I didn't watch the Dershowitz argument in real time. Catching up belatedly and ... OMG at minute 2:12, Dershowitz opens by associating himself with a lawyer who defended Andrew Johnson, Benjamin Curtis. Dershowitz must have Wikipedia'ed Curtis briefly to assure himself ...
... that Curtis was not on the wrong side of the Civil War. Curtis had been on US Supreme Court in 1850s, dissented from Dred Scott. Whew! Safe - right?
But if Dershowitz or his research assistant had done just a few minutes' more work, they would have learned ...
But if Dershowitz or his research assistant had done just a few minutes' more work, they would have learned ...
... that the core of Curtis' defense of Johnson was that an impeachment must depend on the hearing of evidence! Some excerpts from his argument, red highlighting by me ... 
Curtis in 1868 argues that it is the House impeachers who refused to consider evidence and that the prosecution should therefore fail. But his argument equally condemns a presidential defense that rests upon the suppression of evidence.
I'm not saying that Curtis in 1868 is the final word on any of this. I'm just gobsmacked that an advocate would open his case by associating himself with a predecessor WHOSE MOST FAMOUS SPEECH IN HIS LIFE directly contradicts and condemns what the advocate is doing at that moment
OK, back to viewing
OK , sorry, don't intend to stale-blog (if that's the opposite of live-blogging) this argument, but at 2:43, Dershowitz smuggles in a claim that the standard of proof at an impeachment is "beyond a reasonable doubt." That's not the standard! In fact, the Senate in 1986 voted ...
... in a judicial impeachment trial to REJECT the "beyond a reasonable doubt" standard. It was not a close vote: 75-17 nytimes.com/1986/10/08/us/…
The Senate is "sole judge" of impeachments, it can use any standard it wants
The Senate is "sole judge" of impeachments, it can use any standard it wants
At 5:47, Dershowitz does something very sneaky ...
He wants to build an argument that a president cannot be impeached without a violation of a federal criminal statute. It's not enough that a president has done something abusive, corrupt or disloyal- the impeachers must point to an item in the US Code to justify the impeachment
But that instantly raises a problem! Nobody in 1787 knew whether there ever *would* be a federal criminal code, or if so, what would be in it. In 1790, Congress passed its first criminal laws: piracy, counterfeiting, treason. That was it till after the Civil War.
But meanwhile, three federal judges *were* impeached before the Civil War, and one was removed - for habitual drunkenness, which was hardly illegal in 19th century America!
So how does Dershowitz surmount this historical problem in a case he claims rests on his exhaustive historical research? Dershowitz cites Theodore Dwight law.columbia.edu/deans-office/d… who argued that to impeach there must be violation of a law "written or unwritten, express or implied"
Dershowitz pivots from that citation to a claim that to impeach there must be a violation of a federal criminal statute of a kind that hardly existed at all when Dwight wrote in 1867. But of course Dwight was saying the *opposite* of what Dershowitz wants him to say ....
... if a law can be written or UNWRITTEN, express or IMPLIED, we are talking about laws *not* found in statute books!
Once again, Dershowitz's sources say the opposite of what he says they say.
Once again, Dershowitz's sources say the opposite of what he says they say.
In 1867, almost all US states had a "common law of crime." Extortion was a crime even if nobody had gotten around to drafting that crime into statute.
In 2019, soliciting a bribe *is* a federal crime. As GAO ruled, it's illegal too for president to hold funds voted by Congress.
In 2019, soliciting a bribe *is* a federal crime. As GAO ruled, it's illegal too for president to hold funds voted by Congress.
