Podcast Transcript: What Constitutes an Impeachable Offense?

Editor's Note: This text may not be in its final form and accuracy may vary, and it may be updated or revised in the future.

On August 29, 2018, Alan Dershowitz and Joshua Matz join host Jeffrey Rosen for a spirited debate on when and how the Framers intended for the impeachment power to be used. You can read the full transcript of the podcast or listen to it at this link.

Jeffrey Rosen: I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit institution chartered by Congress to increase awareness and understanding of the Constitution among the American people. We've had a number of new developments in the ongoing Mueller investigation and related criminal investigations, and we have joining We the People today two of America's leading experts on the impeachment clause of the Constitution. Both of them have written important new books about impeachment, and we are so honored to have them to debate the Founders’ conception of what counted as an impeachable offense and whether or not any of the recent allegations might qualify. Alan Dershowitz is Felix Frankfurter Professor of Law Emeritus at Harvard Law School and the author of the new book The Case Against Impeaching Trump, published earlier this summer. He's been called the nation's most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights. Alan, it is an honor to have you back on We the People.

Alan Dershowitz: Alan Dershowitz: Well I love being on and I love your center and I follow everything you do. So it's my honor. And thank you for having me. Thank you so much for that.

Rosen: And Joshua Matz is of counsel at Gupta Wessler and Kaplan Hecker & Fin where his practice includes appellate litigation and constitutional law. He is author of To End a Presidency: The Power of Impeachment which he co-wrote with Professor Laurence Tribe, publisher of the Take Care blog, and a return champion to We the People, as well. Joshua, it is wonderful to talk with you again, as well.

Joshua Matz: Thank you for having me. And I just echo Alan in saying that I think the world of the work that you do, and I'm excited to discuss the Constitution with you both today.

Rosen: Great. Well let's plunge right in. Joshua, you and Professor Tribe wrote your book first and you were here at the Constitution Center a few months ago to discuss it in The New York Times recently. In Adam Liptak's piece, “When is an offense impeachable? Look to the Framers,” you said the main and possibly only form of preinaugural conduct that would properly qualify as an impeachable offense is conduct relating directly to the acquisition of the presidential office; not every impeachable offense is a crime and not every crime is an impeachable offense. Tell us more about your views about the Framers' notion of impeachable offenses.

Matz: The Framers designed the impeachment power because they recognized that in creating a new form of government, an empowered national government, an energetic singular chief executive, there was a concern that if a president went off the rails and if the president took too broad a conception of what he could do while in office, the entire experiment that they were attempting, a new form of government, would be imperiled. And so when the Framers designed the impeachment power, what they really had in mind were offenses by the president, conduct by the president, that imperiled the legitimacy of the democratic system as a whole. And when we look at how they talked about it and what kinds of things they deemed impeachable, which we know include treason and bribery as well as a bigger phrase, high crimes and misdemeanors, you know we see that these types of offenses involve corruption, betrayal, or an abuse of power that subverts core tenets of the U.S. governmental system. Generally speaking, they involve intentional evil deeds that pose a terrible threat of injury to the nation as a whole. And they are the kinds of misdeeds that are so obviously wrong that nobody could genuinely profess surprise at being impeached for committing them, or put differently, they didn't have in mind impeachment by ambush. They were they were thinking about the kinds of evil deeds that anyone would realize that you can't leave this person in power now that they've committed it. And so it's by reference to that understanding of what they were doing that I made those remarks to The New York Times. Generally speaking, before a president takes office, he can't abuse or misuse the powers of that position. At the same time, it would be most perverse to say that somebody could engage in illegal activity that results in them, or that helps them, obtain the presidential office and then when found out, keep the fruits of their own as it were fraudulent conduct or traitorous conduct. The Framers said that explicitly in reference to someone who sought to corrupt the Electoral College and in fact one of the most frequently cited examples of an impeachable offense was corruption of the Electoral College and the electoral system and it's no small – it’s no great leap from that understanding of high crimes and misdemeanors to think that if a president breaks the law and betrays the nation and corrupts the electoral process and thereby obtains power and is discovered, and if the American people come to understand that that's what has happened, that it really can't be the case that that person should be allowed to remain in office as an illegitimate leader of our democratic system.

Rosen: Thank you so much for that. Alan, in the introduction to your book you disagree with professors Tribe and Matz and you argue that only crimes are impeachable offenses and not all crimes are impeachable offenses. Tell us more about your conception of what counts as an impeachable offense according to the Framers.

Dershowitz: Well first of all I want to explain why I wrote the book. I wrote my book The Case Against Impeaching Trump because of my dear friend and long-term colleague Larry Tribe who called for President Trump's impeachment even before he took office. And then within weeks of him taking office wrote an op-ed piece saying that he must be impeached and the process of impeachment must be undertaken, and because I felt that that did not sufficiently inform the American public about what the criteria of impeachment were, I decided at that point to write a book. Having said that, I don't disagree with a single thing that my colleague has just now said. But remember that what my colleague said was that a president could be impeached if he, and I'm quoting him now, breaks the law or engages in illegal activity that corrupts the election. I agree with that. I agree, by the way, that an impeachable offense can occur in the run up to the election, that if a president breaks the law, commits bribery, treason or other high crimes and misdemeanors in an effort, successful effort, to become president, he can be impeached, so we might end the debate right here. Except that I know that my colleagues disagree ultimately with the concept that it has to be breaking the law or an illegal activity. And that's where I think the rubber meets the road and where I think the debate really takes place. I agree with your conception of what the Framers had in mind, but the Framers didn't write in the Constitution that a person can be impeached for actions that quote imperil democracy, which is what you say, or if the person goes off the rails. They could easily have written criteria for impeachment that were broader and did say anybody who imperils democracy or acts corruptly to undermine democracy should be impeached. That would be perfectly rational. But instead, they introduced much, much more rigid and rigorous criteria. They talked about treason which they defined in the Constitution, bribery which was well-defined at common law and other high crimes and misdemeanors, not or misdemeanors. And my understanding then is that a crime is a necessary but not sufficient condition for impeachment. I think all the elements that we've just discussed become sufficient conditions that is, it can't just be a crime. It can't be lying about whether you had an affair in the Oval Office or it can't be what Alexander Hamilton did: having an adulterous affair which was a felony while he was secretary of the Treasury and then paying extortion funds from his own money. But if Alexander Hamilton had paid the extortion funds from Treasury money, that might very well have been an impeachable offense. Where we disagree, it's not on the ultimate criteria are. I think you need to have all the things that have just been stated. But in addition you need to find the specific crime and that's why the criteria specify a trial in the Senate. They have procedures for the trial. The chief justice presides when it's the president, and I think you have to look at the language of the Framers and you have to look at what was intended at the time of the framing and understood at the time of the framing and my view, I think that the book that we're talking about, Larry and your book, is a brilliant - I think everybody should read it. It's states a view somewhat different from my own. I think reasonable people could honestly disagree as to whether the history shows you need or don't need to have a specified crime in addition to either treason or bribery. I think you do, you think we don't. And I think that's where the debate really should occur.

Rosen: Wonderful. Thank you so much for that. Joshua, to join the debate, can you give us examples of either attempts to undermine democracy that are not criminal that you think would be impeachable or of crimes beyond treason and bribery that you think might be impeachable to emphasize your differences with Alan.

Matz: I'd be happy to do that, and I should start by saying I think Alan's book is a great contribution, as well. You know these are not easy issues. And here as in so many other places the Framers were less clear than they might have been. You know, I do think however, I do think that the sort of decisive weight of the available evidence and argument supports the view that you don't need to have committed a specific crime in order to engage in high crimes and misdemeanors. We see that when the Framers discussed at length their concern that the president might commit great and dangerous offenses against the nation for which no remedy might be had. But I think we actually see it most clearly, and Jeff, then I will answer your question more precisely, but I think we see it most clearly in the fact that the early Congresses which were setting up the powers of the federal government didn't create and didn't even attempt to create and really never even discussed creating a body of federal criminal law that would be adequate to the task of making a crime. Most of the kinds of presidential misconduct that the Framers spoke about at the Constitutional Convention and indeed the Framers designed a federal government that lacked the ability - it lacked the delegated and enumerated powers to make criminal many of the things they talked about. And so there's this weird mismatch in Allen's view which is that the Framers said a president could be impeached and removed from office only if he or she commits a crime but then Congress was deprived of the ability to create a broad body of federal criminal law, never attempted to do so and has in fact never passed a series of criminal statutes addressing some of the kinds of misconduct the Framers themselves were most concerned about. And that's true even with respect for example to bribery where there wasn't a generally applicable bribery law outside the context of bribing judicial officials into the mid-19th century. And you really would have been thinking about bribery in a more capacious sense as something that undermines and corrupts the integrity of the federal government and we know that that has practical consequences. I mean if we take Alan's view seriously, you know in principle the president could simply refuse to defend the nation against an invasion by Russia. And as long as he wasn't committing treason within the meaning of Article III of the Constitution there'd be nothing to be done about it. The president could deliberately order U.S. citizens to massacre innocent civilians abroad. He could announce that he will pardon anyone who hatefully, you know, and intentionally murders an undocumented migrant or a gay person or anyone who unleashes weaponry at the rallies held by his political rivals. There's sort of no end to the ways in which presidents can misuse the powers vested in them by the Constitution in ways that would be extraordinarily disruptive of democracy, but that wouldn't qualify as crimes within the meaning of federal criminal law and it just seems peculiar to think that the Framers who put so much thought into this power failed so miserably at preventing the kind of renegade president that they obviously had in mind.

Dershowitz: Well that's an interesting point. Of course, you omit the fact that there were two sources of criminal law at the time of the framing. The first and most important of course were the laws of the 13 colonies which were sovereign entities. They all had extensive criminal codes. The Virginia criminal code was drafted in part by Thomas Jefferson, the Massachusetts code was hundreds of pages long. I have a copy of it in my library. They define all of these crimes. But in addition, there was the federal common law of crimes which until 1815 was regarded as governing and it was borrowed extensively from British common law. Everybody knew what bribery meant under the common law of bribery and I never suggested that the crimes that have to be committed are limited to federal crimes because you're 100 percent right. We didn't really have federal criminal laws extensively on the books until after the framing but we did have the common law. It was only in 1815 in a case called U.S. vs. Hudson that the Supreme Court held that you couldn't have a federal common law and that stimulated the enactment of federal criminal statutes. Today, of course, the federal criminal law governs much of what was even state law through RICO and conspiracy and other kind of cross border type of crimes. But to address the issue of all these terrible things the president could do in my book I give an example of the president giving Alaska back to Russia. You know Putin coming and saying look we took Crimea back and now we want Alaska back. And if a president gave Alaska back assuming he had the authority to do it much like Jefferson had the power to accept the Louisiana Purchase, I agree that would not be an impeachable offense. He would never be reelected and he would be chased from office basically by political means and political accountability. But no that's not a crime. That's a political act. Some of the other things you mentioned - ordering the shooting of aliens of course would be crimes. They'd be very serious crimes, and of course murder or accessory to murder, conspiracy to murder or inciting murder would all be the kinds crimes that could be impeachable but you know we're both right in this sense - that you can come up with hypotheticals that would persuade me that the person should be impeached and that I would have to tell you are not covered by the impeachment powers because the Constitution is incomplete. And then I can come up with examples, for example of Professor Lichtman who said the president should be impeached because getting out of the climate accord is a crime against humanity. We don't want that. We don't want the criteria for impeachment to enter into the domain of political differences no matter how wrong we think the differences are, and I think some of the policy decisions made by this administration are abominable and I've opposed them from day one. Nobody should confuse what I'm writing with support for this administration on almost any of its policies. I'm making a strictly constitutional argument and I think you're absolutely right when you say there's no perfect answer. There are gaps in my approach. There are gaps in your approach and I would finally respond by talking about the principle of lenity, and I know we'll disagree about that. But when you have a constitutional provision that imposes some kind of a punitive impact, and I know you say it's not punitive it's forward looking. I read your book very carefully, but it has a punitive effect to eliminate somebody from office. You do have to read the constitutional text narrowly; you have to read it in terms of lenity, that is by resolving reasonable differences against a broad conception of what the power entails. I know your answer. Your answer is this is - impeachment is supposed to be preventive and proactive and future looking, not past looking, but if that's what the Framers had in mind they wouldn't have used terms like treason and bribery and other high crimes and misdemeanors. They would have used future looking terms, so I take literally the words of the Constitution and I think they have to be applied literally even if they bring about results that violate my conceptions of good policy and your conceptions of good policy.

Matz: Well and of course I doubt very much that we're in disagreement about the importance of taking the words of the Constitution seriously. You know I think that the challenge is that the Framers designed this power for a reason. They were concerned that presidents would use their powers in ways that imperil the democratic project. And in thinking about how to give meaning to words whose meaning is not always self-evident it's helpful to look at the structure of the Constitution and at the original public meaning and how these terms were debated in context.

Dershowitz: I agree.

Matz: And I assume that we're on the same page about that. You know I agree with you. I think we actually have quite a bit of agreement that you have to care about lenity. That was why I emphasized that you should never have impeachment by ambush. It should be the kind of misconduct that everyone would realize could subject you to this. You know I might give it as an example along those lines: If President Trump came out tomorrow and said, as a matter of federal criminal law I will pardon anybody who engages in violence against an undocumented migrant because I don't want them in the country, that use of the pardon power, unless you had some very broad conception of conspiracy or aiding and abetting, probably would not be a crime. But it seems bizarre to think that the Framers would have anticipated a society where the president could use their power that way and we all just had to live with it and use other political checks and balances, which is what you've described, until the next election.

Dershowitz: Let me give you -

Matz: Sorry if I could just finish the thought. You know it's like I completely hear you when you say that there was a richer body of state criminal law at the time. You know, although clearly whether it makes sense for the states to define the contours of a federal power and how weird it would be that something could be impeachable if done in one state but not another, and that there was something of a broader federal criminal law in the form of the common law at the framing although that ended almost immediately. But when you think about the broad discretionary powers given to the president, you know, and I think we see this for example in Nixon's case where some of the misconduct that was alleged in the obstruction article passed by the House Committee targeted the manner in which he exercised his supervisory powers over federal intelligence agencies and law enforcement agencies. The president has the ability to use those sorts of powers in ways that just are outside the compass of the criminal law and in which it would be very difficult for Congress to try to write criminal law but in ways that can really undermine the democratic order and while it's true as you point out that, you know, my position and yours have slippage. You'll have some very uncomfortable hypotheticals. I have Allan Lichtman and his hypotheticals which I obviously, I do not agree with and think are quite poorly designed. But you know I think what that points up is that there is ultimately a political judgment to be made here. And what you're saying is you know political judgments are tricky. And so what we need to do is to put the criminal code in as a baseline and we need to at least show a violation of the Criminal Code to discipline the political judgment.

Dershowitz: Right.

Matz: But I'm not even convinced that that works because as we point out in our book many crimes wouldn't be impeachable and the definition of what counts as a crime is itself often subject to controversy as you yourself are a master of demonstrating. You know we're in a realm where political judgments are unavoidable. And I think saying that you can only remove someone from violating the technical terms of a criminal code artificially and kind of unnaturally limits the impeachment power without much countervailing benefit.

Dershowitz: Well I think the countervailing benefit is you have a check and balance. I agree with you that political considerations do come into play, but in my view they come into play only after nonpolitical considerations have been satisfied. That is you have a prerequisite you have to first prove a high crime and misdemeanor or treason and bribery and then you can allow political considerations come into play. I think that's what happened with Nixon. If you look at the charges made against Nixon, and I think Nixon's impeachment was the only legitimate one against the president under our Constitution. I think we will agree that Andrew Johnson's was not appropriate, that what he did was constitutionally permissible though it was terrible and he helped - he undercut Reconstruction. And what Clinton did although a crime was a low crime not a high crime. I think that to counter your example, it's a very good example, about what if the president said he would pardon everybody, and he practically did that when he pardoned Joe Arpaio, I mean that wasn't quite as bad as that but it was a pretty bad example. But what if President Kennedy had said look I'm going to pardon every single civil rights demonstrator who was arrested in the south even for committing crimes that are legitimate crimes in the south. I'm simply not going to tolerate that. It's the policy of this administration to make sure that civil rights demonstrators can go forward. I think we would all agree that that should not be an impeachable offense. But I think many people south of the Mason-Dixon line would have said that undercuts the rule of law, it undercuts democratic governance, it substitutes political policies for the policies of the law. And we'd have an interesting debate about that. Look, I think we've come to some very, very substantial agreements: that neither of our positions are flawless, that we're not going to be able to find out in the end who's right because we're not going to have an impeachment probably that doesn't involve something we can agree is a criminal act. It will probably never happen and that the real question is as a matter of constitutional policy. Is it better to err on the side of having some protection, namely the requirement of a crime before the political considerations come into play, or is it better to have an open-ended political decision making that only focuses on the very good points you make about undercutting democracy? I think that's a very important and reasonable debate. And I wish we could have it civilly as we are today on this show around the country. It's an impossible debate to have on Fox, CNN, MSNBC, and many of the other stations because on those shows, they ask only one question: which side are you on? It's my grandmother's question. When the Dodgers won the World Series in 1955 and I came home and I said Grandma, the Brooklyn Dodgers won, she says yeah, but was it good or bad for the Jews? That was her only concern. Today the question is yeah, but is it good or bad for Trump? Is it good or bad for Democrats? Is it good bad for Republicans? I think you and I have had a very good debate about whether it's good or bad for the Constitution and I think in the end, any reasonable person listening to this debate should come away saying it's a complicated question and it's not completely clear. And there's one other issue I just want to touch on because it's so fascinating and that is, you take the position of course there's no judicial review of the criteria for impeachment and I pose, I think, this really interesting hypothetical of, what if Trump or anybody else were impeached for a non-crime, for you know, miscarriage of office and removed and he refused to leave? He said, no I'm not going anywhere: The Congress applied an improper constitutional criteria. Wouldn't you acknowledge that that case might well have to get before the justices? Because if you had a standstill, Congress saying he's removed and the president remaining in the White House, only one institution could resolve the issue of whether or not you need a crime for there to be an impeachable and unremovable offense.

Rosen: Josh I'm going to let you answer that and then I have a few questions of my own in this wonderful debate that doesn't require a moderator. What do you what do you think of Alan's question about whether the decision to impeach could itself be judicially reviewable before the Supreme Court?

Matz: So Alan said so many interesting things that I hope you won't mind that I wanted to just address one of them first before I answer that question, which is, he emphasized and I agree with him that there are aspects of this that are not completely clear. You know one concern, of course, is that these often are tricky issues and it's easy, you know, it is in fact the case that there are some hard political and legal and constitutional judgments here but that fact can't be and shouldn't be used as a basis for saying, well because it's all so complicated and because it's so difficult to know, the president needs to be given essentially sort of infinite latitude because how could the president ever know whether what he did was or wasn't properly impeachable? You know and there's this phenomenon that I've noticed lately which I think Alan has to some extent been a part of that I think of as the kind of incredible shrinking impeachment power where, you know, in the Clinton years there is an argument that you can't impeach the president for private conduct. Under Trump there is an argument that you can't impeach the president for conduct where they in fact use their official powers. That you can't impeach the president unless there's a crime. And as Alan would I'm sure happily talk a great deal about, there are important limits on federal criminal law, in particular relating to demonstrating corrupt or improper intent on the part of the defendant, and it can be exceptionally difficult to establish those intent requirements, or Alan might even take the position that these laws don't apply at all to the president in the exercise of certain official powers. So you sort of end up in this weird position where there's the power that appears to be a big deal, that the Framers certainly thought was a big deal, that you can really barely use anywhere because you can't use it for private conduct, you can't use it for exercises of power, you can only use it for crimes except you then define crimes and criminal law as applied to the president almost into non-existence. You know, and I should emphasize I'm no big advocate that impeachment is the answer to every problem and the book that I wrote with Larry sounds many cautionary notes. But one of the things that I do worry about is you know impeachment is meant to solve a particular problem and to the extent we're choosing among interpretations, one of which renders it almost utterly on able to solve that problem, and one of which comes with some difficult judgments to make on the margins. I do think that there is a need for a more robust conception than Alan might offer of what the impeachment power can do. And I would emphasize just as one last point on that note you know Alan has written eloquently about the dangers of criminalizing politics and of talking too much about criminal law and of criminal conduct in thinking about how our political system works. But would you insist that only a crime can be impeachable and that we can't think about presidential misconduct outside the vocabulary of the Criminal Code when we're thinking about what might be removeable? That actually contributes in a very substantial way to jamming all of our political debates in a criminal law framework. And so there's this perverse outcome that I think Allen might be comfortable with given that he and I share a concern about an over criminalization of politics. And then because I did promise I would answer your question and I'll just be very short, I am fairly skeptical that judicial review would be appropriate. The Constitution assigns this power to the Senate and to the House. It says they shall have the sole power and it doesn't by its terms contemplate any judicial review. In fact, the Framers considered and specifically rejected the involvement of the Supreme Court in impeachment for a host of reasons. And my guess is that ultimately this is a political judgment that really does stop with Congress and that the Supreme Court is likely to take that view as well.

Dershowitz: Well first of all it's no answer to say that the Framers didn't contemplate judicial review of impeachment. They didn't contemplate judicial review of anything. There's no provision in the Constitution for judicial review. Chief Justice John Marshall invented it in Marbury v. Madison and its progeny. What he said is look we have no choice. If you have a statute or an action of Congress and you have the words of the Constitution and there's a conflict either one of them has to prevail or there has to be an institution for deciding it and that's why I structured my hypothetical and I'm really proud of that hypothetical of a president who refuses to leave and then just like Bush v Gore where nobody would have imagined the Supreme Court would enter into a decision about how you count chads in Florida, and I think we all agree it was a terrible decision to enter into that case. But I think the court would inevitably without any option have to weigh in. It might weigh in by simply saying in the end that it's up to Congress and if Congress makes a mistake the president has to abide by it. But it might not do that. And as far as making the impeachment power naked, I don't agree with that. I think Nixon was the one example in our history where a president should have been and would have been properly impeached. He committed high crimes, numerous high crimes: paying hush money to witnesses, telling subordinates to lie to the FBI, destroying evidence and he also destroyed - tried to destroy democratic governance. It's the paradigmatic case and it fits your criteria perfectly because everybody knew it was impeachable including Richard Nixon who voluntarily left office because he knew otherwise he'd be impeached and removed. So I think impeachment under my conception remains a powerful tool to be used in Nixon-like situations but not in Clinton-like situations. And I have to tell you, I wish Hillary Clinton had been elected president because they would have moved to her impeachment on day one. I would have written a book called The Case against Impeaching Hillary Clinton, in fact my publisher printed an alternate cover called The Case Against Impeaching Hillary Clinton just to make the point that I would be making the same arguments for Hillary Clinton. And my question always is would other people be making the same arguments in favor of a broader use of the impeachment power? And you know, that's a fair question to ask and I think to avoid having to answer that question you need a safeguard. In my view, the Framers put in the Constitution the safeguard, the requirement of a trial by the Senate and conviction - that word is used. Conviction after trial. Those are words having to do with crime and then the Constitution says that the president can be tried, it implies, after he leaves office, which strongly suggests that it would be a crime that he would be impeached and removed for and then he could be tried again because it's not double jeopardy. But these are again great debatable issues and it's been a real thrill for me to participate with such a brilliant expert who's done such extraordinary research. My recommendation to all your listeners is read both books side by side. Make your own decision, come to your own conclusion, try to be as objective as possible and ask yourselves what is the better constitutional approach? Some of you will agree with my colleagues. Maybe some of you will agree with me. And even if not I think you'll learn something in the process.

Rosen: This is wonderful. We have you for just I think 10 more minutes, Alan. I just want to put on the table whether, under what circumstances you agree or disagree that the current allegations against President Trump might or might not be impeachable. In your book, Alan you say, imagine Trump called Vladimir Putin and said the following: Hey Vlad do I have a deal for you. I want to be elected president and you want to get rid of the Magnitsky sanctions which I don't like. You should help me get elected by giving me dirt you already have on Hillary Clinton because that would be a better chance to get rid of the sanctions which I disapprove of. Of course that didn't occur, you said, but if it had been because it is not a federal crime to collude with Russia, it should not be impeachable and he should not be impeached for the political sin of colluding with a hostile foreign power. Joshua, I want to begin with you. What do you make of Alan's hypothetical, and if completely hypothetically Trump did call Putin and say, help me in order to get me elected president, do you believe that would be an impeachable offense or not?

Matz: Yes, well and of course we are in the realm of hypotheticals. Alan has written a very strong case against impeaching the president. I am perhaps more moderate. I think the president may have potentially committed impeachable offenses although I think that the jury is still out and there are tough judgments ahead and that even if he has done so or may have done so, the question of whether it would be wise or prudent or better for the country for an impeachment to go ahead is a different and in some respects more important question. And I want to emphasize that just because I wouldn't want listeners to get the sense you know that you brought on someone pro-impeachment and anti. I think we both think that there are hard questions here, both about whether he may have committed impeachable offenses and about whether impeachment is a good idea. And I've actually written a fair bit suggesting there's a real need for caution here. But in terms of your hypothetical in particular, you know, I have to be honest. That to me sounds like a paradigmatic case for impeachment. I think the idea that the American public could go on knowing that the President of the United States had potentially come into power by virtue of deliberate and knowing conspiracy with the leader of a hostile foreign power to undermine our political system and destroy belief in the integrity of our electoral process is really hard to stomach. You know, Alan is sort of forced to that conclusion because he imposes this view that you must have a crime and because he takes an unbelievably narrow view of the applicable provisions of the federal criminal law. You know, I guess I just don't see it that way for the reasons we've already talked about. I mean think about it in some respects, think of it this way. You know imagine if Nixon had done everything that we now know he did but hadn't gotten caught. In that circumstance you know the American republic probably would have survived. But once it became known to the public, once everyone knew what Nixon had done, if he had been allowed to remain in office you know the damage would have been incalculable because it would have set a precedent in the American national understanding of what our democracy is and of how it works that would have just been unbelievably corrosive to the entire project of the Constitution. I think the exact same thing would be true if the entire American people were to know to a near certainty the facts that you hypothesized here and to say that the impeachment power can't reach that circumstance that we must continue to live with a man exercising extraordinary power who we know to have betrayed the country and to have obtained the office by corrupt means would be an unforgivable and unjustified burden to impose on the American people and would cause incalculable lasting damage to the democratic system.

Dershowitz: Well but you're not taking on my hypothetical. I wrote my hypothetical with great, great precision. Under my hypothetical what the candidate does is call the leader of another country and says to him, if you already have material that you've obtained, treat me like you would treat The New York Times, The Washington Post - give me the material you have. There's nothing criminal about that at all. It's just as constitutionally permissible for a candidate to get dirt on an opposing candidate that another country has than it would be if somebody called The Guardian and got it from The Guardian or got it from - you know, from a political point of view it's a very, very different case, but from a legal point of view, I purposely structured it so that there is no crime. I purposely wanted to pick the hardest possible hypothetical because everybody would say that this man does not deserve to be president. But what he did you know, if you take Noam Chomsky seriously he recently said on Democracy Now that, are you kidding? Russia influencing the election? Russian didn't influence the election. Israel did. It was Israel's fault that Trump got elected. Israel played more of a role in influencing the election. You'd get other people in the hard left saying other countries played a greater role. We know that we played a role in influencing elections from Chile to you name it. So many, so many other countries. That happens and it doesn't necessarily, if it's done legally, undercut the process of democracy. It would certainly cause a reasonable person to vote against that person. The reason I set the hypothetical up the way it did is to create the possibility of a slippery slope. If you say that's impeachable, what's next? And where do you stop? And when do you turn things into criminal? Look I agree with your point, you made a very, very good point and very interesting point. That I'm trying to have my cake and eat it. I'm trying to both narrow the criminal law because I don't want to see it used politically and yet I'm using the criminal law as a backstop. That is a very powerful argument against my position that it is an inevitable consequence of my position. I worry about it because I don't want to see the criminal law expanded in order to expand the impeachment power and in the end the result that I find least unsatisfactory is a narrow criminal law in which it's better that 10 guilty people go free even if that's the president of the United States than one person be wrongfully committed and an impeachment power which basically says the same. I might not use ten, I might use two instead of ten, better for two presidents who should be impeached not to be impeached than for one president who shouldn't be impeached properly to be impeached. And so yes, I'm more cautious than you are, you have a broader view than I have, and these are reasonable disagreements. The only question I would ask you, and I would ask it more to Larry than to you, is would you pass the shoe on the other foot test? Would you both have been making the same argument and written the same book if Hillary Clinton had been elected president? And the efforts were being made to impeach her because of the modem that she had, because of Benghazi, you name all the fake arguments they are making against Hillary Clinton, and I think they're primarily fake arguments, but they're taken seriously by 40 percent of Americans. Would you have written the same book? Or would you have written a book closer to my own book? That's the challenge that I put to everybody: the shoe on the other foot test. I put that challenge to Justice Scalia and his four colleagues in Bush v. Gore and they failed that test. Not a single one of those five would have voted the same way had it been Gore v. Bush not Bush v. Gore and I get very worried when people construct constitutional arguments to fit a particular person or a particular party rather than to fit eternal constitutional criteria that hopefully will bring our Constitution into the next century and the century after that. I want to make clear I'm not accusing you or your co-author of doing that. I'm just asking the question: Do you think you would both pass the shoe on the other foot test.

Rosen: Josh I want you, and I'm sorry, I'm going to jump in to say, I want you to answer the important shoe on the other foot test, but in the course of your answer, please address the campaign finance question and, you told The New York Times, if Cohen is correct and the president conspired with him or aided and abetted him in violating a campaign finance law to benefit Trump during the election, that would be an extraordinarily troubling concern that obviously merits comprehensive congressional investigation and political accountability. It's less apparent whether standing alone qualifies as a high crime or misdemeanor. My question is, what kind of bribery would you think would qualify as a high crime or misdemeanor since this is in fact a crime?

Matz: Of course. Well you know I have to, you know, I think one of the things that's tricky here is that when you say to somebody: I'm not impugning your motives, I'm just ask the question about your motives, that could be interpreted unfairly. And I'm going to give you the benefit of the doubt and trust that you're not doing that. But you know I do think, and obviously people have questioned your motives and I would hope that they would extend the same principle. I think you know I would have written this book. I stand by everything in it. The criteria that Larry and I applied, and I hope that you applied the same ones. You know we don't have the president tweeting about how our book is his best defense but you know we were trying to make the point- points that we would feel comfortable with in 10 years, in 20 years, and in 30 years and that we would have made 10, 20 and 30 years ago. And look you know as far as I can tell a significant part of Trump's base and his Twitter account are in fact actively prosecuting an impeachment against Hillary Clinton's hypothetical presidency. And so there is some measure of how that side might have thought about it. I do agree that this is a circumstance that requires a principled thinking and that you know hackery and that fashioning arguments to suit the needs of the moment is not the right way to think about the impeachment power. On the other hand, the impeachment power calls for a political judgment sensitive to current circumstances and the question of whether a particular president's conduct does in fact threaten the democratic system in a corrupt or abusive or traitorous manner. And the question of whether it is then wise to go ahead with impeachment instead of other ways of addressing presidential misconduct are questions that are inevitably answered by reference to the political circumstances that prevail at that point in time. As much as we want to emphasize the timelessness of some of these principles and the broader design within which they unfold, it's not entirely fair to say that an account of impeachment sensitive to current political dynamics is nothing but hackery because by giving this power to Congress and designing it by reference to the stability of democracy as a whole, the Framers intended that it will be exercised in part by reference to political circumstances and understandings. And in terms of the question that you've asked, Jeff, about campaign finance, the point I was making there is as follows: There's obviously a lot of debate about whether Cohen's concession in his plea bargain, his statement in his plea bargain that he knowingly made these payments and did so at the direction of the candidate, obviously President Trump, there's a question about whether that is sufficient evidence, whether it's reliable, whether it's trustworthy, whether it's enough to establish the president himself knowingly violated federal campaign finance laws. And Alan could speak about that far more eloquently than I could, and there's obviously a debate about whether the president committed crimes and whether Cohen's plea evidences that fact. What I had in mind was a sort of broader point which is, as we say in the book, not all impeachable offenses are crimes but also not all crimes are impeachable offenses. If the president had done nothing else and all we knew was that the president had done this specific thing, that the president otherwise ran a spotless campaign but that this particular campaign finance violation occurred, you know, several people were paid off in this manner and he knew about it and it did break the federal criminal laws, you know it's not apparent that that conduct poses so great a threat to the democratic system or so necessarily altered the outcome of the election or makes it so unimaginable that he could remain the president of our democratic society that it would rise to the level of an impeachable offense and it would certainly seem to me doubtful that it would be worth the national trauma of an impeachment solely to address that one concern. This is an area, and I think this is often true of impeachable offenses where you're not dealing necessarily with a single dastardly deed. Impeachable offenses are in some respects defined by a pattern of conduct that together undermines democracy and evinces a particular unwillingness to abide by the requirements of the rule of law, and so standing alone this defense I doubt would qualify as impeachable or make impeachment a wise move. I think the real question is the bigger picture for which for now remains obscure to us.

Dershowitz: Well I agree with that and I think the big picture is important. By the way, let me be very clear. Under campaign finance law and I've checked them now very carefully, I sat and I read them all and I came to the same conclusion Justice Scalia came to: I don't understand them. I don't understand what's permitted and what's not permitted. But one thing is clear: a candidate may contribute any amount of money wants to his campaign. I'm good at extreme hypotheticals so let me set one out: candidate Trump announces he's not taking any money from anybody. He's going to fund his campaign with a billion dollars of his own money and 100 million of that is going to be given as hush money to women all over the world who have accused him, truthfully of falsefully, of all kinds of conduct. No campaign violation by him. His treasurer would be obliged to list those as campaign contributions from the candidate, but by the way it couldn't have had an impact on the election because the reporting period that the payment of this hush money, which is perfectly legal, was after the election was over. So I think everybody has to take a deep breath when they look at the campaign violations that Cohen talked about. He didn't inculpate the president. He exculpated him when he said it was at the direction of the president and implied that the money was coming from the president himself. Look if the money came from corporate funds or other things. Those are all violations that can be looked into. But in the end if the president paid the money as hush money, it's simply not a crime or an offense at all. And so I agree you have to look at the big, big picture and the big picture is a disturbing one. Look I'm not here to defend President Trump. I didn't vote for him. I voted for Hillary Clinton. I don't agree with many of his policies at all and people who've challenged my motive, you know, come up with the most absurd motives: I want to be on the Supreme Court. I'm turning 80 this week. I want to be Attorney General. I'm being paid for it. I'm being paid by Fox. I'm the only guy who has never received, who's on all the TV stations, and never received a penny from anybody. I'm stating what I think is the right approach. You may disagree, you may agree, but the enmity that has been directed against me by my old liberal friends is unbelievable, for making the kinds of arguments I'm making here on the show. I have people who just have stopped talking to me after years and years of friendship. And that's just not the way conversation and democracy ought to go. So I really want to thank you for giving me an opportunity to lay out my views in a coherent way with a brilliant opponent. I don't mean to in any way imply that my opponent would not pass the shoe on the other foot test. I'm suggesting there are some out there who are making extreme arguments and would be making somewhat different arguments if the shoe were on the other foot. And that's very common in political discourse today.

Rosen: Well it is the greatest honor for We the People to have provided a platform for these two brilliant debaters to discuss their new books and to talk about the most contested constitutional question facing our republic in such an engaging and civil manner. I want to thank Alan Dershowitz and Joshua Matz and encourage listeners to read their books. The Case Against Impeaching Trump and To End a Presidency: The Power of Impeachment. Alan, Joshua thank you very much indeed for joining.

Dershowitz: Thank you for hosting. Appreciate it. 

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