WASHINGTON — In mid-December, Alan Dershowitz got a call from US President Donald Trump’s legal team. The president wanted help with his defense in the looming Senate impeachment trial.
Initially, Dershowitz said, he demurred. He asked his wife, who was “adamant” that he not formally join Trump’s legal defense. “She said it’s very important for me to maintain my independence and to be able to say what I want about anything,” he told The Times of Israel.
That was, until Trump intervened.
In an interview, Dershowitz said he was dining with his wife at Trump’s Mar-a-Lago resort in Palm Beach, Florida, on Christmas Eve when the president asked to speak with his wife.
“The night before Christmas, we were having dinner with friends of ours in Mar-a-Lago, at the very, very end of the other end, very far away from where the president was seated,” he said. “But when I went in line for the buffet, sure enough, he gets in line in back of me and asks me if I’m going to do it. I said, ‘My wife doesn’t want me to do it.’ He said, ‘Bring her over.'”
They talked for roughly 15 minutes, according to Dershowitz, and came to an arrangement.
“Ultimately, we agreed that I would be a special counsel on the constitutional issues only,” Dershowitz said. “I would not get involved in the facts or the strategy. I would just present the constitutional argument against impeachment based on obstruction and abuse of power.”
The decision was not announced until last Friday.
Dershowitz, 81, was one of two high-profile lawyers who joined Trump legal defense team; the other being Ken Starr, the independent counsel whose investigations into Bill Clinton led to the former president’s impeachment in the 1990s.
The self-declared civil liberation lawyer has a history of representing infamous clients — such as O.J. Simpson, Harvey Weinstein and Jeffrey Epstein — but now, he’s in the middle of the most contentious episode of the Trump presidency yet.
The former Harvard Law professor will arrive in Washington Wednesday, and then argue the case for the president on Senate floor Friday. In the meantime, the famously media friendly personality has been making the rounds of news outlets to push the president’s defense.
Trump, he said, is facing a similar predicament as Israel’s prime minister, who has been publicly charged with bribery, fraud and breach of trust.
“This is part of a general trend toward weaponizing the legal system,” he said. “I think that Benjamin Netanyahu has been similarly victimized, in a different context, but similarly victimized. I do not believe that what Benjamin Netanyahu has been accused of is a felony, a serious crime. That’s the commonality.”
The comments echo a claim pushed by Netanyahu and his supporters, that the prime minister’s alleged misdeeds — accepting expensive gifts and arranging benefits for media moguls in exchange for positive media coverage — are small potatoes and not worth pushing him out of office for.
Dershowitz’s defense of Trump also echoes the White House’s talking points, which maintain that the president cannot be ousted from office because he did not commit an impeachable crime.
“The constitution says that the only grounds for impeachment are treason, it’s not treason, or bribery, it’s not bribery, or other high crimes, it’s not a high crime, and it’s not a high misdemeanor,” he told The Times of Israel. “It’s abuse and obstruction, which are not in the constitution.”
He went on, “He was impeached for abuse of power, and that’s not a crime. That’s not a constitutionally valid criteria. It’s as if somebody were indicted for being dishonest. And then [the prosecutors] had a list of things that led to the conclusion that he was dishonest. You would never get to the list, because dishonesty is not a crime. So you would move in court for a dismissal of the indictment on the ground that it doesn’t charge a crime. That’s basically what we’re arguing.”
One problem: On Monday afternoon, a video emerged from the Clinton impeachment saga in 1998, in which he argued the exact opposite on national television.
“It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty,” he told CNN more than 20 years ago. “You don’t need a technical crime.”
Dershowitz said by phone Monday night that those comments didn’t undercut the argument he’s making now. “I said it didn’t need to be a technical crime,” he said, “and I stand by that.”
He continued, “It has to be akin to bribery or treason. It doesn’t have to technically be bribery or treason, because at the time of the framing, there was no federal criminal code, but it had to be like treason or bribery. It can’t be like abuse of power or obstruction of Congress. I didn’t do the research for that interview because it wasn’t what I was concerned with. Now, I’ve done extensive research.”
House Democrats argued that Trump committed an impeachable offense by withholding military aid to Ukraine to pressure the country into hurting the reputation of his potential political opponent — former vice president Joe Biden — by opening an investigation into his son’s role on the board of a Ukrainian natural gas producer. The lawmakers also say that by refusing to cooperate with Congress, provide subpoenaed documents, and let his underlings testify, he has obstructed Congress.
Neither are in the criminal code because withholding aid from a foreign country and obstructing Congress are not things an average citizen can do, experts say.
“President Trump abused the powers of his office to invite foreign interference in an election for his own personal political gain and to the detriment of American national security interests,” they wrote in a House brief submitted last week. “He abandoned his oath to faithfully execute the laws and betrayed his public trust.”
Capitol Hill legislators kicked things off by battling over whether Senate Majority Leader Mitch McConnell will allow for witness testimony during the trial, including from former national security adviser John Bolton, acting White House Chief of Staff Mick Mulvaney, and others.
McConnell has thus far refused to allow for the testimony, but could be forced to if a majority of 51 senators voted to hear from the witnesses.
Republicans have a 53-seat majority in the Senate, so Democrats had hoped to persuade four GOP Senators to vote in favor of calling the witnesses to participate in the trial: Maine Senator Susan Collins, Alaska Senator Lisa Murkowsky, Utah Senator Mitt Romney and Colorado Senator Cory Gardner.
Dershowitz has sided with McConnell. “If my view is accepted that these are not impeachable offenses, then there shouldn’t be witnesses,” he said. By Tuesday, the calling of witnesses was rejected in a party-line vote, in a possible preview of things to come, but Dershowitz said he’s not taking anything for granted.
“I’ve been in the business too long to ever predict the outcome of a trial, even if you have the numbers on your side, so I think everybody has to treat it as a trial that can go either way,” he said.
Dershowitz said Monday he didn’t only want to get the president acquitted of the charges. He wanted to get them dismissed altogether.
But he admitted the goal was likely a pipe dream and by Tuesday, Justice John Roberts was gaveling the first day of trial to order.
And while the lifelong Democrat has said he doesn’t consider himself as representing the president — “I’m only going to appear on behalf of the Constitution,” he told CNN — he has grand ambitions for what he hopes to accomplish for Team Trump.
“Somebody made a good analogy to my role,” he stated. “They said, I’m on the special teams, and I have the ability to kick the winning field goal.”