as a congressman and as a person. I fundamentally disagree with the approach

he's taking to this case. I know David Schoen not well, and I don't know any of the other lawyers. But the one point that I think it's important to emphasize is that I hope these lawyers, I hope that Schoen and the other lawyers, will not be intimidated by law professors. A group of law professors issued a letter the other day essentially threatening the Trump lawyers, and I'll read you from what they said. They said any First Amendment defense raised by President Trump's attorneys would be legally frivolous. Now, you're an attorney and you know what legally frivolous means. It means that if you make the argument, you can be

disciplined and even disbarred. It is unethical to make a legally frivolous argument. And yet these 144 law professors issued a statement clearing any First Amendment defense to be legally frivolous. They also said, quote, no reasonable scholar or jurist would offer a First Amendment defense, which sends a message to young professors who don't have tenure or young lawyers who want to get in a teaching position that if they make an argument based on the First Amendment, their peers and hiring committees will regard them as unreasonable, since no reasonable scholar or jurist would make those arguments. That is very frightening and scary, and that's why I'm glad to have an opportunity to defy those 144 professors on your show and make the case for why a First

Amendment defense not only is not frivolous, but must be made. Indeed, it would be irresponsible and unprofessional for lawyers not to make that case, to deny the American people, to deny the Senate the right to hear a strong, ethical, reasonable First Amendment defense for President Trump now, former President Trump, for the speech he made and other statements he made leading up to the impeachment. Okay, so let's go through it point by point. Let's start with the main argument on behalf of the Trump team, which is this is not an appropriate impeachment. The impeachment is supposed to be to remove a president. He's already been removed. And I'll just tell you up front what Lawrence Tribe says about this is he was impeached while he was president. They say there's no statute of limitations. Go back and impeach anyone. You can go back and impeach President Carter, President Clinton.

You can go after Nikki Haley if Nikki Haley emerges as a strong opponent in the potential 2024 election, according to the House managers, I'm not saying Professor Tribe says that, but according to the House managers, there's no statute of limitations. You could impeach her for something she said or did while she was at the United Nations. Look, the best precedent in our history is Aaron Burr. Aaron Burr was the vice president. He ended his term as vice president, and then he went off to the South and fomented an insurrection. Nobody, none of the framers, thought about impeaching him. Even though he was a young man and could have run, he lived many, many more years. Nobody thought about impeaching him. He was out of office. What they did is they prosecuted him. They put him on trial for treason. A great trial. The former Chief Justice John Marshall presided.

Thomas Jefferson's, I think, cousin was one of the prosecuting attorneys. It was a great trial. And he was ultimately acquitted. But nobody thought about putting ex-president Aaron Burr on trial for what would clearly have been impeachable offenses, namely raising an insurrection and committing treason against the United States. Several times they did put former officials on trial, but in every one of those cases they were acquitted. And they were acquitted largely on the ground that senators refused to convict because they didn't believe they had jurisdiction over former officials. So there is no January exception. You could be put on trial. James Madison in Federalist 37 specifically says you can only impeach somebody who is then in office, serving in office. And the idea that you can put somebody on trial afterward, no. The jurisdiction of the Senate ends the day the president leaves office, certainly if he leaves office, because his term was over and the voters voted him out of office.

The idea that you can then put him on trial as a private citizen would be a bill of attainder. Bill of attainder prohibits putting private citizens on trial and punishing them. And disqualification from office has been held by the courts to constitute the kind of punishment that is prohibited by the bill of attainder provision of the Constitution. All right. Don't say bill of attainder anymore. No more bill of attainder. No, but even I get stuck on that one and I'm a lawyer. Let me ask you this. Does it help your argument that the constitution says, okay, if you are going to impeach a president, here's what you need to do. Go get the chief justice because he's got to be the person. He's got to be basically the judge who runs the proceeding when you're impeaching the president, but we're not impeaching the president. And so

now we've got Senator Pat Leahy overseeing that. And like, it doesn't really, to me, that's sort of a stumbling block. It says we're supposed to use the chief justice when it's the president. Well, this is an ex-president. Now we're stuck with, with respect to Senator Leahy, more like a lackey. He's not a judge. He's not the chief justice. What do you make of that? Well, the framers never occurred to them that there would be an ex-president in a trial. So they made no provision for it. And the chief justice was absolutely right to refuse to participate in this unconstitutional proceeding. And so if the framers thought you could put an ex-president on trial, they would have said the chief justice presides. Remember, too, Leahy is presiding by default. The person who's really supposed to preside is the president

of the Senate, which is the vice president of the United States. And so she would be presiding over a trial that might disqualify the person who might run against her in 2024. That's why the chief justice was put in place, because he has no political ambitions. He's not a partisan. He's part of the judiciary. And there was a lot of debate about the chief justice presiding. There was even some consideration about having the trial of impeachment in front of the Supreme Court. And ultimately, the framers in Hamilton and others in Federalist 65 explained why that wouldn't happen. But it never occurred to the framers to put an ex-president in a trial, even though many of the state constitutions at the time

made explicit provisions for putting former officials on trial. But the framers of this constitution didn't include that. And when they used the term disqualification, they didn't say removal or disqualification. They didn't propose disqualification as an alternative to removal. They said removal and disqualification, meaning that you can only disqualify once you've been removed and you cannot be removed if you've been elected out of office. So here's the next question. If they if they go forward with this and I realize they don't have the votes, so they're really, you know, they don't have the votes to convict the guy. But let's say something turns and they they they find them. The only real remedy they have now is the disqualification from running for office again. So if that were to happen, you know, an all out win by the Democrats, if that were to happen, could Trump file an appeal in a federal district court to this whole thing saying, I object to that because this entire impeachment proceeding was improper? He could do several things. One, he could simply

run for office and say, this is all void. It's totally improper. The framers of the Constitution and the Federalist Papers say when the Senate acts unconstitutionally, it's void, not voidable, void. It's just void. So the president could simply say it was theater and I'm running and then somebody else would have to bring an action against him. He'd be the defendant in the lawsuit. Or he could bring a declaratory judgment action in federal district court, ultimately getting to the Supreme Court to see whether or not the courts would declare it invalid. So let's get down to brass tacks and

talk about the standards, what he's actually charged with. As I see it, the first big legal question after you get past, should we all be doing this, is was Trump's speech permissible under the First Amendment? Now, Lawrence Tribe and the House Democrats say, no, it was not permissible under the First Amendment. This was unlawful incitement. You say it was permissible speech. This was not incitement under the Supreme Court case Brandenburg, because Brandenburg says incitement is where you you offer speech that is directed to incite or that produces imminent lawless action and is likely to incite or produce such actions, it has to be close in time. It has to be specific. It has to be pretty much outrageous and be directly linked. Not enough to be cause and fact. It has to be the proximate cause, the very closest cause of what happened next, namely the riot. And I know you say they don't have them. What Tribe says is, all right, it's not about, he's like, I know he said, protest peacefully,

you know, be patriotic. But he basically says you can't window dress up a speech that's full of fight, fight, fight, be strong, we're not going to have a country back on the heels of weeks and months of it's a steal. This is how you know that all the other rhetoric and the knowledge that violent groups might be coming. You can't like you can't window dress it with patriotic march. I agree with that. I think you have to look at the entire speech in context. By the way, CNN and PBS left out the phrase peacefully and patriotically when they showed the speech. But if you look at the whole speech, you look at everything he said from the day of the

election, all of it is constitutionally protected. All of it comes within Brandenburg. Remember Brandenburg context, too. He was the head of the Klan, the Nazi party. He was making a speech surrounded by people with hoods and crosses and guns, and he was calling on them to take revengeance against the senators and to send the Jews back to Israel and the blacks back to Africa, and over and over and over again. And, of course, the Supreme Court unanimously said that that was protected. With all due respect to my colleagues, I have litigated

more First Amendment cases than any of them. I've litigated every major First Amendment case in the last half of the 20th century, from the Pentagon Papers case to the I Am Curious Yellow case, now the WikiLeaks case, the Chicago 7 case, the Bruce Franklin case. I know what the law is on incitement. This doesn't even come close. This is pablum, the speech. Fighting words are common in the Capitol. You hear all the time, confront them, take over the Capitol.

Compare it to what Congresswoman Waters said when she told people, provoke people, get in their face, don't let them eat, don't let them enjoy themselves, tell them they're not welcome, all of that, that's all protected speech. That's all common. You had suffragettes making speeches like that, labor leaders, radicals on the left, And interestingly enough, most oppression has been directed against the left. I grew up during McCarthyism, and I know that these speeches have been common. The Chicago 7, blood in the streets. This is America. We allow people to make those speeches. Thomas Jefferson, on the 25th anniversary of the Declaration, wrote a letter in which he said, you don't go after the speaker, you go after the person who committed the violence. There's no excuse. The people can't

say the president made me do it. And then look at the facts of the case. He spoke to a certain number of people. Only a percentage of them went to the Capitol at all. Most of them didn't. The ones who went to the Capitol, most of them didn't go inside. The ones that went inside, most of them didn't engage in violence. This is not shouting fire. When you shout fire in a crowded theater, everyone leaves. That is not an invitation to think about something. That's a demand to leave. You don't get a third of the people leaving. You don't get people debating whether to go and do it. This was not incitement. He didn't incite. This was an invitation. He said, please go to the Capitol. I urge you to go to the Capitol. Protest strongly. He used fighting words,

very strong words. I have to tell you, I don't want to get personal with Tribe or anybody else, but these 144 people who wrote saying that any First Amendment defense raised by presidential attorneys would be legally frivolous, most of them would not be making this argument if it were not Donald Trump. If this were a left-wing agitator, if this were Bill Kunstler, if this were the Chicago 7, they would be on the other side of this issue. They do not pass the shoe-on-the-other-foot test. They are trying to devise a special First Amendment test for Donald Trump. Look, I'm not a supporter of Donald Trump. I don't vote for Donald Trump. I don't contribute to

his campaigns. I don't support his politics. But I support the First Amendment rights of everyone, Maxine Waters, the Nazi Party, the Klan, anybody to make these kinds of provocative speeches. And I don't want to see the First Amendment watered down in the name of trying to get Donald Trump. Well, and I will say the ACLU is on your side. I mean, the ACLU is not on my side. I wish it were. Wait, I thought they were on your side on this one, on this issue. The ACLU is on my side on whether Brandenburg applies. That's my point. Yeah. No, I know. I know they want him to be impeached and we'll get to that. But the, but the eight, the ACLU agrees with you that this speech was not incitement under Brandenburg. It's not even a close question. This speech and everything that came before it is so within the American tradition. Speeches like this were made in the rut, in the

run-ups to the revolutionary war. It was made after we were established as a country. It was made in the run-up to the Civil War. It was made during Reconstruction. It was made during the McCarthy period, made during the anti-Vietnam, particularly the anti-Vietnam period. It's not even a close question under Brandenburg. And it's a scandal that so many professors, 144 of them, would say that they would construe the Constitution to forbid a normal citizen. We're not talking about special rules for the president from making an agitating, provocative speech. That's un-American. OK, but so here's the here's what was suggested.

And, you know, Tribe has been helping these House Democrats. He said, you wait, wait until we see the video. And so let's assume for purposes of our discussion right now, they produce a video of Trump, you know, a couple blocks from the Capitol speaking to the crowd, watching the mob storm, not just circulate out in front, storm the Capitol. And then he says, we're going to go. We have to fight. Don't be weak. We have to be strong. Then do you think they've got him? No, I don't think so. First of all, you have to ask yourself what the relationship is. He's seeing them. Are they the people storming the Capitol, listening to him? Or is he talking to the people who didn't go to the Capitol?

The only way you get incitement is he has to be literally at the Capitol and he has to be saying to them, break into the Capitol, steal the computers, hit people. There was a case like that. I defended the person. His name was Bruce Franklin. He was a professor at Stanford Law University. I was a visiting professor there that year. And he got up and he made a speech during the Vietnam War in which he said to bunches of students and faculty, you see the computation center over there? It's part of the war effort. I think it would be a good idea for you to go and take over the computation center. Immediately, they went and took over the computation center, and they destroyed it, and they trashed it, and they caused tremendous amount of property damage. He was then brought up under charges at the university, private university,

and his tenure was stripped. Who do you think defended him? The American Civil Liberties Union. Who did they ask to make his defense? Me. I made his defense with the support of the American Civil Liberties Union. And I have to tell you, if Larry Tribe had been at Stanford, he would have been defending Bruce Franklin. to incitement than any hypothetical or case in which the president is standing by and watching the mob and not doing anything about it and continuing to make his speech. That doesn't cross the line to incitement. So you won that case? Well, no, it's interesting enough. The ACLU was on our side. They fired him because they were a private university. But what was the ruling on speech? Did they find that it was incitement under Brandenburg?

The committee at Stanford didn't say, said they didn't have to make a finding because they're a private university and they're not bound by Brandenburg and they're not bound by the United States constitution. Let's talk about dereliction of duty, because I think this is a stronger case for them. I know Andy McCarthy thinks this is a stronger case for them. But they didn't plead it. It's not a count against him. It's more, it shows up in their brief as color, you know, that he sat by, he didn't take action, he turned a deaf ear. Andy McCarthy's basically saying, look, when the seat of government is stormed and lives are in jeopardy, including cops and members of Congress and Mike Pence, you can't sit back. That's a dereliction of duty and that's a good basis for impeachment. But he's raised, and I can see his point, they didn't plead it. And there's a question about whether they can really use it. What do you think? Well, there's no question about them using it. They did the same thing in the first impeachment. Whoever prepared these impeachments

really gets a C minus in pleading. The first impeachments, they could have charged extortion, bribery. Those are impeachable offenses. They didn't. They charged obstruction of Congress and abuse of power, which are not impeachable offenses. The same thing was true here. They charged something, but it's constitutionally protected. Had they charged dereliction of duty, failure to be sure that the laws be faithfully executed, it would have been an interesting case. I don't think that would be impeachable because it's not treason, bribery, or other crimes and misdemeanors. And as you know, I take a very strong position, as a position taken by most scholars and judges throughout the 19th century,

that you need criminal-type behavior. Curtis made that argument, others made that argument, you need criminal-type behavior. Recently, scholars have looked the other way and say you don't need criminal- type behavior. So I think the case would have been decided on that ground. It would be a very, very strong case if you don't need criminal type behavior. But if you need criminal type behavior, then failure to perform duty, failure to provide the oath of office, failure to do all these other things would not constitute treason, bribery, other high crimes and misdemeanors. But it would have been a stronger case, I think, because it wouldn't be constitutionally protected. Here's my next question. If it's not illegal incitement, okay, because I actually agree with you. If I get to be the judge, I rule in your favor on this. It doesn't pass the Brandenburg standard for incitement, and therefore the speech itself was not unlawful and it is protected by the First Amendment. But the question is, is that the end of the issue?

And I know you say you cannot impeach a president for constitutionally protected speech, period. But I think the weight of authority is against you on that and that abuses of power that are they're not unlawful speech, but they're abuses of power can be the proper basis of an impeachment. Why do you disagree with that? Well, first of all, that was what was charged in the first impeachment and they lost. Abuse of power is not, is not the constitutionally permissible basis for impeachment. 44 of our presidents have been charged with abuse of power. Abraham Lincoln, Franklin Delano Roosevelt. In my impeachment speech on the Senate, I listed all of the 44 presidents who have been accused of abuse of power. Barack Obama was accused of abuse of power. Virtually every president has been

accused of that. That cannot be the basis for impeachment. Otherwise, we'd have the British system. I think the argument that's made is a little different. The argument that has been made is, look, a cabinet member can be fired by the president for making a speech. And that's true because the president has total authority to fire a cabinet member for no reason whatsoever. Other people can be fired if they, you know, members of the Nazi party or make racist speeches. Impeachment is different. It's not an employment relation. It's not being fired. That's the British system. The British system is you can fire a prime minister if he makes a speech you don't like. The American system requires treason, bribery, other high crimes and misdemeanors. It's not like firing. And if it requires those four- So you think it has to be an actual crime, like a felony or a misdemeanor? No. Criminal type behavior. For example, if it's a crime committed in Europe, it might not have jurisdiction in the United States, but it's criminal type behavior. Because think of the words treason, bribery, or other, other

high crimes and misdemeanors. The 19th century scholars all assume that other high crimes and misdemeanors refers to things like treason and bribery. In other words, criminal type behavior, extortion. Okay, let me just throw this one. Let me throw this at you because you're quoting the Federalist Papers a lot. Here's Alexander Hamilton, Federalist No. 65. Impeachment exists for offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. That's exactly right. Abuse of public trust. Why is that? That's what they're saying he did.

Here's what Hamilton was saying. Remember Hamilton's own experience. He committed a felony while in office, while he was Secretary of the Treasury. He committed adultery with a married woman, and then he paid extortion. And he admitted it was a crime, but he said it wasn't a high crime. And what Hamilton was saying in 65 is in addition to it being a crime, it has to be a crime that violates the public trust. Therefore, it's political in nature. It can't be a Bill Clinton type crime, and it can't be an Alexander Hamilton type crime. It has to be a high crime. And so if you read 65, and I made this point on my speech in the Senate, that Hamilton was actually constraining, narrowing the criteria, not broadening it, saying a crime is not enough.

It has to be a crime that's political in nature, that violates the public trust, but it's not enough if it's not a crime at all. So I don't think Hamilton supports that view. I think he undercuts that view. Let me give you one more because I know you love Madison. And this is the other thing that gets thrown in on this side. That Madison at the constitutional convention was talking about cases that would require presidential remover and said, said some provisions should be made for defending the community against the incapacity, negligence, or perfidy, meaning lying, of the chief magistrate. and that he didn't believe elections every four years was going to be a strong enough safeguard, that he was worried a

president might lose his capacity. Okay, you could use 25th Amendment on that, or might pervert his administration into a scheme of peculation, meaning kind of embezzlement, or oppression. And then the follow-up was that his pal from Virginia, Edmund Randolph, supported him in that view because, and I quote, the executive will have great opportunities of abusing his power and without impeachment, the people would have to resort to tumults and insurrections to turn out such a president. OK, go. This is so fun. I'm having such a good time. I addressed this directly in my speech in the Senate last year. This was, there was a two parts debate.

First part of the debate was, do we need an impeachment provision at all? The second part is, if we do, what should be the criteria? All of these conversations occurred in the first part of the debate. These were arguments about why you need, why you need to have impeachment. And for example, one of the things they talked about a lot was incapacitation. You mentioned the 25th Amendment. Incapacitation. You need impeachment. What if a president gets incapacitated? So that view prevails. Yes, we need impeachment. Then we turn to the more difficult issue. What are the criteria? And the criteria they decided on were

treason, bribery, other high crimes and misdemeanors, not maladministration and not incapacitation, which is why for 150 years we had a gap in our Constitution. And the gap showed with Woodrow Wilson. He was incapacitated and he couldn't be removed because we didn't have the 25th Amendment. We filled that gap with the 25 25th amendment but the framers made a sharp distinction between why we need impeachment we need impeachment for peculation for abuse of power all of that that's why we need impeachment now let's decide what the criteria are oh different kind of issue let's make it very narrow let's avoid the english experience let's make impeachment very difficult to apply. criteria should be. We rejected the criteria of abuse of power, maladministration, incapacitation, all of that in lieu of

something very different, criminal type behavior. That's the way it was solved. You say the standard is it's not, doesn't have to be a felony, doesn't have to be an actual criminal misdemeanor, has to be that or what? How would you do it in a line or two? great competitor like Joe Louis and Jackie Robinson and Brady and others, the others you don't fill in at that point are people in the stock market. You fill in somebody else who's an athlete. When you have a whole series of things, treason, bribery, or other high crimes and misdemeanors, the others have to be like treason and bribery. And maladministration and abuse of power and obstruction of Congress are not like treason and bribery. They're like putting Sam Walton into the list of great competitors after you have Tom

Brady and Joe Lewis and other great athletes. So even by any kind of just grammatical look, you see that the framers had in mind criminal type behavior. Okay. So here's, here's, I was looking around for a practical explanation of the opposite argument. And, um, I'm not a huge fan of this website, but I'm going to quote them anyway. It's lawfare. They're pretty hard left. So here's how they, this is their response, that it's just absurd that you could say, you know, that it has to be some sort of criminal behavior. It has to be incitement under Brandenburg in order for it to be impeachable. Their argument is, of course, an abuse of power, something less than criminality, something less than incitement under Brandenburg is impeachable. And this is what they say,

and I'm quoting here. Imagine if Trump had responded to the Charlottesville riots with an impassioned speech in defense of white nationalists and the need for street justice. Let me just finish this paragraph. Imagine if the president, after the death of Ahmaud Arbery, a black jogger pursued and shot by three white men, responded with a public statement declaring that the victim deserved his fate and used racial slurs in saying that such people needed to learn to stay in their own neighborhoods. Imagine if the president invited leaders of white nationalist groups to join him on stage at a rally and gave his own version of Confederate Vice President Alexander Stevens' speech declaring that the American government is founded upon the great truth, this is a quote, inside a quote, that the Negro is not equal to the white man, that slavery, subordination to the great truth, this is a quote, inside a quote, that the Negro is not equal to the white man, that slavery, subordination to the superior race is his natural and normal condition. Last one. Imagine if the president told a public audience that it would be fitting and proper if

Nancy Pelosi and Chief Justice John Roberts got what was coming to them, which was a bullet between the eyes. Their point is we would absolutely get rid of such a president via impeachment, and we wouldn't care if it wasn't incitement under Brandenburg or didn't technically qualify as a high crime or misdemeanor. Well, I think you have to distinguish all of those. The first of them all were protected by the Constitution. It's very clear. You can say whatever you want about any Holocaust. You can say Jews are greedy. You can say that Jews send lasers from outer space and cause forest fires. You can say Jews are greedy. You can say that Jews send lasers from outer space and cause forest fires. You can say whatever you want about any group. You can promote white nationalism. You can promote communism. I grew up during McCarthyism when that was prohibited.

We civil libertarians fought in favor of allowing people to support communism, even though we hated communism. The last example is much more difficult, shooting the chief justice and the speaker of the House between the eyes. It depends on the context. If somebody wrote a book about it, that would be protected speech. If somebody said it would be a good idea to assassinate the vice president or somebody else, that's protected speech. In fact, the United States does that. We assassinated, obviously, terrorists. We assassinated Soleimani. We assassinated some other people. And people have advocated it. I have advocated targeted killing. But I think if you went in front of a crowd and said, now go and shoot so-and-so, that would probably be incitement.

But it supports my point. My point is, if it's incitement, then it's not protected by the Constitution, then you can impeach. Okay, but you're taking the easiest example. Let's go back to the other ones. Let's take the violence out of it. Let's go back to the white nationalist stuff, or on stage saying, black people aren't as good as white people. They're subjugated. They're mere slaves. If a president today did that, how would we get rid of him? We wouldn't. We'd have to vote him out of office. We'd have to make sure that- Oh, come on. You have to wait. So if he gets up

there day one after taking the oath of office and says all that kind of nonsense, we have to sit there for four years? That's right. We, the American public, can deal with that. We fight back. We defeat him in the marketplace of ideas. But by the way, presidents have said things like that. Woodrow Wilson has said things like that when he was president. Well, it was a different time. I mean, the public outrage may not have been what it would be today. But what if you had a president who got up there, took the oath of office, and then immediately after taking it said, I didn't, I didn't, my heart wasn't really in it. This country sucks. I love Russia. And I'm going to do what's in the

best interest as I see it from this point forward. And then Congress would never allow him to have anything passed. They would overrule him on everything. Look, come on. This is I was with you're like winning every argument till this one. Let me tell you what would happen if a president ever did that. Congress would convene that day and would amend the Constitution and would provide for impeachment and removal for that kind of a statement. But it's not in the Constitution today. What you can't do is stretch the words of the Constitution to apply to conduct we don't like. We hate that conduct. But we can't stop it under the Constitution as it is currently written. I mean, I've heard the following example. What if a president refused to defend America

from an enemy? Well, you know, that's happened. There were people running for president saying we shouldn't get into the Second World War. We shouldn't get into the First World War. The Vichy government surrendered to the Nazis. Those are all terrible, terrible, terrible things. They are not impeachable under the current flawed Constitution. Change the Constitution. But the one thing you cannot do is, under the current Constitution, violate the First Amendment. The First Amendment permits all that kind of speech. If you don't like it, amend the First Amendment. I don't like people having guns. I want to amend the Second Amendment, but it's not going to happen. But this would happen

if you had a president making those kinds of statements. The Constitution would be amended. The law responds to realities, but you cannot stretch and turn the Constitution into a document it's not, and you cannot, you cannot constrain the First Amendment and make it apply to whatever the fashion of the day is. Lillian Hellman once said, during McCarthyism, I will not allow my morality to be affected by the styles of the time and the fashions of the day. And she stood up against McCarthyism. And I'm standing up against left wing McCarthyism today and academic McCarthyism that would constrain the First Amendment in an effort to remove an unpopular president and disqualify him from running for future office. I'm standing up for the Constitution. Well, this is an interesting intellectual exercise. I would say overall, I'm still, I still believe that he didn't reach the Brandenburg incitement level at all. I still have to confess, I'm not really persuaded that abusive power isn't an appropriate grounds for impeachment. I don't think I'd ever say I would cite with lawfare over Alan Dershowitz, but I am

persuaded that there's been so many cases. John, also like very conservative, smart scholars, John, you, Andy McCarthy, they're against you on this. They believe abusive powers. I'm alone. I've stood alone against academics from the beginning of my career. I feel very comfortable standing alone. I stand alone in favor of the First Amendment, and I always will against the left, the right, and the center, because I strongly believe that freedom of speech is the essence of democracy. And if you have freedom of speech for me, but not for the, and by the way, many of these people, not McCarthy and not some of the others you talked about, they don't pass the shoe on the other foot test. They would take exactly the opposite position if we had a liberal Democrat president who was being impeached. So I don't

take them seriously. I do take seriously people who are nonpartisan, but reasonably we disagree. I look at the long-term impact on the First Amendment and I'm terrified that we live, we used to have a golden era of the First Amendment from 1960 to about 2000. Now we're seeing that gold tarnished, particularly in the last four years. Much of the responsibility lies on the shoulders of Donald Trump. He provoked us. He made people hate him. And he created a reaction to freedom of speech, which is now hurting us terribly. And he's gone.

And I think we have to rebuild the First Amendment, restore it, get rid of cancel culture, get rid of attempts to constrain the First Amendment, and do not use Donald Trump as an excuse to constrain the First Amendment, because it'll come back and bite you if you're on the left, or if you're on the right. It would also help their case if they hadn't tried to impeach him, I think literally nine times. The Trump's Trump's brief points out this week, this is literally the ninth time they actually tried to impeach him. Only two actually went forward. But, you know, they the boy who cried wolf is sort of like, I realize this was serious, but people are kind of over it, especially now that he's out of office. And in the end, again, it's a political matter, not a legal one.

It is a legal matter to the Constitution matters. You can't violate the Constitution in the name of politics. And just if you want to think about the implications of what is going on, go back and read the letter from the scholars. The First Amendment defense raised by President Trump's attorneys would be legally frivolous and therefore essentially disbarrable. That's where we're heading, that essentially disbarable. That's where we're heading, that we can't even debate whether the First Amendment signed by Lawrence Tribe,

signed by Charles Freed, signed by Martha Minow, signed by many, many distinguished scholars telling us we can't even debate whether the First Amendment applies, and that if you argue that the First Amendment applies, then you are argue that the First Amendment applies, then you are not a reasonable scholar or jurist and can't work at our law school. That is McCarthyism. Well, let me ask you about that, because I did. This isn't the exact same thing, but I was asking him about Ted Cruz and Josh Hawley, and he's he's not a fan. You know, there's a push, as you know, to disbar them because they stood up and challenged the counting of the electoral college votes. And, you know, the Democrats have done that, too. They may not have had the same numbers as Cruz and Hawley and others had this time,

this go around, but they set the precedent. They have done that. And so I don't really understand how you can, you know, reasonably make the argument that that's a disbarred for defending communists. And I will represent any lawyer who's disbarred for having challenged the vote. I think the vote was fair. I think this was not a stolen election. This was not a fraudulent election. It was a fair election. But if a lawyer wants to make the opposite argument, I'm going to defend them. The idea of disbarring lawyers, the idea of going after senators, the idea of Harvard making you go through some kind of a re-education program if you were an enabler of Trump and if you want to come speak, that's not diversity. That's not education. That's propaganda. We are in a crisis of education today,

and the crisis of education is manifest mostly by that letter of the 144 people showing intolerance toward arguments based on the first amendment shame on them. We have to fight back. Yes, fight. I'm using fighting words. I don't mean literally, but we have to fight back against this left-wing McCarthyism. And I'm happy to lead the campaign because I don't have a lot of allies on this and I'm happy to stand alone. Well, I like that. I'm happy to lead the campaign because I don't have a lot of allies on this. And I'm happy to stand alone. Well, I like that. I'm with you on that one. I rule in your favor on that. They will not be disbarred. Alan, such a pleasure. It's great talking to you and to be continued. Likewise. Thank you. Be well. Today's impeachment arguments were brought to you in part by Super Beats Soft Chews.

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