Attorney Dershowitz Says Targeting Soleimani Was Constitutional, But Impeachment Is Not

Download Audio
Alan Dershowitz listens to President Trump speak during a Hanukkah reception at the White House on December 11, 2019. (Mark Wilson/Getty Images)
Alan Dershowitz listens to President Trump speak during a Hanukkah reception at the White House on December 11, 2019. (Mark Wilson/Getty Images)

Attorney and professor Alan Dershowitz confirmed he is being considered as an addition to President Trump’s impeachment legal team, although he cannot comment whether or not he has agreed to join.

But Dershowitz can say for sure that he believes Trump has not committed an impeachable offense. In a historic vote, the House of Representatives has approved two articles of impeachment against Trump — abuse of power and obstruction of Congress.

“I think that both of the articles of impeachment violate the Constitution,” he says.

Dershowitz says the basis for Trump’s impeachment does not meet the criteria the founders set in place for removing officials from office.

“I'm not opposed to impeachment, but I strongly oppose impeachment on grounds like obstruction of Congress or abuse of power,” he says. “Those are not in the Constitution, and the framers would never have accepted that in the Constitution.”

Just days before the airstrike that killed Iranian Maj. Gen. Qassem Soleimani, Trump was spotted in a buffet line at his Florida resort, Mar-a-Lago, chatting with Dershowitz.

He says the two “exchanged holiday greetings and our families met.”

Trump did not bring up his future plans to assassinate Soleimani, he says, adding he believes the president’s actions against the top Iranian commander were legal.

“In this case, it was clearly legal under both international law and American constitutional law,” he says. “And the question of whether it's good policy, only time will tell.”

Interview Highlights

On whether he discussed Iran with Trump at Mar-A-Largo

“No, we just exchanged holiday greetings and our families met. I was there with another couple. I was their guests. And I just ran into the president on the buffet line. And we didn't really talk any substance. Certainly never mentioned Iran. That's not something he would confide in me if he was planning to do an attack like this. I don't even have security clearance.”

On his knowledge of the legality of targeted killings

“I am an expert on the use of targeted killings and a strong supporter of targeted killings of terrorists and ongoing terrorist situations. But it's not something the president discussed with me. I wrote a piece for The Wall Street Journal yesterday, and I've been talking about what I believe is the strong case for the legality. I don't take a position, particularly on the long-term wisdom of the action. But I think the legality is not even a close question. I think it was more legal, if anything, than the killing of Osama bin Laden, because the Osama bin Laden killing was not preventive. It was vengeance. It was getting even with a massive criminal that was justified, but it was justified on different grounds. The Soleimani case is a much stronger case for preemptive or preventive targeted killing.”

On whether Trump made the right decision by ordering the killing of Soleimani

“I think that's reasonable. People could disagree about that. But I don't think anybody should conflate the policy arguments with the legal arguments, and many people do that. Something could be illegal and good policy and something could be legal and bad policy.”

On the articles of impeachment against Trump

“I believe there's been no impeachable offense. So I think that both of the articles of impeachment violate the Constitution. Abuse of power is something that's been a charge against every president since John Adams, and the framers explicitly rejected broad criteria for impeachment, such as maladministration. And I think concluded with that would be abuse of power. The second article of impeachment, obstruction of Congress, is just completely made up. President [Trump] didn't obstruct Congress by simply demanding that there be court orders before subpoenas are complied with, and one can argue that the speaker of the House is obstructing the Senate by not sending the articles of impeachment. I don't think those kinds of metaphorical accusations should rise to the level of impeachment, and I don't think they do as a matter of constitutional law.

“And I've said the same thing going back to the impeachment of [Richard] Nixon, the impeachment of [Bill] Clinton. I've been very opposed to impeachment from the 1970s. I was on the national board of the [American Civil Liberties Union] and I opposed the ACLU seeking the impeachment of Richard Nixon, even though I personally favor the impeachment of Nixon. I thought they should be there defending his constitutional rights and opposing his being named as an unindicted co-conspirator, which doesn't give anybody the opportunity to prove their innocence. So I put civil liberties before impeachment, unlike the ACLU, which puts politics before civil liberties.”

On impeachment criteria

“Nothing's wrong with impeachment. I support impeachment being in the Constitution. I think the criteria for impeachment have to be satisfied. There were two debates at the constitutional convention. One, should there be impeachment of a president at all? [James] Madison strongly supported that. And then what should the criteria be? And Madison demanded that the criteria be quite rigid. He rejected maladministration. He said he didn't want to turn the United States into a British-type Parliament where a president serves at the will of Congress or a legislature and you can simply have a vote of no confidence. So he was very tough on what the criteria ought to be, and the criteria simply aren't met.”

On Constitutional law professor Michael Gerhardt, who testified in favor of impeachment before the House Judiciary Committee in December

“Well, [Gerhardt] is confusing the debate over whether we should have impeachment. He's right that this is the kind of conduct that the framers said requires that we have an ability to impeach the president. But when the second part of the debate came about, what should the criteria be? Everything changed. And Madison was very determined to make sure that the criteria did not include a material like this. Look, I don't believe that my colleagues passed the shoe-on-the-other-foot test. I don't believe that if Hillary Clinton had been elected president and she were being impeached for the emails or whatever, I do not believe my colleagues would be favoring impeachment. I think they have put politics before constitutionality.”

On if he thinks the Senate trial should proceed immediately

“I do. I think that removal and impeachment are part of the same process, and it would be unconstitutional for the House to impeach and refuse to send the articles. It's all part and parcel. It would be like a prosecutor saying, 'Look, I'll never get a jury to convict this guy. Let's indict him. Let's have the indictment hang over his head for the rest of his life. But we'll never bring him to trial.' I believe the articles of impeachment will be sent and there will be a trial. What the nature of the trial is, will obviously be up to the Senate.”

On coming up with evidence against an accusation by a woman who says when she was a teenager, Dershowitz sexually assaulted her when she was with Jeffrey Epstein (Dershowitz is countersuing her and recently published a book called “Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo.”)

“I have her emails in which she admits she never met me. This is the only #MeToo case in which the accuser never met the accused. She is a person with a long, long history of lying. And I have her emails and I have a tape recording by her own lawyer, her agent, in which the lawyer says she's wrong, simply wrong. It would have been impossible for you to have been in the places she said she met you. He didn't know he was being recorded when he made that admission to me. But that admission on tape is gonna be very, very important at trial.

"This is not a story about whether a person consented or whether there was harassment. This is the story of a woman who from the beginning made it up out of whole cloth in order to earn money. This is a woman who, if her lawyers encouraged her to tell the full story ought to be disbarred. All of this will come out at the trial. And if it's proved that there was extortion and there was subordination of perjury, there have to be consequences. You know, the problem in our country is you can make a false accusations under oath and nobody gets indicted for perjury. In other countries, people who make false accusations are indicted for perjury. And I want to change the law to make sure the woman who falsely accused me is prosecuted for perjury. I ask the FBI to come to the trial to listen to both of our testimony because one of us is committing perjury and it's clearly not me. I have the absolute proof that I'm telling the truth and she made up those stories. So I'm looking forward to the trial.”

On whether or not he was aware of the sexual assaults Epstein is accused of

“All the people who knew Jeffrey Epstein in an academic capacity went to conferences at Harvard, as I did, none of us had any inkling that he was doing anything wrong. I first learned of any of these allegations when he asked me to be his lawyer and then served as his lawyer in a professional capacity. I did absolutely nothing wrong in relation to Jeffrey Epstein. Zero. Nothing. I never had any personal friendship with him after the allegations came out. Look, since the day I met Jeffrey Epstein, I've had sex with one woman, my wife, period. And any allegation to the contrary is totally and completely false.”

Julia Corcoran produced and edited this interview for broadcast with Todd MundtSerena McMahon adapted it for the web.

This segment aired on January 7, 2020.


Headshot of Jeremy Hobson

Jeremy Hobson Former Co-Host, Here & Now
Before coming to WBUR to co-host Here & Now, Jeremy Hobson hosted the Marketplace Morning Report, a daily business news program with an audience of more than six million.



More from Here & Now

Listen Live