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

00:00:00.420 Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.

00:00:11.580 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:15.100 Oh, do we have a treat for you today, and one you will not see or hear anywhere else.

00:00:21.660 Two of America's most prominent constitutional and legal scholars,

00:00:26.440 Professor Alan Dershowitz and Professor Lawrence Tribe.

00:00:30.920 I'm psyched for this.

00:00:32.840 These are two brilliant guys, brilliant.

00:00:35.680 Dershowitz is not a righty.

00:00:38.020 He doesn't really support President Trump, but he argues like he does

00:00:41.720 and really thinks this whole impeachment that we're going through right now is unsound legally,

00:00:47.120 and Tribe feels exactly the opposite.

00:00:49.860 I think politically he is left, but more importantly,

00:00:52.380 he's on the leftist side of this argument as a legal matter.

00:00:56.440 He's even advising the House Democrats and did on their brief and the proceedings

00:01:00.940 and has some inside information and a heads up on the evidence they're going to present

00:01:05.320 that I found really interesting.

00:01:06.860 So we're going to get into all of that.

00:01:08.320 But just so you know who you're listening to today, okay?

00:01:11.660 We're first going to talk to Lawrence Tribe.

00:01:13.080 He's sort of the prosecution, right?

00:01:14.520 That's the House Democrats are basically the prosecution in the Senate.

00:01:18.640 It's weird.

00:01:19.260 Lawrence Tribe entered Harvard at age 16 in 1958.

00:01:23.860 He graduated summa cum laude with a degree in mathematics four years later.

00:01:28.420 He clerked for the U.S. Supreme Court, goes back to Harvard, gets tenure at age 30.

00:01:33.700 He's taught at Harvard Law since 1968.

00:01:35.840 He's written 115 books and articles, including his treatise, American Constitutional Law,

00:01:42.200 which has been cited more than any other legal text since 1950.

00:01:45.300 He was part of Al Gore's team in 2000.

00:01:48.780 That one didn't work out particularly well.

00:01:50.920 He's argued in front of the Supreme Court 35 times and really is one of the most respected

00:01:56.800 professors at Harvard.

00:01:57.800 So that's Lawrence Tribe.

00:01:59.400 And you, if you only watch Fox News, you may not know him because he's mostly on MS and CNN,

00:02:03.980 right?

00:02:04.140 Because he's more left-leaning and you know how the cable news wars go.

00:02:06.880 But he's brilliant and you should listen to him and he's going to give you a good overview

00:02:10.000 of what to expect.

00:02:10.740 Then we're going to get to Alan.

00:02:13.120 Alan Dershowitz, you know, he's best known for his work in criminal law, but also constitutional

00:02:17.740 law.

00:02:18.340 He graduated from Yale Law School in 1962.

00:02:22.620 He clerked for the Supreme Court.

00:02:24.860 Then he went to Harvard Law School, that's the faculty, at age 25.

00:02:28.500 He received tenure at 28.

00:02:30.920 In 2013, he retired.

00:02:33.120 He became emeritus at Harvard, retiring after 50 years.

00:02:36.460 And he has been maybe not as prolific in front of the Supreme Court as Lawrence Tribe, but

00:02:41.640 he has been trying real cases and really dealing with the appellate issues on real cases, some

00:02:46.400 of the most famous and infamous of our time, right?

00:02:48.440 Of course, you know, O.J.

00:02:49.360 Simpson, Julian Assange, Jeffrey Epstein, Klaus von Bülow.

00:02:52.920 They made a whole movie, Reversal of Fortune, about that one.

00:02:55.840 Patty Hearst.

00:02:56.520 I could go on.

00:02:57.780 Last year, he was part of former President Trump's legal team in Trump's first impeachment

00:03:03.220 trial, but he's not helping him in this impeachment trial.

00:03:06.720 But Dershowitz, above all, is a fierce defender of freedom of speech and individual rights.

00:03:13.180 So this is a clash of the titans, and I get to moderate it, and you get to be the judge.

00:03:17.980 I'll tell you what my rulings are, but you really get to be the judge.

00:03:20.780 And you, again, will not be hearing this anyplace else.

00:03:24.080 I want to tell you just an overview before we get to it.

00:03:26.180 Of course, the impeachment trial is now going, right?

00:03:28.400 The House leaders, Representative Jamie Raskin is basically the lead House impeachment

00:03:32.600 attorney, the prosecutor.

00:03:34.300 They want Trump to testify.

00:03:36.260 He's told them they can pound sand.

00:03:38.540 He doesn't want any part of a proceeding that his team says is unconstitutional.

00:03:42.300 The Senate Democrats, they actually weren't really 100% behind the request to try to get

00:03:46.740 Trump to testify, so I don't think they're going to pursue it more, but we'll see.

00:03:49.880 We're going to see evidence, including some you'll hear about today.

00:03:55.420 And you're going to hear a lot from the Republicans about how this whole thing is a political

00:03:58.880 stunt, and it's improper because Trump is no longer in office.

00:04:02.820 So we're going to get into all of it.

00:04:04.180 The polls, by the way, 50-50 down the middle on whether the American people support conviction.

00:04:10.480 GOP, 86% say no, he shouldn't be convicted.

00:04:14.740 Democrats, 86% say yes, he should be.

00:04:17.520 Independent split 49-45, yes and no, whether he should be convicted.

00:04:21.960 Overall, it's half, half and half want a conviction versus don't, and that is how we go into this

00:04:29.460 crazy event, the second impeachment trial of a president who's already been removed from

00:04:36.600 office.

00:04:37.200 It doesn't get weirder than this.

00:04:39.360 Okay, we'll get to our professors in just one second, but first, let's talk about Grove.

00:04:46.400 Grove Collaborative.

00:04:48.280 Are you like me?

00:04:48.960 Do you want to do something good for the environment, but you don't want to have to

00:04:51.840 like search through which products are actually good, you know, like from dog food to cleaning

00:04:56.260 fluids?

00:04:56.760 It's like, I don't really know which ones are going to be good.

00:05:00.380 One-stop shopping at Grove Collaborative.

00:05:03.600 70% of people say they want to use natural products.

00:05:06.280 Only 2% actually do it.

00:05:08.040 Why?

00:05:08.420 Because what they sell in store is from the biggest companies and not necessarily the

00:05:12.860 ones that are best for you or that you're going to like.

00:05:15.100 So you go to Grove Collaborative to figure it out.

00:05:17.500 They've got healthy, plant-based, non-toxic cleaning products.

00:05:22.700 Where do you start?

00:05:23.540 Who do you trust?

00:05:24.620 Grove Collaborative.

00:05:25.540 There you go.

00:05:26.300 It's the online marketplace for sustainable home essentials.

00:05:29.100 They deliver right to your doorstep.

00:05:30.900 Take the guesswork out of going green by browsing their site for thousands of home, beauty, and

00:05:35.420 personal care products, all guaranteed to be good for you and your family and your home.

00:05:39.480 And you don't have to shop multiple stores to get them or search endlessly online to get

00:05:43.140 all the natural goods you want for your family.

00:05:44.860 Just join over 2 million households who have trusted Grove Collaborative to make their homes

00:05:49.500 happier and healthier.

00:05:50.720 Plus, the shipping's fast and free on your first order.

00:05:52.980 So make your home healthier this new year.

00:05:55.060 For a limited time, when my listeners go to grove.co.mk, you'll get a free Mrs. Myers

00:06:02.900 gift set.

00:06:03.960 If you don't know what that is, go ahead and place your order and you'll find out.

00:06:07.200 Plus, free shipping with your first order.

00:06:09.900 A $30 value.

00:06:11.000 But you have to use our special code.

00:06:12.900 Go to grove.co.mk to get this exclusive offer.

00:06:17.560 That's grove.co.mk.

00:06:20.640 And now, Professor Lawrence Tribe.

00:06:24.960 Thank you so much for being here.

00:06:27.060 Thank you, Megan.

00:06:28.260 Okay.

00:06:28.880 So let's start simple.

00:06:30.980 The Republicans are objecting to this whole thing by saying he's out of office.

00:06:37.860 You can't impeach and, quote, remove a president who's already been removed by the people of

00:06:46.360 the United States.

00:06:47.180 So this entire thing is out of order.

00:06:50.840 What's your take on it?

00:06:52.720 Well, my take is that he was impeached by the House of Representatives while he was still

00:06:58.240 president, and the Senate is not trying to remove him.

00:07:03.000 They know that they can't remove him.

00:07:04.840 He's already removed.

00:07:06.420 What they're trying to do is convict him and disqualify him from holding future office.

00:07:12.780 And that's one of the things the Constitution specifically says you can do.

00:07:17.640 It says that the House has the sole power of impeachment.

00:07:21.840 The House impeached him.

00:07:22.960 No one doubts that that was okay.

00:07:24.560 And then it says the Senate has the sole power to try impeachments.

00:07:31.020 No one doubts that it is about to try an impeachment.

00:07:35.140 That's why of all of the scholars in the country, the overwhelming majority thinks that there is just

00:07:43.360 no basis for the argument that the Senate cannot conduct this trial.

00:07:49.160 And in fact, the Senate has in the past conducted trials of people who were no longer in office.

00:07:57.800 And that's exactly what's going to happen here.

00:08:00.180 Okay, but let me just stop you there because that's, as far as I know, all lower officials

00:08:06.240 with respect, right?

00:08:07.480 We're not talking about the president.

00:08:09.560 And that's, I think, where they draw the line because they say this is different when it's

00:08:13.840 the president.

00:08:14.840 And what they argue, the people who say this whole thing's out of order,

00:08:18.560 not constitutional, is you can only do this to a president who can be, quote, removed and

00:08:29.240 disqualified.

00:08:30.620 They say those two things are not severable.

00:08:34.220 So once it was no longer possible to remove him, it was no longer possible for you to have

00:08:41.180 a trial where you could potentially disqualify him.

00:08:45.140 What do you think?

00:08:45.980 I think the answer to that is that it doesn't really make sense.

00:08:50.940 Because if that were true, then whenever you convict and remove a sitting president,

00:08:59.160 at that point, he's no longer a sitting president.

00:09:03.540 The question at that point before the Senate is, what shall we do with this ex-president?

00:09:10.900 He's now a private citizen.

00:09:12.440 Should we disqualify him as the Constitution gives us the power to do or not?

00:09:18.500 That is basically a sentencing proceeding.

00:09:21.600 It might take hours.

00:09:23.560 It might take days.

00:09:24.740 It might take weeks.

00:09:26.180 During all of that time, the Senate is engaged in finishing up the trial of an ex-president.

00:09:34.340 That is, again, why conservative, as well as liberal scholars, have concluded that there

00:09:42.020 is just no basis for saying that removal and disqualification are inseverable.

00:09:49.240 In fact, a friend of mine, though, on the opposite side of me, ideologically, Chuck Cooper, who

00:09:57.100 was the head of the Office of Legal Counsel in the Reagan Justice Department, and who is

00:10:04.660 a very esteemed conservative scholar, concluded just yesterday in the Wall Street Journal that

00:10:13.160 even those senators who went along with Rand Paul in his procedural motion a little while

00:10:20.020 ago, where 44 senators joined him in saying there really shouldn't be a trial at all, he

00:10:27.460 thinks that now that opinion has been expressed across the board, those senators should, and

00:10:35.840 he thinks, in some cases, will reconsider.

00:10:39.820 In fact, there is a kind of paradox.

00:10:42.760 If they are right that there is no power on the part of the Senate to conduct this trial,

00:10:49.680 that it's unconstitutional, they should stay home.

00:10:53.280 But they're not going to do that.

00:10:55.040 The reason they're not going to do that is that all it takes to convict the president is

00:11:00.040 two-thirds of the senators who don't stay home.

00:11:02.960 And they certainly don't want that to happen.

00:11:06.620 Finally, there's another paradox, Megan, that intrigues me.

00:11:11.000 The president is trying to have it both ways.

00:11:13.720 He's saying, on the one hand, the evidence is really not very clear that I lost this election.

00:11:20.200 You want to treat me as the president.

00:11:22.360 He never refers to himself as the former president.

00:11:26.160 He is the 45th president of the United States.

00:11:29.060 So he's basically saying, I'm still president.

00:11:32.840 But on the other hand, because I'm not president, you can't try, convict, and disqualify me.

00:11:40.580 Well, which is it?

00:11:42.440 I think both branches of that are wrong.

00:11:44.540 He isn't the president anymore.

00:11:46.080 But he was impeached when he was the president.

00:11:49.800 Though he can't be removed any longer, he can be disqualified.

00:11:53.900 And the framers were particularly concerned.

00:11:56.360 There's plenty of evidence of this in the Constitutional Convention and in the Federalist

00:12:01.100 Papers with tyrannical presidents who, at the very end of their term, would contrive to hold

00:12:10.640 on to power, even if their term was supposed to be over because they lost the election or

00:12:16.180 because of term limits that we've put into the Constitution.

00:12:19.540 And it's at that very end, during January, which is going to happen every four years,

00:12:26.200 that period between when the Congress counts the electoral votes and the president has to

00:12:31.600 leave office.

00:12:32.200 If during that time, the president storms the Capitol, does all kinds of damage in order

00:12:39.880 to stay in power, if there were a kind of January exception during which, unless the Senate can

00:12:46.520 get it together to hold a trial and finish the trial before the end of the term, if at that

00:12:52.820 point, that person cannot be disqualified from holding future office, then a very basic part

00:13:00.100 of the Constitutional design is frustrated.

00:13:02.720 So I think for all those reasons, in terms of the purposes of the disqualification power

00:13:08.660 and in terms of the Constitutional text and in terms of the history, although, as you say,

00:13:15.880 we've never done this with a former president before, but we've done it with former secretaries

00:13:20.820 of war.

00:13:22.560 For all those reasons, I think there just is very little to be said for this proposition that

00:13:29.800 the Senate has no constitutional power to try, convict, and disqualify Donald Trump.

00:13:37.240 Okay.

00:13:37.800 A couple of points in there.

00:13:39.260 It's basically a political process, not a legal one.

00:13:42.260 And so the senators get to decide whether this is proper or not proper.

00:13:47.480 And right now, they've decided it's proper, right?

00:13:50.060 The 45 Republicans have said it's not.

00:13:52.680 Five Republicans said we're good.

00:13:55.040 So right now, it's happening, right?

00:13:56.840 We should start with that.

00:13:57.540 It's happening.

00:13:58.500 But the Republicans are just sort of holding on to a procedural argument saying, you're

00:14:02.660 out of order.

00:14:03.700 You're out of order.

00:14:04.920 We shouldn't even be here because this is not an appropriate proceeding.

00:14:08.520 They're likely at the very end, you know, to rely on that to justify their acquittal because

00:14:13.400 they don't want to approve what he did.

00:14:15.540 Right.

00:14:15.720 And they could also potentially, I mean, there's a question being circulated in legal circles

00:14:19.960 right now about whether they could go to a federal district court to say, you know,

00:14:23.840 this whole thing's out of order.

00:14:25.000 We want a ruling saying, but like, that's probably not going to happen.

00:14:27.320 Okay.

00:14:27.540 So a couple, another, another point.

00:14:29.520 I think Trump has the argument that he's still president.

00:14:32.680 He can't both be saying he's president and then be saying I wasn't, I've left and can't

00:14:36.440 be removed.

00:14:36.960 I don't buy that one because he's now, he's now accepted that, uh, he lost though.

00:14:42.900 He says it was unfair and he says it was rigged, but I don't think he's still claiming

00:14:46.560 to be president at this hour.

00:14:48.740 But the other thing I wanted to say is there are legal, there are respected legal authorities.

00:14:53.680 I think I read in a piece you wrote that, uh, judge Michael Ludig, you know, former, uh,

00:14:58.300 fourth circuit federal court of appeals judge says Trump cannot be removed here.

00:15:02.200 And therefore this is effectively an improper impeachment.

00:15:05.900 He does say that.

00:15:07.520 In fact, he and I respect each other.

00:15:11.160 Each of us thinks the other is a pretty bright fellow.

00:15:15.240 And I can't say that no one of any seriousness accepts the other view because judge Ludig is

00:15:23.180 pretty serious.

00:15:24.740 Yeah.

00:15:25.280 There are only three people I know, I guess.

00:15:28.320 Well, judge Ludig is one.

00:15:29.860 There's a professor at Columbia, another, and I forgot who the third is out of hundreds

00:15:34.920 who take that view.

00:15:36.380 And I know it's not a matter of nose counting, but all I can say is I think this is the way

00:15:41.080 I've read the constitution for years.

00:15:42.940 It's the way other people have read it.

00:15:44.740 I think it's the right reading.

00:15:46.200 And in any case, as you say, it's a political question and a majority of the Senate, which

00:15:50.820 has the say here, the final say is going to say that it does have the power to conduct

00:15:55.560 this.

00:15:55.860 But they've decided they've got it.

00:15:58.120 A quick question for you, because we're going to talk to Alan Dershowitz in a bit.

00:16:02.040 And his point on this point, I want to sort of preemptively get this to you, is he says,

00:16:07.920 look, in some countries, defeated former presidents and prime ministers are routinely

00:16:11.900 prosecuted.

00:16:13.160 We go after them a lot.

00:16:14.700 And he says, our countries really live more in accordance with President Lincoln's message

00:16:18.540 after the Civil War, with malice toward none, with charity for all, with firmness in the

00:16:24.780 right as God gives us to see the right.

00:16:28.300 Let us strive on to finish the work we are in to bind up the nation's wounds.

00:16:32.120 His argument is we're just not the country that goes after former presidents.

00:16:36.840 They lose.

00:16:37.540 They move on.

00:16:38.240 If they've committed a crime, they could get prosecuted.

00:16:40.120 But in general, we let it go.

00:16:43.060 And this is sort of a dangerous precedent to start, whether it be a president or lower

00:16:48.520 officials like Hillary Clinton or Nancy Pelosi or who else are we going to start to say,

00:16:53.920 you know, Barack Obama, you committed impeachable.

00:16:56.300 Let's get you to, you know, he's saying slippery slope.

00:16:59.520 Well, I have a couple of answers to that.

00:17:01.140 I mean, the first is we're not talking about turning back the clock and going out for somebody

00:17:06.500 in the distant past.

00:17:07.980 We're talking about somebody who basically ran out the clock but was impeached on the 13th

00:17:13.840 of January, just a week after he presided over the storming of the Capitol, and we are simply

00:17:21.680 talking about completing that trial.

00:17:24.680 The other point I'd make is that the real problem with Banana Republics isn't that they

00:17:30.800 finished the trial of someone who basically engaged in an almost successful coup, but that

00:17:38.460 they used the criminal process to do what my friend Alan Dershowitz sometimes says is really

00:17:45.600 scary, and that is to criminalize politics.

00:17:48.960 They used the criminal process to go after former officials.

00:17:53.160 Well, it's exactly what people like Alan and others say we ought to do with respect to this

00:18:00.560 president.

00:18:00.940 Namely, to hold him accountable, you should not convict and disqualify him in the Senate,

00:18:08.100 but you should use the processes of the Justice Department.

00:18:12.200 They even cite chapter and verse, 18 U.S.C.

00:18:15.340 Section 2383 for insurrection and rebellion, 18 U.S.C.

00:18:21.700 Section 2384, making it a crime to engage in seditious conspiracy.

00:18:26.480 You know, when he was president, Donald Trump claimed that he was immune because of an Office

00:18:32.700 of Legal Counsel memorandum to prosecution, but no one suggests that he is immune to criminal

00:18:39.740 prosecution now.

00:18:41.540 And indeed, the Constitution says that whoever is put on trial in the Senate, whatever the

00:18:47.540 result, shall be nonetheless liable and subject to indictment, trial, judgment, and punishment

00:18:53.420 according to law afterward.

00:18:54.740 You're saying if the country wanted to punish him criminally, that now we're getting into

00:19:00.520 banana republic stuff, but following the Constitution for impeachment and its related

00:19:06.200 punishments is not banana republic stuff.

00:19:09.240 Well, I think in this case, it wouldn't be banana republic stuff, even if they went after

00:19:13.740 him criminally.

00:19:14.500 But at least at that point, we'll be able to weigh the political pros and cons of turning

00:19:20.080 a page and not holding him criminally accountable.

00:19:23.280 But the point of what's going on now is not to punish him.

00:19:26.740 This isn't vindictive.

00:19:28.260 The point is protective.

00:19:30.440 All of the framers of the Constitution made clear that the purpose of the impeachment power

00:19:35.900 is to get rid of somebody who's really a danger to the country.

00:19:40.420 Get rid of them by removing them if they're still in office or by disqualifying them if they're

00:19:46.000 not.

00:19:46.340 And in fact, in Section 3 of the 14th Amendment, there's a specific provision that says that

00:19:52.100 anybody who takes an oath to uphold the Constitution and then engages in insurrection or rebellion

00:19:59.340 should never again hold state or federal office.

00:20:03.120 It's not because that's a punishment.

00:20:05.380 It's because it's believed that people like that, people who commit treason, bribery, or

00:20:12.220 other high crimes and misdemeanors, especially when it's in the form of insurrection and rebellion,

00:20:18.540 have shown that they are capable of gathering a mob that, against the will of the majority

00:20:26.040 of the people, might nonetheless hold on to power in a tyrannical way.

00:20:31.020 Can I ask you a question about that?

00:20:34.080 Some people think that that provision is going, if it gets used effectively here against Trump,

00:20:40.400 it's going to be used also to go after people like Ted Cruz and Josh Hawley,

00:20:45.200 trying to say that they fomented an insurrection and they too should be prohibited from remaining

00:20:52.100 in the public square.

00:20:53.620 I frankly doubt, even though I don't hold any admiration at the moment for Senators Cruz

00:21:00.360 or Hawley, I don't think they were guilty of insurrection or rebellion.

00:21:04.640 I think they took a ride on the incitement of this president and made it more difficult

00:21:12.660 for our government to have a smooth and peaceful transition.

00:21:17.180 But if a procedure were set in place for a federal court to decide who was guilty after

00:21:24.400 taking the oath of office of guilty of insurrection and rebellion, I suppose they could be subjected

00:21:31.660 to that process, but I don't think they would be convicted under it.

00:21:35.420 I know Ted Cruz was your student at Harvard Law School.

00:21:38.500 I don't know about Hawley, but there's a push by some at Harvard to revoke their Harvard degrees

00:21:44.000 because of their recent behavior.

00:21:46.900 Do you support that?

00:21:47.720 No, I do not.

00:21:49.400 I think that kind of cancellation, I mean, I don't want to get into the whole issue of

00:21:55.720 cancel culture, but I don't believe in erasing the past just because you think it didn't quite

00:22:03.860 work out the best way.

00:22:05.200 I'm proud of some of my former students, John Roberts, Barack Obama, Elena Kagan, Jamie Raskin,

00:22:12.020 Adam Schiff.

00:22:13.380 I'm not as proud of Ted Cruz, but I have no desire to go back and take away degrees.

00:22:20.460 I think that's really gross.

00:22:22.440 It's so fun to think of John Roberts or Barack Obama sitting in your class.

00:22:25.980 Did you, could you tell, I mean, honestly, give me an honest answer.

00:22:28.660 Could you tell these are future stars, like more than the average Harvard Law student?

00:22:33.260 Yeah, the honest answer is I could.

00:22:34.900 I mean, especially with Barack, because he was my research assistant for two years.

00:22:39.060 He was brilliant.

00:22:39.620 It was obvious from his performance in class that John Roberts was brilliant, but he was

00:22:46.000 so modest and I didn't get to know him as well, but I certainly thought he was a star.

00:22:52.820 I have to say, honestly, I had no idea that Barack Obama would be a politician, though,

00:22:58.920 because he was, you know, he was more like a judge.

00:23:01.780 He would weigh, he would balance on the one hand.

00:23:04.360 On the other hand, I could see him being a professor or a judge, but not until I heard

00:23:10.580 his convention speech in 2004 did I see the potential of national political leadership

00:23:18.820 in him.

00:23:20.100 Now, Elena Kagan is a different case.

00:23:22.900 I thought she was extremely smart.

00:23:25.220 And again, I imagine she might be a judge.

00:23:27.340 And lo and behold, she is Jamie Raskin and Adam Schiff.

00:23:32.960 Very, very bright.

00:23:34.020 But I had no idea that either of them would go into politics.

00:23:37.540 It's so funny.

00:23:38.180 When I look at Chief Justice John Roberts, I feel like he was born in his little cradle

00:23:41.980 with a with a robe on.

00:23:43.640 I he's like, if you've seen Boss Baby.

00:23:46.620 Yeah, I can just see that sort of a, you know, all these babies always have these pink and

00:23:55.040 blue and white blankets.

00:23:56.320 But I suppose we could invent a black blanket for the future judges and they have to have

00:24:01.660 a little miniature gavel.

00:24:03.820 Totally.

00:24:04.260 Well, here on the Upper West Side of Manhattan, you can get a little onesie for your baby daughter

00:24:08.240 with a Ruth Bader Ginsburg doily type, you know, collar.

00:24:12.680 Right.

00:24:13.120 I can imagine.

00:24:14.520 Anyway.

00:24:14.960 So, OK, so thank you for that digression.

00:24:17.380 But I did wonder.

00:24:18.640 Oh, and one other question on them.

00:24:20.020 What about the push to disbar them?

00:24:22.140 Some want them disbarred.

00:24:24.020 Well, that maybe, maybe.

00:24:25.960 I certainly think that some of the lawyers like Giuliani, who filed things that had absolutely

00:24:31.800 no merit and no factual or legal basis, they really have made themselves eligible for disbarment.

00:24:39.360 I don't really think that, you know, I don't have a clear view of whether disbarment is an

00:24:46.740 appropriate thing to do for somebody whose malfeasance or or neglect of duty had nothing

00:24:54.320 to do with with lawyering as such.

00:24:57.920 So I'm not at all sure about disbarment for guys like like Holly and Cruz.

00:25:04.140 But a question for you on that.

00:25:05.680 It's been it's been a while since I practiced law, but when I practiced law,

00:25:09.360 back in the dark ages, you would handle unethical filings with at the federal level, a rule

00:25:15.920 11 motion, which is basically a request to the judge to sanction this lawyer for filing

00:25:22.920 something that is so unsupported, so baseless that it's laughable.

00:25:26.200 But I mean, you would the push to disbar somebody, you know, they always they can always say they

00:25:32.220 had a colorable argument.

00:25:34.720 You know, I mean, that's that's the save for the most extraordinary like to the Ted Cruz

00:25:39.760 job.

00:25:40.240 It's not arguable.

00:25:41.460 Those guys don't they're not even close to the line on disbarment.

00:25:44.800 But what about Giuliani?

00:25:45.800 I mean, filing one thing after another that we're not even colorable.

00:25:50.060 It's not just a single violation of rule 11.

00:25:53.120 It's using the legal process in a way that is just fairly perverse.

00:25:58.580 I don't blame Trump himself, really, for wanting to exhaust all possible legal remedies.

00:26:05.940 I do blame him after losing all those cases for sort of twisting the arm of the Georgia

00:26:13.680 Secretary of State, Roethlisberger, to, quote, find, unquote, you know, a bunch of a bunch

00:26:19.780 of ballots just enough to overcome the gap by which he lost that that was going too far

00:26:27.560 and certainly riling up a mob to sort of go wild and and attack the Capitol.

00:26:34.460 Well, that went too far.

00:26:37.080 But the people that I do blame for all those lawsuits are the ones who kept making the same

00:26:43.560 arguments over and over again and being told by one judge after another, including Trump

00:26:47.960 appointees, that these are frivolous arguments.

00:26:51.460 They are not based on fact.

00:26:53.940 The law doesn't back them up.

00:26:56.400 I think rule 11 is not enough to deal with serial abuse of that kind.

00:27:00.620 Well, and because the thing is, lawyers are officers of the court.

00:27:05.060 They're officers of the court and they have a higher duty when they're in there to the

00:27:09.900 truth, to the process, to the judge, to not present misinformation.

00:27:14.460 You know, there's all sorts of obligations you have in dealing with a judge that you don't

00:27:17.800 have in dealing with the court of public opinion.

00:27:20.980 And, you know, I too have been I've been shocked to see the behavior of the lawyers.

00:27:25.280 I have to say, especially Sidney Powell, who I she's like, I mean, forgive me, professor,

00:27:30.580 but she's kind of she's been kind of a badass appellate lawyer.

00:27:33.860 And that's why when she started doing the Dominion stuff, I was like, I'm going to listen.

00:27:39.560 I'm just going to listen and see what she's got, because I respect Sidney Powell's lawyering

00:27:44.560 abilities.

00:27:45.620 And then you could sort of see the facade crumble.

00:27:47.680 But were you shocked to see that happen with her?

00:27:50.960 Yeah, I was very surprised.

00:27:52.940 I mean, I do think she is, as you say, a badass appellate lawyer, a serious, aggressive lawyer.

00:27:59.120 And when she started making some of the claims she did in in the cases where she sort of joined

00:28:07.040 arms with Rudy Giuliani, I just my jaw dropped.

00:28:10.820 I just couldn't believe it.

00:28:12.680 Yeah.

00:28:13.300 OK, so let's get down to brass tacks and talk about the charges.

00:28:16.340 So we've talked about whether any charges are appropriate, given the fact he's no longer

00:28:20.980 in office.

00:28:21.900 And and now let's talk about what they're actually charging him with and whether it's

00:28:27.100 appropriate.

00:28:27.420 So it's basically one count that they're saying he incited an insurrection.

00:28:32.180 President Trump did.

00:28:33.340 And did his behavior, did his language qualify as as inciting an insurrection?

00:28:40.400 Do you think that he incited that he incited legally?

00:28:45.720 Let's do legally as opposed to just, you know, as a moral matter under the Supreme Court

00:28:50.280 test of Brandenburg, which controls the standard on incitement.

00:28:54.420 Do you think he legally incited an insurrection?

00:28:58.260 First of all, if this were a criminal trial and he offered a First Amendment defense saying

00:29:04.960 I was just advocating the crowd in front of the White House go and do something like I'm

00:29:12.600 unclear what they were supposed to do other than storm the Capitol.

00:29:18.040 But if that were the issue and it was a criminal trial, I think this would probably qualify as

00:29:24.700 incitement.

00:29:25.280 I think it would qualify as incitement in a criminal context, partly because of lots of stuff that

00:29:33.640 the president said and did in bringing these people to Washington and then aiming them

00:29:39.180 directly at the Capitol and making statements like, if you're not really, if you don't fight,

00:29:46.600 you're not going to have a country anymore.

00:29:48.560 When he says in the papers filed by his lawyers that that just meant he was in favor of election

00:29:54.620 reform, I think that doesn't quite meet the laugh test.

00:29:58.000 So he was, I think, stirring up an angry mob, an armed mob, aiming them straight at the

00:30:04.520 Capitol.

00:30:05.160 And if this were a criminal trial, I think the Brandenburg test would be met.

00:30:09.880 But the reason I think there's another equally important, maybe more important point is that

00:30:15.880 this isn't a criminal trial.

00:30:17.360 This is an impeachment proceeding.

00:30:19.440 And he's not an ordinary private citizen like the Ku Klux Klan guys who were involved in

00:30:24.780 Brandenburg.

00:30:25.440 He was speaking in front of the White House, in front of the presidential seal as the president

00:30:31.920 of the United States.

00:30:33.560 And the people who stormed the White House one after another were saying, we're here because

00:30:39.340 our president told us to come here.

00:30:41.900 I don't think the president of the United States is in a position to invoke the shield of the free

00:30:48.180 speech clause in quite the same way as an ordinary citizen.

00:30:51.360 The reason I say that is-

00:30:53.180 Let me stop you there.

00:30:53.820 Let me stop you there.

00:30:54.540 Let me stop you there just to keep it nice and clean.

00:30:56.800 This is exactly the conversation I want to be having.

00:30:59.060 Dershowitz has been saying all along that this is what he said was speech protected by

00:31:04.700 the First Amendment.

00:31:05.540 And not just Dershowitz.

00:31:06.400 Jonathan Turley said this too.

00:31:07.540 Others have said it.

00:31:08.440 That what Trump said was speech protected by the First Amendment.

00:31:12.120 And you can't impeach a president for constitutionally protected speech.

00:31:16.740 So I get that.

00:31:17.660 Their defense on the actual speech itself, right, under the Brandenburg standard anyway,

00:31:22.360 is, yes, he had strong language.

00:31:25.340 Yes, he said, you gotta fight.

00:31:28.320 Eh, a lot of politicians say that.

00:31:31.280 You gotta show strength.

00:31:32.580 Eh, you have to be strong.

00:31:34.180 Politicians say that.

00:31:35.660 Take our country back with weakness.

00:31:37.120 It'll never happen.

00:31:38.400 It's not good enough.

00:31:40.300 Back to Professor Tribe in just one second.

00:31:43.540 But first, February is American Heart Month.

00:31:46.920 But talking about supporting heart health is not enough.

00:31:50.020 Nearly half of U.S. adults have heart health concerns.

00:31:53.560 I go to the cardiologist every year.

00:31:55.240 I'm way on top of that stuff.

00:31:57.400 And one thing you might consider doing to support your heart health and health overall

00:32:01.560 is take SuperBeats Heart Shoes daily.

00:32:04.800 Just two of these things per day will give you the cardiovascular support and promote

00:32:09.180 the heart-healthy energy you need to get by each day.

00:32:13.480 SuperBeats Heart Shoes combine non-GMO beets and clinically researched grapeseed extract,

00:32:19.480 which is shown to be two times as effective at supporting your normal blood pressure as

00:32:23.120 a healthy lifestyle alone, for a delicious combination.

00:32:27.240 In addition to a healthy diet and exercise, you gotta supplement your efforts.

00:32:31.140 SuperBeats Heart Shoes are your friend.

00:32:33.580 Add them to your daily routine.

00:32:35.740 Easy decision to support your healthy blood pressure and heart health.

00:32:40.680 And now, when you buy a bag of SuperBeats Heart Shoes, you can get a second one for 50%

00:32:45.480 off, 5-0, plus free shipping when you make your purchase at getsuperbeats.com slash mk.

00:32:51.220 That's getsuperbeats.com slash mk.

00:32:54.020 Getsuperbeats.com slash mk.

00:32:56.660 Well, I'm just giving you the other argument, then I'm going to give you back the floor.

00:33:03.660 I've heard it.

00:33:04.400 I've heard it over and over again.

00:33:06.280 And I keep, you know, because my experience as an appellate advocate and as a teacher has

00:33:12.220 always been, try to put yourself in the mind of your opponent.

00:33:16.240 What's the strongest argument they can make?

00:33:18.400 And I ask myself, what was he urging them to do?

00:33:22.840 This was January 6th, not any old date.

00:33:25.580 This was the date set under the Constitution for the Congress to count the electoral votes.

00:33:32.160 We know that in the context in which the president was speaking, he was expressing anger at the

00:33:39.760 vice president for refusing to exercise the power to throw out the electoral votes.

00:33:46.520 He wanted those electoral votes not to be counted because he didn't want to lose the presidency.

00:33:52.560 He's got an angry mob in front of him.

00:33:55.780 Is he asking them to go and write letters to their Congress people?

00:34:00.100 Is he asking them to make full calls?

00:34:01.480 Okay, wait, let me ask you about that.

00:34:02.440 Let me challenge you on that.

00:34:03.400 He asked him to storm the Capitol.

00:34:05.020 Was the angry mob right in front of him, right?

00:34:08.120 Because I think his lawyers would say he was having a protest like so many others have done

00:34:13.240 before in Washington saying, this is baloney, you know, the BS politicians, they're weak.

00:34:20.460 And he's talking to a group of, they would describe themselves as patriots, waving the flags and

00:34:26.560 supporting President Trump.

00:34:27.880 He's not standing in front of the Capitol as the people are hurling fire extinguishers at police

00:34:36.220 officers and causing real violence.

00:34:39.480 That would be, that would be a clear case.

00:34:41.660 But Megan, that's just not really true.

00:34:44.540 He's not in front of the Capitol, but he's a few blocks away.

00:34:47.440 He's looking at a big TV screen.

00:34:50.160 He's looking at a TV screen where he sees these people storming the Capitol.

00:34:54.900 Unlike a private citizen, he would have the power to call them back.

00:34:59.060 Facts, not in evidence.

00:35:00.940 Those are facts, not in evidence.

00:35:02.180 We don't know that he saw anybody storming the Capitol.

00:35:04.200 You just wait till you see what the impeachment managers present.

00:35:10.260 Oh, really?

00:35:11.200 The planners, I think, are going to present a picture, a kind of split screen picture in

00:35:18.340 which we have evidence that the president was fully aware through electronic media and

00:35:25.660 otherwise of what was going on at the Capitol.

00:35:28.540 He was not, this is not going on in Afghanistan or Iraq.

00:35:33.460 This is going on within earshot of the president of the United States.

00:35:39.360 He's got it.

00:35:39.740 And you're talking about storming.

00:35:41.420 You're talking about storming.

00:35:42.200 You're not like people milling about in front of the Capitol.

00:35:45.080 You're talking about violence.

00:35:46.520 No, I'm talking about violence in the Capitol.

00:35:48.880 I haven't seen all the evidence.

00:35:50.460 I think the nation will be shocked and dismayed when it sees how closely the president was

00:35:58.200 coordinated with what was going on inside the Capitol.

00:36:02.000 But even if he was somewhat distant, anyone who thinks that the president of the United

00:36:09.140 States, after we see in graphic detail what that mob was like and how armed it was, was

00:36:15.840 simply engaged in customary political rhetoric, got to be strong, is living on a different planet.

00:36:25.680 I think that's why this trial is going to make a very big difference.

00:36:29.780 I think it's going to be quite devastating for the country to see what was going on and

00:36:36.040 to see in spellbinding and terrifying detail what we're talking about.

00:36:42.020 We are not talking about an ordinary protest.

00:36:44.980 The actual evidence.

00:36:47.080 No, I got you.

00:36:47.720 I got you.

00:36:48.320 And that's important.

00:36:49.440 I mean, that's why we have trials in criminal matters and here.

00:36:52.380 Look at the evidence.

00:36:53.340 What do they actually have?

00:36:54.260 What do we believe after seeing it with our own eyes?

00:36:56.820 But question for you.

00:36:57.980 You know, the president's team says he also said repeatedly, be peaceful.

00:37:01.360 What we want is a peaceful and patriotic protest.

00:37:04.960 That's number one.

00:37:05.780 And number two, they'll also point out to the fact that there were thousands of people

00:37:10.000 there that day, thousands of a very small faction of them went over and

00:37:14.860 and behaved criminally.

00:37:17.240 The vast, vast majority did not.

00:37:19.920 So does that undermine the claim that he incited a mob?

00:37:24.940 The vast majority of the mob was not incited to do anything of the kind.

00:37:29.140 Not really.

00:37:30.080 There were hundreds of people who stormed the Capitol.

00:37:33.100 This was not anything like a peaceful protest.

00:37:36.720 It seems to me that when you look at the evidence, it will be really quite clear that the

00:37:42.300 president was riling them up to do damaging things.

00:37:46.400 The president could have pulled them back and didn't.

00:37:50.320 This was a dramatic case, not just of dereliction of duty, but almost of desertion.

00:37:55.600 After all, the president is the officer who takes an oath to execute the laws, to make sure

00:38:02.440 that they are executed.

00:38:03.440 I think in this case, the president was on the wrong side of the law.

00:38:07.860 There's a wonderful passage by Justice Scalia in one case where he says that you can't cheer

00:38:15.700 for the robbers and ride with the cops.

00:38:20.740 This is a lot like, you know, one example that I've given before is that people talk about

00:38:25.680 yelling fire in a crowded theater.

00:38:27.880 This was much more like riling up a mob that then sets fire to the crowded theater when

00:38:33.940 you were the police chief.

00:38:35.220 And instead of doing something about it, you pour oil on it.

00:38:39.860 And then the fact that you say in the middle of all of this, be peaceful.

00:38:45.800 And then later, after you know that they have been anything but peaceful, you say, we love

00:38:51.240 you.

00:38:51.520 We're proud of you.

00:38:52.320 So it's a lot like the scene in Julius Caesar where he says, I come not to praise Caesar,

00:38:59.620 but to bury him.

00:39:00.980 You know, it's quite easy to use an occasional word saying, I'm not saying go and hang Mike

00:39:10.960 Pence, but I really like the design of that gallows.

00:39:14.660 It seems to me that taken all in context and trials are all about context and narrative,

00:39:21.600 it will be not at all plausible to say that the president was doing something less than

00:39:28.340 fomenting an insurrection.

00:39:30.280 That is why-

00:39:30.720 Okay, question for you now.

00:39:32.760 Let me just finish one point, Megan.

00:39:34.600 That is why I think rather than defending what the president was doing and saying he wasn't

00:39:40.180 really engaged in inciting an insurrection, those who vote to acquit are going to hide

00:39:45.420 behind the claim, which I think, even though a few very serious people make it, they're going

00:39:52.100 to hide behind the claim that the Senate does not have the power to finish this trial.

00:39:56.860 Oh yeah, 100%.

00:39:57.880 I mean, the Republicans would love to just hang the hat on the procedural ground and not

00:40:02.060 have to defend any of this.

00:40:04.480 Understandably, no one wants to defend this nonsense, right?

00:40:06.680 I mean, why would they?

00:40:08.960 It's tough to defend the actual behavior on that day or Trump's behavior around it, although

00:40:13.260 I don't agree that legally he reached the standard of incitement, but I'm going to leave that

00:40:18.780 argument to your buddy, Alan, who's up after you.

00:40:21.560 But I do think you've got a good argument on dereliction of duty.

00:40:24.460 I think that's the strongest argument, which is why I was surprised it wasn't charged as a

00:40:29.580 count, right?

00:40:30.480 You've got the incitement count in there, but then the dereliction argument is just sort of

00:40:34.280 in the brief as opposed to like a charge that he was derelict in his duty, that it took

00:40:41.000 him hours to put out that video, that it would took him way too long to even tweet about it.

00:40:46.580 And that as commander in chief and head of our armed forces and as our president, he had

00:40:51.000 an obligation to do something to protect the members of Congress and his own vice president

00:40:56.080 who was in there.

00:40:57.140 And he sat and did nothing.

00:40:58.920 And of course, there's going to be reports that not only did he sit and do nothing, but

00:41:03.360 that he was allegedly enthusiastic about it, that he was enjoying it.

00:41:07.620 I do think I sympathize with the House of Representatives in deciding to coalesce all of his misconduct

00:41:17.900 in terms of its most serious, aggravated climax.

00:41:21.800 And that is that he was inciting an insurrection.

00:41:25.320 The fact that he was derelict in his duty sort of helped set the context, makes the incitement

00:41:31.440 all the more serious, makes the failure to undo what he had already done more dramatic

00:41:38.080 and relevant.

00:41:38.760 But I don't think they had an obligation to have a multiplicity of charges.

00:41:44.820 Can they argue all of that?

00:41:45.920 I mean, could it be the basis for impeachment, even though it's not alleged as a count?

00:41:50.380 Well, it can form part of the context for the impeachment article.

00:41:55.780 And I do expect the House managers to mention, and not just in passing, the degree to which

00:42:03.140 this president could have mitigated the harm but didn't.

00:42:09.380 Yes, of course.

00:42:10.480 In fact, I think, is part of what makes what he did so much an instance of proving that

00:42:19.660 he is too dangerous to allow back into office.

00:42:22.300 OK, let's let's back up before we back back up from dereliction and go back to the first

00:42:29.720 count, the only count, incitement, and whether he has a defense under the First Amendment,

00:42:35.680 because he's going to say, first of all, it didn't rise to the level of incitement.

00:42:39.700 It was fight, be strong.

00:42:42.020 And that's, you know, sort of political rhetoric we've heard from a lot of people.

00:42:46.160 And you can't single him out.

00:42:48.760 You know, if you want to start talking about violent political rhetoric, we're going to

00:42:52.140 have to talk about Maxine Waters and we're going to have to talk about a lot of Democrats

00:42:55.360 who have said similar stuff.

00:42:57.260 That's going to be what we're going to hear.

00:42:59.420 But I do think it's interesting whether the First Amendment should should be the end of

00:43:05.300 these proceedings.

00:43:05.940 That is what Dershowitz says.

00:43:07.900 It seems to be what Jonathan Turley believes, that that the First Amendment, that that that

00:43:15.880 you basically can't have an impeachment based on speech that is constitutionally protected.

00:43:25.660 When the president is forced by the Constitution to swear to uphold the Constitution, what if he

00:43:31.300 then, having taken the oath, says, oh, by the way, Mr. Chief Justice, my fingers were crossed

00:43:37.000 and my intention as president is to remain in power no matter what, to reject any possible

00:43:44.640 attempt to remove me and to become a dictator.

00:43:47.580 All of that is just speech.

00:43:49.260 You think that that would not be a basis for convicting and removing the president?

00:43:54.420 Presidents can't use speech to undo their oath of office.

00:43:58.640 And that's what he does when he urges an angry mob to stop the counting of the electoral

00:44:06.140 votes that are supposed to end his time in office.

00:44:10.020 OK, but their their response is that under under your theory, any president could be removed

00:44:16.260 for rhetoric that has the natural tendency to encourage others to riot.

00:44:22.180 Right.

00:44:22.580 Like, let's take Maxine Waters.

00:44:24.340 You know, she was like, confront him in the restaurants.

00:44:26.060 Go get him.

00:44:26.700 And lo and behold, people did that to Republicans.

00:44:29.100 And then you had you had even Kamala Harris saying the protesters should not let up this

00:44:35.500 past summer as the marches turned violent.

00:44:37.360 Like, again, it's a slippery slope argument.

00:44:40.000 You you you can't start removing the president or other public officials for for rhetoric that

00:44:46.440 you could argue, encourage others to riot.

00:44:49.320 Well, first of all, this was not just encouraging.

00:44:53.220 Secondly, what about ism doesn't really focus on what this guy did wrong.

00:44:58.580 Thirdly, presidents have unique power.

00:45:00.740 They are the most powerful person on Earth.

00:45:03.080 And the fact that we say that a president who has said from the beginning that he will not

00:45:08.760 accept a an electoral defeat because it will have to be fake.

00:45:13.760 He knows that he is the winner and who then does all the stuff this guy did, including trying

00:45:19.360 to get the Georgia officials to flip their votes.

00:45:22.380 You can't really subject that kind of official to the same kind of approach.

00:45:27.300 Maxine Waters and people like her can say whatever they want without doing any significant harm.

00:45:32.760 This guy holds so much power in his hands that when he tells a mob that is conditioned to

00:45:39.260 believe that the election was stolen, that they have to do something, something strong,

00:45:44.900 something wild to turn it around is doing a kind of harm that mere rhetoric on the part

00:45:51.840 of people at the extremes of the political spectrum one way or the other couldn't possibly

00:45:57.280 do.

00:45:58.280 And that's why I think we have to focus on what he did, not not on, you know, some rhetorical

00:46:04.580 flourish on the part of people on the right or the left.

00:46:07.520 Well, I mean, I'm not excusing anything Trump did, but I do not excuse Maxine Waters for saying

00:46:13.560 what she said.

00:46:14.160 And I do think it causes harm and it did cause harm to people.

00:46:17.760 And I think there was Ayanna Pressley, another one who said there needs to be unrest in the

00:46:21.380 streets.

00:46:22.060 And look at all the cops who were killed and hurt and look at all the people who were killed

00:46:25.600 and hurt over the summer protests.

00:46:27.860 I am not defending anybody who urges violence, period.

00:46:32.740 I think they're all wrong.

00:46:35.320 And one at a time, we should deal with these things.

00:46:38.120 But right now we have before us the case of Donald John Trump, who engaged in the worst

00:46:44.820 kind of thing that the framers feared, and that is riling up a mob to overcome the rule

00:46:50.480 of law and to completely cancel the effect of a free and fair election, one that was, according

00:46:58.440 to his own Department of Homeland Security, the least fraudulent, the least vulnerable in

00:47:04.120 our history.

00:47:04.640 I think that's so uniquely different that it really makes a mistake to distract attention

00:47:10.880 with these other cases.

00:47:12.140 And I'm not defending any of the excessive rhetoric that might rile people up.

00:47:18.540 Okay.

00:47:18.860 Now, I want to get to, last but not least, whether you think that we started, we end where we

00:47:25.440 started.

00:47:25.860 It's a political process, not really a legal one.

00:47:28.700 It's not like a criminal trial, even though it resembles it in some ways.

00:47:34.800 Right.

00:47:35.640 Some say it's risky.

00:47:37.180 Even some Democrats say this is going to be risky because it's going to keep Trump in

00:47:43.300 the limelight.

00:47:44.920 It's going to enable him to claim vindication when he's acquitted.

00:47:49.660 The votes are not there to convict him.

00:47:52.720 And no matter what your evidence is, they're not going to be there.

00:47:55.420 These guys have already made a political decision.

00:47:57.860 This isn't in their best interest to side against him.

00:48:00.920 I think you'd probably agree with that.

00:48:02.960 So he's going to be acquitted and it's going to lead to his recovery rather than his defeat.

00:48:10.180 This is the concern by people on your side who don't want to see this whole thing go

00:48:14.800 forward.

00:48:15.040 Well, I have to say that that's not ridiculous.

00:48:18.340 There are reasons to be concerned.

00:48:20.320 In the book that I wrote with Joshua Matz called To End a Presidency, The Power of Impeachment,

00:48:25.900 I did talk about all of the risks of impeaching somebody that you don't think you have the

00:48:31.340 votes to convict.

00:48:32.780 But there are profound risks on the other side as well.

00:48:35.840 A lot of people, I think, quite rightly have said, if this is not a basis for convicting

00:48:41.460 and disqualifying a president, then nothing is.

00:48:44.860 Then we basically are stuck with a system in which no matter what the president does and

00:48:50.180 go back to the stuff he said at the very beginning, I could shoot someone on Fifth Avenue and I'd

00:48:55.240 get away with it.

00:48:55.920 I don't think we can afford to live with a country that sets that as a precedent.

00:49:01.960 And it is true that if he is acquitted, a lot of people will say, he will certainly say,

00:49:06.960 look, I'm exonerated.

00:49:10.040 Of course, he claims to be exonerated no matter what happens.

00:49:13.920 But it seems to me that what people will say decades hence, what our children and grandchildren

00:49:21.260 will say, if we simply call this off and say, oh, well, you know, he managed to encourage

00:49:29.300 the storming of the Capitol, the killing of police officers, the threatened assassination

00:49:34.520 of the vice president and the speaker of the House.

00:49:38.160 But let's turn the page.

00:49:41.280 Can't we all get along?

00:49:42.460 If that's the message we leave, then I think we have basically left our descendants.

00:49:50.400 A government that isn't going to last.

00:49:53.940 You know, democracies don't last forever.

00:49:56.240 And if this is behavior that we don't condemn in every possible way and do everything we

00:50:03.000 can to prevent its repetition, then we really have thrown in the towel.

00:50:08.440 And I'm not willing to do that, despite the risks.

00:50:11.400 And I agree there are risks.

00:50:15.300 Professor Lawrence Tribe, a pleasure getting your point of view, your legal expertise.

00:50:19.160 Please, please come back anytime.

00:50:21.620 Pleasure talking to you, Megan.

00:50:22.760 Thanks.

00:50:25.880 Up next, the rebuttal from Professor Alan Dershowitz, who is ready to go.

00:50:31.800 This is so great.

00:50:32.600 I'm loving this.

00:50:33.400 But before we get to him, I want to talk to you about Paint Your Life.

00:50:37.240 This is a great product.

00:50:40.200 I've been talking about this, and I mean it, people.

00:50:42.460 Go to paintyourlife.com if you are looking for a Valentine's Day gift, for a birthday gift.

00:50:47.580 If you feel bad you haven't given your mom anything nice in a long time, you could get

00:50:51.000 a picture of your family, your kids, and send it on over.

00:50:54.040 This is one of those things where you send in your photo, and they'll paint it, and they'll

00:50:57.520 frame it, and they'll send it back to you.

00:50:58.800 So it's like a nicer, more elegant thing to have on your wall.

00:51:01.540 Well, I did it.

00:51:02.280 Right?

00:51:02.480 They're a sponsor.

00:51:03.020 I'm like, well, let's see.

00:51:04.020 Hopefully it works out.

00:51:04.780 I don't want to, you know, mislead anybody, so I got to really hope for the best.

00:51:09.020 Nailed it.

00:51:10.220 I kid you not.

00:51:12.020 They did a beautiful job.

00:51:15.040 It's professional.

00:51:16.380 It's hand-painted.

00:51:17.960 They took a photo of my kids that I sent in, and then they, you can choose the artist you

00:51:22.400 want, but if you don't, then there's like world-class artists that they have that are

00:51:25.760 available to help you.

00:51:26.720 Every detail will be perfect.

00:51:29.060 A super user-friendly platform, by the way, that lets you order custom-made, and it's, again,

00:51:32.960 hand-painted, in less than five minutes, you place the order, and then you get the product

00:51:36.960 back about three weeks later.

00:51:38.140 Any picture at all, or you can combine two into one.

00:51:41.380 Perfect gift, anniversary, whatever.

00:51:43.960 Or you could do a wedding gift.

00:51:45.160 Wedding gift's always so hard for somebody, isn't it?

00:51:47.360 Meaningful, personal.

00:51:48.360 It can be cherished forever, and I have to tell you, mine is spot on.

00:51:53.180 It's perfect.

00:51:54.280 It looks like the photograph, only, again, I think it's like a little bit more elegant

00:51:58.700 to have the painting on the wall, and you can choose your frame and all that.

00:52:02.120 Anyway, you're going to love it.

00:52:03.040 So trust me, if you don't love the final painting, your money's refunded, guaranteed.

00:52:07.520 And right now, it's a limited time offer.

00:52:09.420 You can get 20% off your painting, 20% off, and free shipping, by the way.

00:52:16.000 So to get this special offer, text the word MK to 64000.

00:52:22.440 Like, that's the number you're texting to, 64000, six, four, and then three zeros.

00:52:26.440 That's MK to 64000.

00:52:29.440 Text MK to 64000.

00:52:31.700 Paint your life, people.

00:52:33.460 Celebrate the moments that matter most.

00:52:36.040 And now it's time for another edition of our feature, You Can't Say That, or Think That,

00:52:40.460 or Do That.

00:52:41.420 Oh, wait.

00:52:42.120 This is America.

00:52:43.580 This time, there is a Super Bowl ad that features a message that you just cannot say,

00:52:48.980 or apparently cannot sing.

00:52:51.160 The legend, Dolly Parton.

00:52:53.140 Yes, Dolly Parton, of all people, is in trouble.

00:52:55.620 Who next?

00:52:56.180 Betty White?

00:52:57.120 Who else can we get?

00:52:58.380 Who else is going to be on the wrong side of the wokesters?

00:53:01.600 Dolly Parton lent her vocals to a new version of the hit song, 9 to 5.

00:53:06.200 You remember that?

00:53:06.780 Working 9 to 5.

00:53:09.560 This was for a commercial for the company Squarespace.

00:53:12.880 And this company helps you, like, create easy-to-use websites.

00:53:17.740 Like, if you have a dream of doing a different career, you could work on one of these websites

00:53:21.280 to create your new career.

00:53:23.380 And the twist was that this version of the song was about what you can do from 5 to 9

00:53:29.020 when you work on your side hustle.

00:53:31.720 Get it?

00:53:32.100 Like, after your day job is over.

00:53:34.340 Take a listen.

00:53:35.040 Working 5 to 9.

00:53:37.320 You've got passion and a vision

00:53:39.640 Cause it's hustling time

00:53:41.960 A whole new way to make a living

00:53:44.280 Gonna change your life

00:53:46.360 Do something that gives it meaning

00:53:48.780 With a website that is worthy of your dreamin'

00:53:53.840 Well, seems like good fun to me.

00:53:57.700 But Dolly's words and her going on to sing something about working, working, working

00:54:03.640 has upset somebody at NBC News.

00:54:06.440 Uh, NBC published a column this week saying that Dolly Parton was playing a rich man's

00:54:11.840 game.

00:54:12.880 Quote,

00:54:13.640 It's a perfect storm of gig economy propaganda, wrote the author Kim Kelly, no relation, who

00:54:19.500 describes herself as a freelance journalist and organizer.

00:54:22.900 She's an organizer.

00:54:24.500 Ms. Kelly says she was disappointed to hear Parton sing about working, working, working.

00:54:30.340 Because apparently having dreams beyond your current occupation and the tenacity to work

00:54:35.280 on them after hours, uh, in your free time, it's no longer acceptable.

00:54:39.720 That's somebody else's fault.

00:54:41.260 It's society's fault.

00:54:42.840 And if you celebrate it, it's your fault.

00:54:46.220 Okay?

00:54:46.640 So I have a message for, um, Ms. Kelly.

00:54:49.180 Get used to being freelance.

00:54:52.180 If that's your attitude about working, working, working, no one's gonna hire you full-time.

00:54:56.880 Uh, and that, folks, is, uh, the latest edition of, you can't say that, uh, Dolly Parton in

00:55:04.500 the crosshairs today.

00:55:05.520 And now another person who will not listen if you tell him you can't say that, Professor

00:55:10.920 Alan Dershowitz.

00:55:12.380 Let's start with this.

00:55:18.260 Why are you not representing Trump this time when you represented him last time in the first

00:55:22.900 impeachment proceeding?

00:55:24.260 I didn't want to be part of any defense or any legal team that raised questions about

00:55:29.840 the election itself.

00:55:31.040 I do not believe the election was stolen.

00:55:33.020 I do not believe it was fraudulent.

00:55:35.320 And I didn't want to be associated with making that kind of argument.

00:55:39.200 But I'm happy to defend the Constitution, the First Amendment, the impeachment provisions

00:55:44.380 of the Constitution, due process, in the court of public opinion, on shows like yours, and,

00:55:50.140 uh, let the people hear my views.

00:55:52.140 Uh, also, this is political theater, and I'm neither a politician nor an actor.

00:55:57.680 And so I see my role more as an educator, somebody who is out there defending the First Amendment.

00:56:04.060 I am not a Trump supporter, um, but I'm a supporter of the Constitution, regardless.

00:56:09.200 Regardless of who is being impeached, who is being prosecuted.

00:56:13.460 Um, so I'm going to stand up for the Constitution, but I'm not going to be on the Senate this time

00:56:19.360 around.

00:56:20.020 Okay.

00:56:20.680 And just an overview of the lawyers here.

00:56:22.700 So, uh, House Representative Jamie Raskin is the lead House impeachment prosecutor.

00:56:27.920 And on the defense side, Trump has gone with Bruce Castor Jr., David Schoen, and Michael

00:56:33.540 T.

00:56:34.420 Vanderbeen.

00:56:35.060 Can you give us your armchair assessment of the lawyers?

00:56:39.020 I only know two of them.

00:56:40.840 Uh, I know Jamie Raskin.

00:56:42.180 He was my student.

00:56:43.360 I actually helped represent his father, uh, during the Spock case, uh, many, many, many

00:56:48.480 years ago during the Vietnam War.

00:56:50.540 I think well of Jamie generally as a congressman and as a person.

00:56:54.640 And I fundamentally disagree with the approach he's taking to this case.

00:56:58.860 Um, I know David Schoen, not well, and I don't know any of the other, uh, lawyers.

00:57:04.080 Um, but the one point that I think it's important to emphasize is that I hope these lawyers, I

00:57:09.860 hope that, uh, Schoen and the other lawyers will not be intimidated by, uh, law professors.

00:57:15.540 A group of law professors, uh, issued a letter the other day, essentially threatening the

00:57:21.340 Trump lawyers.

00:57:22.120 And I'll read you from what they said.

00:57:23.960 They said any First Amendment defense raised by President Trump's attorneys would be legally

00:57:29.000 frivolous.

00:57:29.980 Now you're an attorney and you know what legally frivolous means.

00:57:33.580 It means that if you make the argument, you can be disciplined and even disbarred.

00:57:37.500 It is unethical to make a legally frivolous argument.

00:57:40.680 And yet these 144 law professors, uh, issued a statement, clearing any First Amendment defense

00:57:47.760 to be legally frivolous.

00:57:48.740 They also said, quote, no reasonable scholar or jurist would offer a First Amendment defense,

00:57:54.480 which sends a message to young professors who don't have tenure or young lawyers who want

00:57:59.760 to get in a teaching position that if they make an argument based on the First Amendment,

00:58:05.440 their peers and hiring committees will regard them as unreasonable since no reasonable scholar

00:58:09.620 or a jurist would make those arguments.

00:58:11.460 That is very frightening and scary.

00:58:14.540 And that's why I'm glad to have an opportunity to defy those 144 professors on your show and

00:58:20.060 make the case for why a First Amendment defense not only is not frivolous, but must be made.

00:58:26.440 Indeed, it would be irresponsible and unprofessional for lawyers not to make that case, to deny the

00:58:32.360 American people, to deny the Senate the right to hear a strong, ethical, reasonable First Amendment

00:58:38.380 defense for President Trump now, former President Trump, for the speech he made and other statements

00:58:44.260 he made, uh, leading up to the impeachment.

00:58:47.540 Okay.

00:58:48.080 So let's go through it point by point.

00:58:49.600 Let's start with the main, the main argument on behalf of the Trump team, which is this is

00:58:54.760 not an appropriate impeachment.

00:58:56.720 The impeachment is supposed to be to remove a president.

00:58:59.180 He's already been removed.

00:59:00.380 And I'll just tell you up front, what Lawrence Tribe says about this is he was impeached while

00:59:06.340 he was a sitting president, that the trial is taking place after he's gone is irrelevant.

00:59:12.320 And he defends just the whole process of, of an ex presidency impeachment in general as

00:59:17.780 well.

00:59:18.120 Your take.

00:59:19.320 I get that.

00:59:19.980 Uh, of course the, uh, house managers don't limit themselves to, uh, putting on trial a

00:59:26.420 president who was impeached while he was president.

00:59:28.320 They say there's no statute of limitations, go back and impeach anyone.

00:59:32.540 You can go back and impeach, uh, uh, president Carter, president, uh, Clinton.

00:59:37.760 You can go after Nikki Haley.

00:59:39.680 If Nikki Haley emerges as a strong opponent, uh, in the potential 2024 election, according

00:59:46.940 to the house managers, I'm not saying professor tribe says that, but according to the house

00:59:51.140 managers, there's no statute of limitations.

00:59:53.640 You could impeach her for something she said or did while she was at the United Nations.

00:59:57.580 Look, the best precedent in our history is Aaron Burr.

01:00:01.540 Aaron Burr was the vice president.

01:00:03.540 He ended his term as vice president and then he went off to the South and fomented an insurrection.

01:00:09.700 Um, nobody, none of the framers thought about impeaching him, even though he was a young

01:00:15.540 man and could have run.

01:00:16.700 He lived many, many more years.

01:00:18.700 Nobody thought about impeaching him.

01:00:21.200 He was out of office.

01:00:22.080 What they did is they prosecuted him.

01:00:23.660 They put him on trial for treason, a great trial.

01:00:26.400 Um, uh, the former chief justice, John Marshall presided, uh, Thomas Jefferson's, I think cousin,

01:00:34.040 uh, was one of the prosecuting attorneys.

01:00:36.600 It was a great trial and he was ultimately acquitted, but nobody thought about putting ex-president,

01:00:43.260 uh, Aaron Burr on trial for what would clearly have been impeachable offenses, namely raising

01:00:50.400 an insurrection and committing treason against the United States.

01:00:53.880 Several times they did put former officials on trial, but in every one of those cases they

01:00:59.060 were acquitted and they were acquitted largely on the ground that senators refused to convict

01:01:05.300 because they didn't believe they had jurisdiction over former officials.

01:01:09.480 So there is no January exception.

01:01:11.820 You could be put on trial.

01:01:13.420 Um, there, uh, James Madison, uh, in, uh, federalist 37 specifically says you can only impeach

01:01:21.300 somebody who is then in office, serving in office.

01:01:24.840 And the idea that you can put somebody on trial afterward, no, the jurisdiction of the Senate

01:01:30.880 ends the day the president leaves office.

01:01:33.960 Certainly if he leaves office because his term was over and the voters voted him out of office.

01:01:39.460 The idea that you can then put him on trial as a private citizen would be a bill of attainder,

01:01:45.740 bill of attainder prohibits putting private citizens on trial and punishing them.

01:01:50.700 And disqualification from office has been held by the courts to constitute the kind of punishment

01:01:55.820 that is prohibited by the bill of attainder provision of the constitution.

01:02:00.080 Don't say bill of attainder anymore.

01:02:01.720 No more bill of it.

01:02:02.440 No, but even I get stuck on that one and I, I'm a lawyer.

01:02:05.660 Let me ask you this.

01:02:07.200 Does it help your argument that the constitution says, okay, if you are going to impeach a president,

01:02:12.540 here's what you need to do.

01:02:13.660 Go get the chief justice because he's got to be the person, he's got to be basically the judge

01:02:17.460 who runs the proceeding, um, when you're impeaching the president, but we're not impeaching the

01:02:22.180 president.

01:02:22.460 And so now we've got Senator Pat Leahy overseeing the, and like, it doesn't really, to me,

01:02:27.620 that's sort of a stumbling block.

01:02:29.080 And it says we're supposed to use the chief justice when it's the president.

01:02:31.900 Well, this is an ex-president.

01:02:33.700 Now we're stuck with, with respect to Senator Leahy, more like a lackey.

01:02:37.580 He's not a judge.

01:02:38.380 He's not the chief justice.

01:02:39.880 What do you make of that?

01:02:41.260 Well, the framers never occurred to them that there would be an ex-president on trial.

01:02:45.020 So they made no provision for it.

01:02:46.620 And the chief justice was absolutely right to refuse to participate in this unconstitutional

01:02:51.980 proceeding.

01:02:53.860 And so if the framers thought you could put an ex-president on trial, they would have said

01:02:58.460 the chief justice presides.

01:02:59.720 Remember, too, Leahy is presiding by default.

01:03:02.940 The person who's really supposed to preside is the president of the Senate, which is the

01:03:06.280 vice president of the United States.

01:03:08.140 And so she would be presiding over a trial that might disqualify the person who might run

01:03:13.520 against her in 2024.

01:03:15.800 That's why the chief justice was put in place, because he has no political ambitions.

01:03:20.660 He's not a partisan.

01:03:22.160 He's part of the judiciary.

01:03:23.680 And there was a lot of debate about the chief justice presiding.

01:03:27.100 There was even some consideration about having the trial of impeachment in front of the Supreme

01:03:31.300 Court.

01:03:32.080 And ultimately, the framers and Hamilton and others in Federalist 65 explain why that wouldn't

01:03:37.340 happen.

01:03:38.020 But it never occurred to the framers to put an ex-president on trial, even though many of

01:03:43.260 the state constitutions at the time made explicit provisions for putting former officials on trial.

01:03:50.540 But the framers of this constitution didn't include that.

01:03:54.940 And when they use the term disqualification, they didn't say removal or disqualification.

01:04:00.500 They didn't propose disqualification as an alternative to removal.

01:04:04.380 They said removal and disqualification, meaning that you can only disqualify once you've been

01:04:11.960 removed and you cannot be removed if you've been elected out of office.

01:04:16.640 So here's the next question.

01:04:18.440 If they if they go forward with this and I realize they don't have the votes, so they're

01:04:21.520 really, you know, they don't have the votes to convict the guy.

01:04:24.340 But let's say something turns and they they they find them.

01:04:29.320 The only real remedy they have now is the disqualification from running for office again.

01:04:33.600 So if that were to happen, you know, an all out win by the Democrats, if that were to happen,

01:04:39.380 could Trump file an appeal in a federal district court to this whole thing saying, I object

01:04:45.240 to that because this entire impeachment proceeding was improper.

01:04:49.540 He could do several things.

01:04:50.920 One, he could simply run for office and say this is all void.

01:04:55.280 It's totally improper.

01:04:57.440 The framers of the Constitution and the Federalist Papers say when the Senate acts unconstitutionally,

01:05:02.320 it's void, not voidable, void.

01:05:04.400 It's just void.

01:05:05.480 So the president could simply say it was theater and I'm running and then somebody else would

01:05:10.260 have to bring an action against him.

01:05:11.580 He'd be the defendant in the lawsuit or he could bring a declaratory judgment action in

01:05:16.300 federal district court, ultimately getting to the Supreme Court to see whether or not

01:05:21.040 the courts would declare it invalid.

01:05:24.640 So let's get down to brass tacks and talk about the standards, what he's actually charged

01:05:29.220 with.

01:05:29.440 As I see it, the first big legal question after you get past, should we all be doing

01:05:33.900 this, is was Trump's speech permissible under the First Amendment?

01:05:40.920 Now, Lawrence Tribe and the House Democrats say, no, it was not permissible under the First

01:05:45.200 Amendment.

01:05:45.580 This was unlawful incitement.

01:05:47.860 You say it was permissible speech.

01:05:50.700 This was not incitement under the Supreme Court case Brandenburg, because Brandenburg says

01:05:57.720 incitement is where you you offer speech that is directed to incite or that produces imminent

01:06:06.560 lawless action and is likely to incite or produce such actions.

01:06:09.880 It has to be close in time.

01:06:12.380 It has to be specific.

01:06:13.740 It has to be pretty much outrageous and directly like not not enough to be cause.

01:06:18.200 In fact, it has to be the proximate cause, the very closest cause of what happened next,

01:06:23.140 namely the riot.

01:06:24.500 And I know you say they don't they don't have what tribe says is.

01:06:30.780 All right.

01:06:31.140 It's not about he's like, I know he said protest peacefully, you know, be patriotic.

01:06:38.280 But he basically says you can't window dress up a speech that's full of fight, fight, fight.

01:06:44.940 Be strong.

01:06:45.920 We're not going to have a country back.

01:06:47.060 On the heels of weeks and months of it's a steal.

01:06:52.120 This is how, you know, all the other rhetoric and the knowledge that violent groups might

01:06:57.900 be coming.

01:06:58.680 You can't like you can't window dress it with patriotic march.

01:07:03.480 I agree with that.

01:07:04.260 I think you have to look at the entire speech in context.

01:07:07.000 By the way, CNN and PBS left out the phrase peacefully and patriotically when they showed

01:07:14.100 the speech.

01:07:14.600 But if you look at the whole speech and you look at everything he said from the day of

01:07:18.240 the election, all of it is constitutionally protected.

01:07:21.660 All of it is comes within Brandenburg.

01:07:24.100 Remember Brandenburg context, too.

01:07:25.980 He was the head of the Klan, the Nazi Party.

01:07:28.140 He was making a speech surrounded by people with the hoods and crosses and guns, and he was

01:07:34.640 calling on them to take revengeance against the senators and to send the Jews back to Israel

01:07:40.140 and the blacks back to Africa and over and over and over again.

01:07:44.400 And of course, the Supreme Court unanimously said that that was protected.

01:07:47.780 With all due respect to my colleagues, I have litigated more First Amendment cases than any

01:07:52.700 of them.

01:07:52.960 I've litigated every major First Amendment case in the last half of the 20th century,

01:07:56.740 from the Pentagon Papers case to the I Am Curious Yellow case, now the WikiLeaks case,

01:08:02.060 the Chicago 7 case, the Bruce Franklin case.

01:08:06.100 I know what the law is on incitement.

01:08:09.280 This doesn't even come close.

01:08:12.080 This is pablum, the speech.

01:08:14.300 Fighting words are common in the Capitol.

01:08:16.440 You hear all the time, confront them, take over the Capitol.

01:08:20.820 Compare it to what Congresswoman Waters said when she told people, provoke people, get in

01:08:26.140 their face, don't let them eat, don't let them enjoy themselves, tell them they're not

01:08:31.660 welcome, all of that.

01:08:33.000 That's all protected speech.

01:08:35.320 That's all common.

01:08:36.960 You had suffragettes making speeches like that, labor leaders, radicals on the left, and interestingly

01:08:42.440 enough, most oppression has been directed against the left.

01:08:45.960 I grew up during McCarthyism, and I know that these speeches have been common.

01:08:51.300 The Chicago 7, blood in the streets.

01:08:54.400 This is America.

01:08:55.740 We allow people to make those speeches.

01:08:57.920 Thomas Jefferson, on the 25th anniversary of the Declaration, wrote a letter in which

01:09:02.780 he said, you don't go after the speaker.

01:09:04.920 You go after the person who committed the violence.

01:09:07.300 There's no excuse.

01:09:08.620 The people can't say the president made me do it.

01:09:11.020 And then look at the facts of the case.

01:09:12.620 He spoke to a certain number of people.

01:09:15.020 Only a percentage of them went to the Capitol at all.

01:09:18.240 Most of them didn't.

01:09:19.580 The ones who went to the Capitol, most of them didn't go inside.

01:09:22.780 The ones that went inside, most of them didn't engage in violence.

01:09:26.360 This is not shouting fire.

01:09:27.880 When you shout fire in a crowded theater, everyone leaves.

01:09:30.920 That is not an invitation to think about something.

01:09:34.140 That's a demand to leave.

01:09:36.960 You don't get a third of the people leaving.

01:09:39.040 You don't get people debating whether to go and do it.

01:09:41.160 This was not incitement.

01:09:43.740 He didn't incite.

01:09:44.880 This was an invitation.

01:09:46.420 He said, please go to the Capitol.

01:09:48.180 I urge you to go to the Capitol.

01:09:49.520 Protest strongly.

01:09:50.540 He used fighting words, very strong words.

01:09:53.600 I have to tell you, I don't want to get personal with Tribe or anybody else, but these 144 people

01:09:58.100 who wrote saying that any First Amendment defense raised by presidential attorneys would be legally

01:10:03.880 frivolous, most of them would not be making this argument if it were not Donald Trump.

01:10:08.860 If this were a left-wing agitator, if this were Bill Kunstler, if this were the Chicago

01:10:13.460 7, they would be on the other side of this issue.

01:10:17.640 They do not pass the shoe on the other foot test.

01:10:20.980 They are trying to devise a special First Amendment test for Donald Trump.

01:10:25.620 Look, I'm not a supporter of Donald Trump.

01:10:27.700 I don't vote for Donald Trump.

01:10:29.460 I don't contribute to his campaigns.

01:10:31.160 I don't support his politics, but I support the First Amendment rights of everyone, Maxine

01:10:36.240 Waters, the Nazi Party, the Klan, anybody, to make these kinds of provocative speeches.

01:10:42.140 And I don't want to see the First Amendment watered down in the name of trying to get Donald

01:10:47.480 Trump.

01:10:48.600 Well, and I will say, the ACLU is on your side.

01:10:51.300 I mean, that's...

01:10:52.040 No, the ACLU is not on my side.

01:10:53.840 I wish it were.

01:10:54.940 Wait, I thought they were on your side on this one, on this issue.

01:10:57.820 And the ACLU is on my side on whether Brandenburg applies.

01:11:01.320 That's my point.

01:11:02.020 Yeah.

01:11:02.120 No, I know.

01:11:03.020 I know.

01:11:03.280 They want him to be impeached.

01:11:04.240 And we'll get to that.

01:11:04.920 But the ACLU agrees with you that this speech was not incitement under Brandenburg.

01:11:11.680 It's not even a close question.

01:11:14.000 This speech and everything that came before it is so within the American tradition.

01:11:19.240 Speeches like this were made in the run-up to the Revolutionary War.

01:11:24.240 It was made after we were established as a country.

01:11:26.160 It was made in the run-up to the Civil War.

01:11:28.420 It was made during Reconstruction.

01:11:30.200 It was made during the McCarthy period, made during the anti-Vietnam, particularly the

01:11:35.000 anti-Vietnam period.

01:11:36.480 It's not even a close question under Brandenburg.

01:11:39.860 And it's a scandal that so many professors, 144 of them, would say that they would construe

01:11:45.920 the Constitution to forbid a normal citizen.

01:11:49.620 We're not talking about special rules for the president.

01:11:52.340 From making an agitating, provocative speech.

01:11:55.240 That's un-American.

01:11:57.680 Okay.

01:11:58.320 But so here's the here's what was suggested.

01:12:00.800 And, you know, Tribe has been helping these House Democrats.

01:12:03.400 He said, you wait, wait until we see the video.

01:12:06.640 And so let's assume for purposes of our discussion right now, they produce a video of Trump, you

01:12:12.440 know, a couple blocks from the Capitol, speaking to the crowd, watching the mob storm, not just

01:12:18.200 circulate out in front, storm the Capitol.

01:12:21.260 And then he says, we're going to go.

01:12:23.920 We have to fight.

01:12:24.720 Don't be weak.

01:12:25.920 We have to be strong.

01:12:27.780 Then do you think they've got him?

01:12:29.740 No, I don't think so.

01:12:30.840 First of all, you have to ask yourself what the relationship is.

01:12:35.640 He's seeing them.

01:12:37.120 Are they the people storming the Capitol listening to him?

01:12:40.400 Or is he talking to the people who didn't go to the Capitol?

01:12:44.640 The only way you get incitement is he has to be literally at the Capitol and he has to

01:12:52.020 be saying to them, break into the Capitol, steal the computers, hit people.

01:12:58.760 There was a case like that.

01:13:00.080 I defended the person.

01:13:01.240 His name was Bruce Franklin.

01:13:02.740 He was a professor at Stanford Law University.

01:13:06.160 I was a visiting professor there that year.

01:13:08.240 And he got up and he made a speech during the Vietnam War in which he said to a bunch of

01:13:12.880 students and faculty, you see the computation center over there, it's part of the war effort.

01:13:17.240 I think it would be a good idea for you to go and take over the computation center.

01:13:24.060 Immediately, they went and took over the computation center and they destroyed it and

01:13:27.940 they trashed it and they caused tremendous amount of property damage.

01:13:33.040 He was then brought up under charges at the university, private university, and his tenure

01:13:38.600 was stripped.

01:13:40.120 Who do you think defended him?

01:13:41.380 The American Civil Liberties Union.

01:13:43.440 Who did they ask to make his defense?

01:13:45.520 Me.

01:13:46.440 I made his defense with the support of the American Civil Liberties Union.

01:13:50.240 And I have to tell you, if Larry Tribe had been at Stanford, he would have been defending

01:13:54.580 Bruce Franklin.

01:13:57.240 And that case is much, much closer to incitement than any hypothetical or case in which the president

01:14:04.680 is standing by and watching the mob and not doing anything about it and continuing to

01:14:10.100 make his speech.

01:14:10.840 That doesn't cross the line to incitement.

01:14:13.900 So you won that case?

01:14:16.480 Well, no, it's interesting enough.

01:14:18.580 The ACLU was on our side.

01:14:20.580 They fired him because they were a private university.

01:14:24.240 But what was the ruling on speech?

01:14:25.520 Did they find that it was incitement under Brandenburg?

01:14:28.440 The committee at Stanford said they didn't have to make a finding because they're a private

01:14:34.700 university and they're not bound by Brandenburg and they're not bound by the United States

01:14:39.520 Constitution.

01:14:40.720 Let's talk about dereliction of duty, because I think this is a stronger case for them.

01:14:45.660 I know Andy McCarthy thinks this is a stronger case for them.

01:14:49.540 But they didn't plead it.

01:14:51.260 It's not a count against him.

01:14:53.860 It shows up in their brief as color, that he sat by, he didn't take action, he turned

01:15:01.220 a deaf ear.

01:15:03.400 Andy McCarthy's basically saying, look, when the seat of government is stormed and lives

01:15:07.600 are in jeopardy, including cops and members of Congress and Mike Pence, you can't sit back.

01:15:12.300 That's a dereliction of duty.

01:15:13.620 And that's a good basis for impeachment.

01:15:15.020 But he's raised and I can see his point.

01:15:18.040 They didn't plead it.

01:15:19.140 And there's a question about whether they can really use it.

01:15:22.100 What do you think?

01:15:22.740 Well, there's no question about them using it.

01:15:25.560 They did the same thing in the first impeachment.

01:15:27.800 Whoever prepared these impeachments really gets a C minus in pleading.

01:15:32.240 The first impeachments, they should they could have charged extortion, bribery.

01:15:38.220 Those are impeachable offenses.

01:15:39.880 They didn't.

01:15:40.960 They charge obstruction of Congress and abuse of power, which are not impeachable offenses.

01:15:45.500 The same thing was true here.

01:15:47.160 They charge something, but it's constitutionally protected.

01:15:51.020 Had they charged dereliction of duty, failure to be sure that the laws be faithfully executed,

01:15:58.380 it would have been an interesting case.

01:15:59.880 I don't think that would be impeachable because it's not treason, bribery or other crimes and

01:16:04.320 misdemeanors.

01:16:04.840 And as you know, I take a very strong position and the position taken by most scholars and

01:16:10.040 judges throughout the 19th century that you need criminal type behavior.

01:16:16.380 Curtis made that argument.

01:16:17.760 Others made that argument.

01:16:18.680 You need criminal type behavior.

01:16:20.340 Recently, scholars have looked the other way and say you don't need criminal type behavior.

01:16:24.380 So I think the case would have been decided on that ground.

01:16:26.940 It would be a very, very strong case if you don't need criminal type behavior.

01:16:31.900 But if you need criminal type behavior, then failure to perform duty, failure to provide

01:16:37.100 the oath of office, failure to do all of these other things would would not constitute

01:16:42.980 treason, bribery, other high crimes and misdemeanors.

01:16:45.940 But it would have been a stronger case, I think, because it wouldn't be constitutionally

01:16:49.280 protected.

01:16:50.780 Here's my next question.

01:16:51.800 If it's not illegal incitement.

01:16:53.560 OK, because I actually agree with you.

01:16:54.680 If I get to be the judge, I rule in your favor on this.

01:16:56.580 It doesn't it doesn't pass the Brandenburg standard for incitement and therefore the

01:17:02.100 speech itself was not unlawful and it is protected by the First Amendment.

01:17:06.440 But the question is, is that the end of the issue?

01:17:10.040 And I know you say you cannot impeach a president for constitutionally protected speech,

01:17:14.520 period.

01:17:15.420 But I think the weight of authority is against you on that and that abuses of power that

01:17:21.500 are they're not unlawful speech, but their abuses of power can be the proper basis of

01:17:27.140 an impeachment.

01:17:28.240 Why do you disagree with that?

01:17:30.060 Well, first of all, that was what was charged in the first impeachment and they lost.

01:17:33.820 Abuse of power is not is not the constitutionally permissible basis for impeachment.

01:17:39.340 Forty four of our presidents have been charged with abuse of power.

01:17:42.940 Abraham Lincoln, Frank Cardona Roosevelt.

01:17:44.860 In my impeachment speech on the Senate, I listed all of the 44 presidents who have been

01:17:50.260 accused of abuse of power.

01:17:53.440 Barack Obama was accused of abuse of power.

01:17:56.060 Virtually every president has been accused of that.

01:17:58.080 That cannot be the basis for impeachment.

01:18:00.340 Otherwise, we'd have the British system.

01:18:02.680 I think the argument that's made is a little different.

01:18:04.820 The argument that has been made is, look, a cabinet member can be fired by the president

01:18:09.240 for making a speech.

01:18:10.360 And that's true because the president has total authority to fire a cabinet member for no reason

01:18:15.940 whatsoever.

01:18:16.420 Other people can be fired if they are members of the Nazi party or make racist speeches.

01:18:22.520 Impeachment is different.

01:18:23.620 It's not an employment relation.

01:18:25.340 It's not being fired.

01:18:26.560 That's the British system.

01:18:27.580 The British system is you can fire a prime minister if he makes a speech you don't like.

01:18:31.800 The American system requires treason, bribery, other high crimes and misdemeanors.

01:18:35.460 It's not like firing.

01:18:37.140 And if it requires those four...

01:18:38.100 So you don't think it has to be an actual crime, like a felony or a misdemeanor?

01:18:42.880 No, criminal type behavior.

01:18:45.980 For example, if it's a crime committed in Europe, it might not have jurisdiction in the

01:18:50.800 United States, but it's criminal type behavior.

01:18:53.040 Because think of the words treason, bribery, or other, other high crimes and misdemeanors.

01:18:59.000 The 19th century scholars all assume that other high crimes and misdemeanors refers to

01:19:03.780 things like treason and bribery.

01:19:06.240 In other words, criminal type behavior, extortion...

01:19:09.180 Okay, let me just throw this at you, because you're quoting the Federalist Papers a lot.

01:19:12.920 Here's Alexander Hamilton, Federalist No. 65.

01:19:15.680 Impeachment exists for offenses which proceed from the misconduct of public men, or in other

01:19:21.160 words, from the abuse or violation of some public trust.

01:19:25.520 That's exactly right.

01:19:26.300 Abuse of public trust.

01:19:27.240 Why is that?

01:19:28.080 That's what they're saying he did.

01:19:29.880 Here's what Hamilton was saying.

01:19:31.620 Remember Hamilton's own experience.

01:19:32.880 He committed a felony while in office, while he was Secretary of the Treasury.

01:19:36.780 He committed adultery with a married woman, and then he paid extortion.

01:19:40.940 And he admitted it was a crime, but he said it wasn't a high crime.

01:19:44.660 And what Hamilton was saying in 65 is, in addition to it being a crime, it has to be a crime that

01:19:50.700 violates the public trust.

01:19:52.420 Therefore, it's political in nature.

01:19:54.120 It can't be a Bill Clinton-type crime, and it can't be an Alexander Hamilton-type crime.

01:19:58.560 It has to be a high crime.

01:20:00.940 And so if you read 65, and I made this point on my speech in the Senate, that Hamilton was

01:20:06.700 actually constraining, narrowing the criteria, not broadening it, saying a crime is not enough.

01:20:12.960 It has to be a crime that's political in nature, that violates the public trust, but it's not

01:20:17.820 enough if it's not a crime at all.

01:20:20.620 So I don't think Hamilton supports that view.

01:20:22.900 I think he undercuts that view.

01:20:24.680 Let me give you one more, because I know you love Madison.

01:20:27.240 And this is the other thing that gets thrown in on this side, that Madison at the Constitutional

01:20:32.000 Convention was talking about cases that would require presidential remover and said some

01:20:36.700 provisions should be made for defending the community against the incapacity, negligence,

01:20:41.420 or perfidy, meaning lying, of the chief magistrate, and that he didn't believe elections every

01:20:47.400 four years was going to be a strong enough safeguard, that he was worried a president might

01:20:50.940 lose his capacity.

01:20:51.840 OK, you could use 25th Amendment on that.

01:20:54.260 Or might pervert his administration into a scheme of peculation, meaning kind of embezzlement,

01:21:01.080 or oppression.

01:21:02.760 And then the follow up was that his pal from Virginia, Edmund Randolph, supported him in

01:21:08.280 that view because, and I quote, the executive will have great opportunities of abusing his

01:21:12.720 power.

01:21:13.820 And without impeachment, the people would have to resort to tumults and insurrections to

01:21:18.020 turn out such a president.

01:21:19.600 OK, go.

01:21:20.660 This is so fun.

01:21:21.480 I'm having such a good time.

01:21:22.400 I addressed this directly in my speech in the Senate last year.

01:21:27.280 This was, there was a two parts debate.

01:21:29.560 First part of the debate was, do we need an impeachment provision at all?

01:21:33.320 The second part is, if we do, what should be the criteria?

01:21:37.040 All of these conversations occurred in the first part of the debate.

01:21:40.680 These were arguments about why you need, why you need to have impeachment.

01:21:47.060 And for example, one of the things they talked about a lot was incapacitation.

01:21:51.060 You mentioned the 25th Amendment.

01:21:53.180 Incapacitation.

01:21:53.800 You need impeachment.

01:21:54.960 What if a president gets incapacitated?

01:21:57.080 So that view prevails.

01:21:58.540 Yes, we need impeachment.

01:21:59.700 Then we turn to the more difficult issue.

01:22:01.760 What are the criteria?

01:22:03.320 And the criteria they decided on were treason, bribery, other high crimes and misdemeanors,

01:22:08.540 not maladministration and not incapacitation.

01:22:12.220 Which is why for 150 years, we had a gap in our Constitution.

01:22:17.140 And the gap showed with Woodrow Wilson.

01:22:19.740 He was incapacitated and he couldn't be removed because we didn't have the 25th Amendment.

01:22:23.900 We filled that gap with the 25th Amendment.

01:22:26.580 But the framers made a sharp distinction between why we need impeachment.

01:22:31.220 We need impeachment for peculation, for abuse of power, all of that.

01:22:34.980 That's why we need impeachment.

01:22:36.460 Now let's decide what the criteria are.

01:22:38.560 Uh-oh.

01:22:38.840 Different kind of issue.

01:22:40.520 Let's make it very narrow.

01:22:42.620 Let's avoid the English experience.

01:22:44.980 Let's make impeachment very difficult to apply.

01:22:48.680 And so we decide on these four criteria, treason, bribery, other high crimes and misdemeanors.

01:22:54.160 Very different debate.

01:22:55.720 So those statements that you all read were all taken in the context of that we need an impeachment

01:23:01.640 provision, not what the criteria should be.

01:23:04.900 We rejected the criteria of abuse of power, maladministration, incapacitation, all of that in lieu of something

01:23:13.960 very different, criminal type behavior.

01:23:16.560 That's the way it was solved.

01:23:18.640 You say the standard is it doesn't have to be a felony, doesn't have to be an actual criminal

01:23:22.820 misdemeanor, has to be that or what?

01:23:24.960 How would you do it in a line or two?

01:23:26.600 It has to be criminal type behavior of the sort like treason and bribery.

01:23:31.980 Justice Scalia put it very well once when he said, when you say that a person is a great

01:23:40.240 competitor like Joe Lewis and Jackie Robinson and Brady and others, the others you don't

01:23:50.900 fill in at that point are people in the stock market.

01:23:54.260 You fill in somebody else who's an athlete.

01:23:56.440 When you have a whole series of things, treason, bribery or other high crimes and misdemeanors,

01:24:02.500 the others have to be like treason and bribery and maladministration and abuse of power and

01:24:08.700 obstruction of Congress are not like treason and bribery.

01:24:13.140 They're like putting Sam Walton into the list of great competitors after you have Tom Brady and

01:24:18.680 Joe Lewis and other great athletes.

01:24:22.340 So even by any kind of just grammatical look, you see that the framers had in mind criminal

01:24:30.320 type behavior.

01:24:32.160 OK, so here's here's I was looking around for a practical explanation of the opposite

01:24:37.220 argument.

01:24:38.240 And I'm not a huge fan of this website, but I'm going to quote them anyway.

01:24:41.920 It's lawfare.

01:24:43.200 They're pretty hard left.

01:24:44.380 So here's how they this is their response, that it's just absurd that you could say,

01:24:49.760 you know, that it has to be some sort of criminal behavior.

01:24:54.660 It has to be incitement under Brandenburg in order for it to be impeachable.

01:24:58.000 Their argument is, of course, an abuse of power, something less than criminality, something

01:25:01.380 less than incitement under Brandenburg is impeachable.

01:25:03.840 And this is what they say.

01:25:04.600 And I'm quoting here.

01:25:05.920 Imagine if Trump had responded to the Charlottesville riots with an impassioned speech in defense

01:25:10.400 of white nationalists and the need for street justice.

01:25:12.880 Let me just finish as a paragraph.

01:25:15.080 Imagine if the president, after the death of Ahmaud Arbery, a black jogger pursued and

01:25:18.520 shot by three white men, responded with a public statement declaring that the victim

01:25:22.620 deserved his fate and used racial slurs in saying that such people needed to learn to

01:25:26.980 stay in their own neighborhoods.

01:25:28.580 Imagine if the president invited leaders of white national nationalist groups to join him

01:25:32.760 on stage at a rally and gave his own version of Confederate Vice President Alexander

01:25:37.220 Stevens's speech, declaring that the American government is founded upon the great truth.

01:25:41.600 This is a quote inside a quote that the Negro is not equal to the white man, that slavery,

01:25:46.680 subordination to the superior race is his natural and normal condition.

01:25:50.640 Last one.

01:25:51.520 Imagine if the president told a public audience that it would be fitting and proper if Nancy

01:25:55.560 Pelosi and Chief Justice John Roberts got what was coming to them, which was a bullet

01:25:58.920 between the eyes.

01:26:00.540 Their point is we would absolutely get rid of such a president via impeachment.

01:26:05.100 And we wouldn't care if it was an incitement under Brandenburg or didn't technically qualify

01:26:09.800 as a high crime or misdemeanor.

01:26:12.360 Well, I think you have to distinguish all of those.

01:26:14.460 The first of them all were protected by the Constitution.

01:26:17.120 It's very clear.

01:26:17.920 You can say whatever you want about any.

01:26:19.480 That's right.

01:26:20.560 Holocaust.

01:26:21.420 You can say Jews are greedy.

01:26:23.180 You can say that Jews send lasers from outer space and cause forest fires.

01:26:28.020 You can say whatever you want about any group.

01:26:30.580 You can promote white nationalism.

01:26:32.540 You can promote communism.

01:26:33.720 I grew up during McCarthyism when that was prohibited.

01:26:36.360 We civil libertarians fought in favor of allowing people to support communism, even though we hated

01:26:41.700 communism.

01:26:42.540 The last example is much more difficult.

01:26:45.080 Shooting the chief justice and the speaker of the house between the eyes.

01:26:49.100 It depends on the on the context.

01:26:51.820 If somebody wrote a book about it, that would be protected speech.

01:26:55.080 If somebody said it would be a good idea to assassinate the vice president or somebody else,

01:27:00.940 that's protected speech.

01:27:02.720 In fact, the United States does that.

01:27:05.120 We assassinated, obviously, terrorists.

01:27:08.260 We assassinated Soleimani.

01:27:10.160 We assassinated some other people.

01:27:11.820 And people have advocated it.

01:27:13.200 I have advocated targeted killing.

01:27:15.860 But I think if you went in front of a crowd and said, now go and shoot so-and-so, that would

01:27:21.980 probably be incitement.

01:27:23.040 But it supports my point.

01:27:24.520 My point is, if it's incitement, then it's not protected by the Constitution, then you

01:27:28.840 can't impeach.

01:27:29.300 But you're taking the easiest example.

01:27:31.020 Let's go back to the other ones.

01:27:32.160 Let's take the violence out of it.

01:27:33.740 Let's go back to the white nationalist stuff or on stage saying black people aren't as good

01:27:37.220 as white people.

01:27:37.940 They're not, you know, they're subjugated.

01:27:39.320 They're mere slaves.

01:27:40.920 If a president today did that, how would we get rid of him?

01:27:44.160 We wouldn't.

01:27:44.760 We'd have to vote him out of office.

01:27:46.260 We'd have to make sure that-

01:27:47.380 Oh, come on.

01:27:47.920 You have to wait.

01:27:48.520 So if he gets up there day one after taking the oath of office and says all that kind of nonsense,

01:27:53.260 we have to sit there for four years?

01:27:55.440 That's right.

01:27:55.920 We, the American public, can deal with that.

01:27:57.740 We fight back.

01:27:58.720 We defeat him in the marketplace of ideas.

01:28:01.920 But by the way, presidents have said things like that.

01:28:05.520 Woodrow Wilson has said things like that when he was president.

01:28:10.100 Well, it was a different time.

01:28:11.440 I mean, the public outrage may not have been what it would be today.

01:28:14.360 But what if you had a president who got up there, took the oath of office, and then immediately

01:28:17.660 after taking it said, I didn't, I didn't, my heart wasn't really in it.

01:28:21.440 This country sucks.

01:28:22.660 I love Russia.

01:28:23.680 And I'm going to do what's in the best interest as I see it from this point forward.

01:28:28.260 And then Congress would never allow him to have anything passed.

01:28:31.980 They would overrule him on everything.

01:28:33.820 Look, amend the country-

01:28:34.960 Come on.

01:28:35.460 This is, I was with you, you're like winning every argument till this one.

01:28:38.540 Let me tell you what would happen if a president ever did that.

01:28:41.200 Congress would convene that day and would amend the Constitution and would provide for

01:28:47.460 impeachment and removal for that kind of a statement.

01:28:50.340 But it's not in the Constitution today.

01:28:54.300 What you can't do is stretch the words of the Constitution to apply to conduct we don't

01:29:00.160 like.

01:29:00.680 We hate that conduct.

01:29:02.500 But we can't stop it under the Constitution as it is currently written.

01:29:08.280 I mean, I've heard the following example.

01:29:09.880 What if a president refused to defend America from an enemy?

01:29:14.220 Well, you know, that's happened.

01:29:16.160 There were people running for president saying, we shouldn't get into the Second World War.

01:29:19.800 We shouldn't get into the First World War.

01:29:22.580 The Vichy government surrendered to the Nazis.

01:29:27.080 Those are all terrible, terrible, terrible things.

01:29:29.920 They are not impeachable under the current flawed Constitution.

01:29:34.660 Change the Constitution.

01:29:36.320 But the one thing you cannot do is, under the current Constitution, violate the First Amendment.

01:29:43.640 The First Amendment permits all that kind of speech.

01:29:47.000 If you don't like it, amend the First Amendment.

01:29:49.700 I don't like people having guns.

01:29:51.680 I want to amend the Second Amendment.

01:29:53.580 But it's not going to happen.

01:29:55.380 But this would happen.

01:29:56.660 If you had a president making those kinds of statements, the Constitution would be amended.

01:30:01.140 The law responds to realities, but you cannot stretch and turn the Constitution into a document it's not.

01:30:09.880 And you cannot, you cannot constrain the First Amendment and make it apply to whatever the fashion of the day is.

01:30:17.520 As 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.

01:30:27.920 And she stood up against McCarthyism.

01:30:29.580 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.

01:30:42.920 I'm standing up for the Constitution.

01:30:45.800 Well, this is an interesting intellectual exercise.

01:30:48.880 I would say overall, I'm still I still believe that he didn't reach the Brandenburg incitement level at all.

01:30:55.280 I still have to confess, I'm not really persuaded that abusive power isn't an appropriate grounds for impeachment.

01:31:00.680 I don't think I'd ever say I would cite with lawfare over Alan Dershowitz.

01:31:04.520 But I am persuaded that there's been so many cases.

01:31:06.940 John, also like very conservative, smart scholars, John, you, Andy McCarthy, they're against you on this.

01:31:13.580 They believe abusive powers.

01:31:15.020 Look, I'm alone.

01:31:15.960 I've stood alone against academics from the beginning of my career.

01:31:19.680 I feel very comfortable standing alone.

01:31:22.620 I stand alone in favor of the First Amendment.

01:31:25.340 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.

01:31:33.860 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've talked about, they don't pass the shoe on the other foot test.

01:31:43.460 They would take exactly the opposite position if we had a liberal Democrat president who was being impeached.

01:31:48.780 So I don't take them seriously.

01:31:50.280 I do take seriously people who are nonpartisan.

01:31:53.040 But reasonably, we disagree.

01:31:54.760 I look at the long term impact on the First Amendment.

01:31:57.500 And I'm terrified that we live, we used to have a golden era of the First Amendment from 1960 to about 2000.

01:32:04.540 Now we're seeing that gold tarnished.

01:32:06.780 And particularly in the last four years, much of the responsibility lies on the shoulders of Donald Trump.

01:32:11.680 He provoked us.

01:32:12.960 He made people hate him.

01:32:14.340 And he recreated a reaction to freedom of speech, which is now hurting us terribly.

01:32:21.280 And he's gone.

01:32:23.060 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.

01:32:30.640 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.

01:32:40.440 And it would also help their case if they hadn't tried to impeach him, I think, literally nine times.

01:32:45.420 The Trump's Trump's brief points out this week.

01:32:47.840 This is literally the ninth time they've actually tried to impeach him.

01:32:51.720 Only two actually went forward.

01:32:53.060 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.

01:33:00.080 And in the end, again, it's a political matter, not a legal one.

01:33:03.760 It is a legal matter, too.

01:33:04.920 The Constitution matters.

01:33:06.260 You can't violate the Constitution in the name of politics.

01:33:09.660 And just if you want to think about the implications of what is going on, go back and read the letter from the scholars.

01:33:16.520 The First Amendment defense raised by President Trump's attorneys would be legally frivolous and therefore essentially disbarable.

01:33:24.920 That's where we're heading, that we can't even.

01:33:26.800 That's ridiculous.

01:33:27.900 Whether the First Amendment signed by Lawrence Drive, signed by Charles Freed, signed by Martha Minow,

01:33:34.920 signed by many, many distinguished scholars telling us we can't even debate whether the First Amendment applies.

01:33:41.900 And that if you argue that the First Amendment applies, then you are not a reasonable scholar or jurist and can't work at our law school.

01:33:49.520 So that is McCarthyism.

01:33:51.920 Well, let me ask you about that, because I did.

01:33:53.780 This isn't the exact same thing, but I was asking him about Ted Cruz and Josh Hawley.

01:33:57.940 And he's he's not a fan.

01:34:01.260 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.

01:34:09.600 And, you know, the Democrats have done that, too.

01:34:12.640 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.

01:34:19.380 They they have done that.

01:34:21.120 And so I don't really understand how you can, you know, reasonably make the argument that that's a disbarable offense.

01:34:28.280 But what do you say?

01:34:29.000 Well, remember that at Harvard Law School in 1950s, there was a great young man who made the law review and the Harvard law review kept him off because he had used to answer questions in front of the House on American Activities.

01:34:43.480 And lawyers were disbarred for defending communists.

01:34:46.620 And I will represent any lawyer who's disbarred for having challenged the vote.

01:34:52.660 I think the vote was fair.

01:34:54.560 I think this was not a stolen election.

01:34:56.440 This was not a fraudulent election.

01:34:57.860 It was a fair election.

01:34:59.000 But if a lawyer wants to make the opposite argument, I'm going to defend them.

01:35:02.960 The idea of disbarring lawyers, the idea of going after the 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.

01:35:16.260 That's not education.

01:35:17.880 That's propaganda.

01:35:18.640 We are in a crisis of education today.

01:35:21.500 And the crisis of education is manifest mostly by that letter of the 144 people showing intolerance toward arguments based on the First Amendment.

01:35:31.040 Shame on them.

01:35:32.980 We have to fight back.

01:35:34.220 Yes, fight.

01:35:35.060 I'm using fighting words.

01:35:36.480 I don't mean literally, but we have to fight back against this left wing McCarthyism.

01:35:40.560 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.

01:35:47.300 Well, I like that.

01:35:47.920 I'm with you on that one.

01:35:49.020 I rule in your favor on that.

01:35:50.420 They will not be disbarred.

01:35:52.020 Alan, such a pleasure.

01:35:53.340 It's great talking to you and to be continued.

01:35:56.800 Likewise.

01:35:57.060 Thank you.

01:35:57.620 Be well.

01:36:01.420 Today's impeachment arguments were brought to you in part by Superbeats Soft Chews.

01:36:06.020 Take two delicious chews a day for the health support and energy you need.

01:36:10.620 Get yours today at superbeats.com slash mk.

01:36:13.780 And don't forget to subscribe to the show.

01:36:16.280 Go on there.

01:36:16.880 Give me a review.

01:36:17.840 Let me know what you thought.

01:36:18.660 Let me know how you are ruling.

01:36:20.780 You are the ultimate judge because this really is a political matter at heart,

01:36:25.720 and you're supposed to technically control your senators.

01:36:28.240 They do ultimately answer to you.

01:36:30.140 So how would you rule?

01:36:31.160 Try to take your politics out of it just a little.

01:36:33.540 Who had the better legal argument?

01:36:36.220 I'd love to know your thoughts.

01:36:37.860 And subscribe while you're there.

01:36:40.020 Download while you're there.

01:36:40.820 And get ready because next show, Friday, Adam Carolla.

01:36:45.420 And he's got thoughts on AOC.

01:36:48.580 Don't miss that.

01:36:49.360 Thanks for listening to The Megyn Kelly Show.

01:36:52.220 No BS, no agenda, and no fear.

01:36:56.700 The Megyn Kelly Show is a Devil May Care media production in collaboration with Red Seat Ventures.

The Megyn Kelly Show - February 10, 2021

Arguing Impeachment, with Legal Titans Alan Dershowitz and Laurence Tribe ｜ Ep. 62

Episode Stats

Length

Words per Minute

Word Count

Sentence Count

Misogynist Sentences

Hate Speech Sentences

Summary

Transcript