HH: Pleased to welcome to the program this morning Alan Dershowitz. Professor Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School, and of course one of the great Constitutional Law luminaries in America. Professor Dershowitz, welcome to the Hugh Hewitt Show.
AD: Well, thanks. You’re lucky to be in beautiful Aspen, almost as nice as Martha’s Vineyard, where I am today.
HH: Well, we are among the pampered right now, both you and I. Professor, let’s get right to it. Article III, Section 3, for the benefit of the Steelers fans out there, let me read it to them. “Treason against the United States shall consist only in levying war against them or adhering to their enemies giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court. The Congress shall have the power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted.” Professor Dershowitz, it has been accused by including John Brennan and others that the President has committed treason. What do you think of that charge?
AD: It’s wrong. The Constitution defines only one crime, and that crime is treason. And it says it shall consist only, and basically it means that it has to be during wartime, levying war against a war, or during wartime giving aid and comfort. What President Trump is alleged to have done, you know, making the image of Putin stronger and helping him gain international credibility around the world doesn’t even come close to treason under the Constitution. Now to his credit, Brennan, who I like very much and is a very, very decent man, I think said his conduct was treasonous. I call that kind of treason lite, using treason as a kind of metaphor the way people say oh, that’s criminal when it’s not prohibited by any statute. And you know, the books I have been writing have been to try to draw that distinction between sin and crime. Nothing is a crime unless it’s specifically prohibited by the statute or the Constitution. The difference between us and the former Soviet Union is the Soviet Union, anything that was not specifically made legal was illegal. In the United States, only things that are specifically made illegal are illegal. Everything else is non-criminal and legal. You might not like what Trump did. I didn’t like what he did. But to call it treason is just wrong as a matter of Constitutional Law.
HH: Now I need a broader comment. Doug Brinkley, a very fine historian, said yesterday to Don Lemon that the taint of treason is around this White House. Jon Meacham, one of my favorite guests and an extraordinary historian said the President was giving aid and comfort to the enemy. I think these are all over the top, extraordinarily destructive statements. What is your opinion of them and this category of denunciation of the President over what was, in my view, a terrible mistake in Helsinki, but nothing remotely like this?
AD: Well, I think it helps Trump with his base. It shows that the Democrats and the opponents of Trump are not making nuanced, carefully thought through, calibrated criticisms. They’re going completely, completely over the top. In my new book, The Case Against Impeaching Trump, I lay out the whole law of treason and what it says and what it means. Remember, that treason is one of the two crimes specified for impeachment, and that’s why I think so many of the Trump opponents are focusing on treason, because if he did commit treason, and if he committed it in Helsinki, he didn’t do it in front of two witnesses, he did it in front of 100 million witnesses, then he would be subject to impeachment. But the criteria for treason is laid out clearly in the Constitution, and people shouldn’t just be making up crimes. The same thing is true with obstruction of justice. You can’t obstruct justice by firing the FBI head. That’s an act authorized by the Constitution that a president is entitled to do. And for there to be a crime, there has to be both an unlawful act and an unlawful intention. And an act can’t be both unlawful and authorized by the Constitution of the United States. So I think we’re seeing Trump’s opponents lose credibility by making these kind of arguments that just have no basis in law or the Constitution. And that’s why, you know, I wrote my book about impeachment. I don’t, I mean, I didn’t vote for Donald Trump. I voted for Hillary Clinton. I’m a liberal Democrat. But I don’t want to see the law stretched to target somebody whose politics we disapprove of. The framers of the Constitution, I show in my book, the framers explicitly rejected as a ground for impeachment maladministration, that is being a bad president or having policies you don’t agree with. They require that you be convicted of a crime – bribery, treason or other high crimes and misdemeanors. And unless and until the government can prove that Trump engaged in such crimes while president, the grounds for impeachment just aren’t there.
HH: I’m talking with Professor Alan Dershowitz. His brand new book is The Case Against Impeaching Trump. It’s available in Kindle and hardcover and audiobook at Amazon.com. Professor Dershowitz, some other Constitutional questions. Does Special Counsel Mueller have the authority to subpoena the President?
AD: He has the authority to subpoena the President. He may not have the authority to ask him certain questions. A president can’t be questioned about why they performed Constitutionally valid acts any more than senators or congressmen. You know, the Constitution specifically provides that no member of Congress may be questioned for the acts they do while serving in Congress. The same thing with judges and prosecutors. It’s not that any of these people are above the law. It is the law in order to give them breathing room to operate that certain questions are out of bounds. So if the President were subpoenaed and asked why he pardoned Comey, he would refuse to answer that question, and appropriately so. If he’s asked questions that involve executive privilege, he would refuse to answer those questions. But if he was asked about whether he made an appropriate application for getting a loan for his casinos back before he was president, he’d probably have to answer that question, except maybe that’s beyond the scope of the Mueller investigation. And he’d have to be asked that question by the Southern District of New York rather than by the Special Counsel. So if he is subpoenaed, we’re in for a big Constitutional battle, and nobody can predict how the courts will come out. But I’ll venture a prediction. They will come out giving him the right not to answer certain questions, but obliging him to answer other questions. So it would be a partial victory and a partial loss for Trump.
HH: Now a variation on that question, and by the way, you said pardon Comey. I think you meant fire Comey.
AD: Fire Comey, of course.
HH: Let me ask, yeah, the variation is could the President as the head of the Article II branch of government direct the deputy attorney general to direct the Special Counsel not to subpoena him?
AD: You know, that’s a very, very difficult question. He is the head of the executive branch. The Justice Department is under his supervision. Theoretically, he doesn’t even have to appoint an attorney general. He could serve as attorney general. We know that various prime ministers around the world have been defense ministers, ministers of commerce, ministers of this. The executive branch is a unitary branch, and he’s in charge of it. But it also, the framers of the Constitution said, nobody should be a judge in his own case. So I think there’d be some, you know, grave difficulty, certainly political difficulty if the President were to order a subpoena not to issue for him. Legally, he might be on solid ground. Politically, he would have no ground under him at all, so I don’t think it’s going to happen.
HH: Well, that would lead to an article of impeachment, perhaps. But as a matter of Constitutional Law, that’s where presidential malfeasance ought to be adjudicated, in the House of Representatives. And so I am of the opinion he ought to just direct the DAG to direct the Special Counsel not to do it to avoid this Constitutional crisis you talked about. But let me go to my third question for Alan Dershowitz. I don’t get The Alan Dershowitz often enough to ask these things. The indictments against the Russians dropped on Friday.
HH: There are reports that the Deputy Attorney General gave the President a choice. Do you believe it was 1) wise to give him that choice right before going abroad to a very important set of meetings, and 2) could the President have said hold off two weeks and not have it understood as obstruction of justice?
AD: First of all, I think it was a terrible mistake for the Department of Justice to issue that indictment on the eve of a foreign policy trip. The Justice Department is not supposed to be intruding on the foreign policy of the United States. They should have on their own held off. Second, it’s a show indictment. It’s not a real indictment. Nobody expects that these Russians will be extradited by Putin. Nobody expects that any of them are going to show up at Disneyland with their children and allow themselves to be served. So all we have is an indictment. And as a former judge said, you can get a grand jury to indict a ham sandwich. So we’re never going to see a trial. We’re never going to see Putin, and I don’t think it’s proper, by the way, for the Justice Department to indict people who will never be brought to trial, because once you do that, what you’re saying is we presume them guilty. We presume them guilty based on the indictment. And they’re supposed to be presumed innocent. And the American public takes the indictment as proof. Now in this case, it’s probably true…
HH: But with a minute left, Alan Dershowitz, we only have a minute left. We only have a minute left. Why shouldn’t they have indicted him before he goes abroad? What’s the issue there?
AD: The issue is timing. You know, the Justice Department policy say you don’t issue indictments just before an election, because you’re not supposed to be influencing policy. And embarrassing the President by issuing these indictments before he meets Putin was a serious blunder. The Justice Department should not have done that.
HH: Alan Dershowitz, great to talk with you. The brand new book is The Case Against Impeaching Trump. It’s available at Amazon. Come back soon and enjoy Martha’s Vineyard as I am enjoying the Aspen National Security Forum.
End of interview.