impeachment. those articles included the crime of obstruction of justice, abuse of power and obstruction of construct. unlike how house managers in the entire house 45 years later in december 2019 proceeded here, bipartisan consensus in 1974 among house democrats and house republicans was the order of the day. it became apparent then that narrow partisan views aside, the house judiciary committee would step into the breach only in so far as evidence of criminal presidential conduct warranted it. the tapes of oval office conversation provided that evidence. the supreme court overruled a claim of executive privilege and ordered the release of tapes to the house judiciary committee. as a result three days later, the high crime of obstruction of justice including perjury at the

time teethered to a second article was approved by a vote of 27-11 and 28-10 respectively. the second article of impeachment alleged unlawful use of the cia and its resources including covert activity in the united states and interference with the law enforcement actions of the fbi. the crimes alleged were serious involving unlawful electronic surveillance of a opposing political party, attempts to alter testimony under oath. six republican house committee members joined all 21 democrats in supporting those two

articles. my congressman was among those six house members. another one of the six was a young congressman who maine who later became a member of this body serving with distinction as a senator and as bill clinton's secretary of defense. that was bill cohen. a third of the six was representati representative caldwell butler. together these six republicans made history. they did so with no sense of triumph and no fist bumps but only in the words of my congressmen with deep reluctance and only because the evidence was clear and unmistakable of unlawful activities by the president in a criminal cover up that was in the concluding language of the first article of

impeachment, contrary to his trust as president. as to the third article in the nixon meeimpeachment it was vot along party lines by a vote of 21-17. republicans object odd the third article in the face of the president's good faith prior claim to executive privilege by withholding certain evidence until such time the matter was resolved by the supreme court. my point in mentioning these three votes is simply this. count votes and do the math. i understand that you all have been deprived of your phones and thus a calculator app so i will do it for you. 27-11 vote was not only bipartisan, as i have indicated but overwhelmingly so. over 70%.

that is to say greater than a two-thirds super majority. that vote sent a powerful signal to the full house and indeed the senate that impeachment was overwhelmingly bipartisan and politically and legally legitimate. president trump nixon's fate was sealed and the result was inevitable. my congressman during the course of these proceedings commented simply and plainly that it was in his words a great american tragedy. the greater point was and is impeachment was never designed to be a partisan tool and to be undertaken only as a last resort. this brings me to what was intended by the framers of the

constitution relevant to impeachment. that subject will be addressed at some length. let me say that much has been said by house managers in reliance on alexander hamilton's off quoted statement in federalist 65. that's the one repeatedly taken out of context and cited in favor of an expansive scope of jurisdiction by congress overha word which proceed from misconduct of a public official constituted the abuse of or violation of some public trust. the irony that hamilton, the greatest proponent many this country of executive and presidential authority that perhaps ever lived should be front and center in this partisan impeachment effort to remove aduly elected president from office is lost on house impeachment managers. i dare say that hamilton would

roll over in his grave at the end of wall street in new york city to know that contrary to what he acknowledged in federalist number 69, that a president can only be removed from office upon conviction of, treason, bribery or other high crimes and misdemeanors. witnesses of a president duly elected by the people and for what? articles of impeachment that do not even allege crimes. president trump is right. that course, if sustained, cheapens the impeecachment procs and is an american tragedy all its own.

i quote, to argue as the manager do that the phrase other high crimes and misdemeanors was meant to encompass a wide range of offenses flies in the face of the clear sbenintent of the fra who carefully chose their language and knew exactly what risk they intended to protect against. close quote. one of those concerns and risks was that impeachment be limited and well defined. what is required both crimes be alleged and those crimes be of the type that, in particular, are so serious that they quote, subvert our system of government and would justify over turning a popular election, closed quote.

otherwise what you have is legislative tyranny. i respectfully submit is what alexander hamilton well understood and meant and so did my congressmen. that was hamilton fish the fourth. his great grandfather was born in 1808. later served as governor of new york. a united states senator before the civil war and notably as president grant's secretary of state. what i didn't realize at the time back in 1980, the original was named after his parent's best friend none other than alexander hamilton himself. what congressman hamilton fish

from the water gate era understood is the same historical lesson that jeffrey angle has written about in a co-authored 2018 book on impeachment. the charge must be treason, bribery or other high crimes and misdemeanors. it must be one for which clear and unmistakable proof can be produced. only if the evidence produced against the president is irrefutable such that his on constituents in this case, the 63 million people like me who voted for president trump, accept his guilt of the offense charged in order to overwhelmingly persuade a super majority of americans. finally, because it's the

president of the dwriets that we' -- united states that we're talking about and entrusted under all the executive power of the united states. an entire branch of government, removal from office cannot be base based upon an impeachable offense nothing than whatever a partisan majority of the house of representatives considers them to be. to supplement that 50 years ago, in 1970 of impeaching a supreme court justice, ford clarified that executive branch of imimpeachments are different because voters can remove the president and all persons holding office at their pleasure at least e every four years. to remove a president in mid-term it has been tried before and never done would

indeed rieequire crimes of the magnitude of treason and bribery. it was made about the danger presented through presidential impeachment of transforming an entire branch of government. when they remove aduly elected president they undue the vote of millions of mempbs on election day. that is not something, he continued, that senators should do lightly unless we slide toward a parliamentary gov government that our entire structure of government was designed to repudiate. in hammering home the uniqueness of presidential meeimpeachment emphasized the case of nixon. that is to say only when extremely high crimes pose a threat to our basic

constitutional system. a threat as high to democratic government as treason and bribery would the senate ever be justified in nullifying the votes of millions of persons and removing a president from office. my point is this, history, our american history matters. to listen to house the house managers would have it, articles of impeachment are as chuck rough warned a generation ago emp empty vessels can be poured any number of chanchs. in the case of president clin n clinton's impeachment, the articles charged crimes. the snats determined by its vote in effect that while those crimes, purge erjury and obstru of justice, those crimes were not high enough, crimes damaging to the beside politics to

warrant the president's removal from office. that judgment was within this body's to render. it's been accepted by the country, whether you agreed with it or not, as legitimate. it's also one that is consistent with hamilton's views and madison's too, concerning the proper scope of impeachment as a plied to a president. when i entered the scene and succeeded my colleague and co-counsel here kenneth starr, it was left for he to decide whether prosecution of president clinton of president clinton was warranted consistent with the department of justice principles of federal prosecution. that matter was exhaustively considered. in midst of a federal grand jury investigation that i commissioned, in order to decide first whether crimes and fact

had been committed. i found they had. i later said so publicly in the final report expressly authorized an mandated by congress concludesing the lewinsky investigation. i determined the prosecution of the president while in or once he left office would not be in national interest given alternative available means short of prosecution in order to hold the president accountable for his account. those means included a written knowledge by the president two years after his senate trial that his testimony under oath before the grand jury had been false and a related agreement to suspend his law license. the price paid by clinton was

high. no person,ical icallncluding th president is above the law. i credit the president to this day with agreeing to do what was necessary in order to exercise my discretion not to prosecute. for good of the country and recognizing the unique place that the president occupies in our government. accountability and discretion go hand in hand and permitted indeed demanded such an appropriate resolution. it was a credit they we were able to receive agreement in electing and re-electing

president clinton in the first place and successor george w. bush. i was mindful and exceedingly concerned throughout my tenure as counsel although crimes had been committed, bill clinton was the elected official placed in office and i was not. the lesson for me was a simple one that i'm sure every american citizen, whatever their own experience or political perspective can understand. be humble and act with humility never being too sure that you're right. today, 20 years later, what have we learned from that experience? i fear that the answer to that question is nothing at all. if these impeachment argues are sustained in favor of acquittal,

proof of high crimes is necessary to sustain the effort but no crime at all is sufficient so long as the majority in the house says so. during the past four months alone, we have witnessed the endless procession of legal theories used to sustain this partisan impeachment from treason to quid pro quo to bribery to extortion to obstruction of justice, to a violation of the control act to who knows what all is next. what you are left with then are constitutionally deficient articles abandoning any pretense of the need to allege crimes that are another vehicle or weapon, if you will in order to damage the president politically in an election year.

it is decidedly not in the country's best interest to have the prosecution of the grave issue of impeachment and the drastic process of removal from office become just politics by other means. anymore than it would be appropriate for the huge power of prosecution of offenses under the federal criminal code to be exercised not on the merits without fear or favor but instead as a raw, naked an pernicious exercise of partisan power and advantage. i have spent the better part of my professional life for over 30 years as a federal prosecutor for 13 years through two independent counsel investigations and as a defense lawyer for over 17 years trying my level best always to ensure that politics and prosecution do not mix. it must not happen here.

a standardless and partisan impeachment is ill legitimate and should be rejected as such overwhelmingly by this body i hope and subject or alternatively and if need be by only a partisan republican majority for the good of the country. turning now to what the house managers have alleged. it contained rather extraordinary statement. it says as follows and i quote, although president trump's action need not rise to the level of a criminal violation to justify impeachment, his conduct was criminal, closed quote. in short, we need not bother with an impeachment article charging the president with a crime. there's insufficient evidence to prove such a crime was committed but we're going to say the

president's conduct was criminal nonetheless. i have heard house manager hakeem jeffries argued that he and his team have evidence of an explicit quid pro quo by the president that is an explicit exchange of president trump in return for an act. as i have explained in as far back as november of last year, the problem with this legal theory is an unlawful quid pro quo are limited to those arrangements that are corrupt.

the measurable benefit that as investigation or the announcement of an investigation against the bidens might bring president trump is at best nebulous. i should add any effort to contend that this purported thing of value also conty constituted an illegal campaign contribution is fraught with doubt as a matter of law. the justice department has said as much. when an inkien ben fits in the form of campaign interference is alleged to be illegal, none of this would permit the findings supported by clear and unmistakable evidence of a violation of law necessary to sustain impeachment as an abuse of power. proof of an explicit quid pro

quo is nowhere to be found in the articles of impeachment. it would have required a different telephone call than the one president trump had with ukraine president zelensky. here's the deal. and followed but by linking a demand for an investigation of the bidens to the provision or release of foreign aid. none of that was said or ever happened. the call transcript demonstrates that beyond any doubt. the demand characterization creeps into this phone call as

army lieutenant colonel vindman where he equates a military experience of the commander in chief as the same thing as an order in the chain of command. while all of this may be true in the military, it goes without saying that president zelensky as the leader and head of a sovereign nation was not and is not in our military chain of command. i say that to you members of the senate as the son of a u.s. army colonel and vietnam war veteran buried in arlington national cemetery and a father of a u.s. army major serving with president trump's space force command in denver, with all due respect lieutenant colonel vindman's testimony is at best, distorted and unpersuasive. next, the purported link between foreign aids and the investigations or the

announcement of them is weak. the most sondland was able to give was the link may exist. to ambassador sondland as well as to senator ron johnson, the president was emphatic to ambassador sondland. the president said i want nothing. i want no quid pro quo. i just want zelensky to do the right thing. to do what he ran on, closed on. the senator johnson the same thing. just two words, no way. recognizing this flaw in the testimony house managers have focused on an alternate quid pro quo that it was conditioned on foreign head of state meeting at the white house in return for ukraine publicly nie lly announ

investigation of the bidens. i quote, it's beyond question that official white house visits constitute a formal exercise of governmental power within the meaning of mcdonald, closed quote. not so fast. actually the supreme court and mcdonald helpfully boiled it down to only those acts that constitute the formal exercise of government power and more specific and focused than a broad policy objective. exchange resulting in meetings, event, phone calls as those turns are typically understood as being routine according to the supreme's definition of an official act do not count. the fact the meeting involved was a formal one with all of the trappings of a state visit by the president of ukraine and hosted by the president of the united states, makes no difference. the supreme court is talking about an official act of a

formal exercise of decision making power. not the formally of the visit. even if the allegation war trer true, this could not constitute a quid pro quo. the vote was 9-0. in any event the coveted meeting and it was after all just a meeting, whether at the white house or not was not permanently withheld. it later happened between the two presidents at the united nations in new york city at the first available opportunity in september, 201. the argument by chairman jerry nadler that this call represented a quote extortion demand is ridiculous. no pressure was exercised or

exerted during the call. you kr ukrainian officials have denied that any such pressure existed. in deed to the contrary, the evidence strongly suggest ukraine was perfectly capable of resisting any efforts to entangli entangle itself in united states domestic party politics and partisanship. what then remains of the first article of impeachment? no crimes were committed. what exactly is left it's not treason. ukraine is our ally, not our enemy or adversary is russia is not our enemy, only our adversary. it's not bribery. there's no quid pro quo. it's not extortion, no pressure. it's not an ill leegal foreign campaign contribution. the benefit of the announcement of an investigation is not

tangible enough to constitute an inkind campaign contribution warranti warranti warranti warranting prosecution under federal law. the u.s. government accountability office has decided contrary to the position of the executive branch office of management and budget that while the president may te temporarily withhold funds me may not do so with policy priorities contrary to the will op congress. the president's response to this interbranch dispute between k g congress was to exert his authority over foreign policy po

determine the timing of the best use of funds. the president will comply with the constitution's faithful execution of the law requirement of his oath of office. this issue has come up before with other presidents. there is a huge constitutional debate among legal scholars about who is right. law review articles have been written about it. one has recently as last june in the harr varvard law review. congress through its arm, the gao, have an opposing view from that of the administration and omb. big surprise. i am reminded of one of president kennedy's press where

he was asked where it was concluded he was a total failure as president. he said i'm sure it was passed unanimo unanimously. that is all that this is here, politics. no more, no less. in the end, what are we talking about? the temporary hold was lifted and fund wrs released as they had to be under the law and as acknowledged was required by none other acting chief of staff mick mulvaney, 1 da9 days befor the end of the fiscal year. an alleged violation can no more sustain an impeachment article than can an assertion of executive privilege in opposition to a congressional subpoena absent a final decision of a court ordering compliance with that subpoena. mi mere assertion of a privilege is a constitutional perogative.

yet, in a last ditch effort to refrain its first article of impeachment on abiuse of power, house managers as part of the house judiciary report have gone back into history. always a treacherous endevour for lawyers, they argue that president andrew johnson's impeachment from over 150 years ago following the end of the civil war and during reconstruction was not about a violation of the tenure of office act chb was the violation charge but rested on his use of power with illlegitimate motives. house managers claim that president john's removal of

lincoln secretary of war edward stanton without congress's permission in violation of a congressional statute is best understood with revisionist hiepds sight to be motivated not by his desire to violate the statute but on his ill legitimate use of power to subordinate african-americans following the civil war. that may be true. it's another thing all together to claim that motive actually was the basis of johnson's impeachment. professor lawrence tribe who was the source for this misguided reinterpretation of the johnson impeachment substitutes his own self-described far more compelling basis for johnson's removal from office from the one that the house of representatives actually voted on and the senate considered at his impeachment trial.

there's been an awful lot of that going on. at any rate, a president so called ill legitimate motives in wielding power can no more frame and legitimatize the johnson impeachment than recasting the nixon impeachment. again, all of that may be true but it has nothing really to do with impeachment. it's also bad history as recognized 65 years ago by john f kennedy, president johnson was saved from remufl of office ova one vote.

quoting now from senator ross in profiles encouraged who explained his vote as follows. quote, the independence of the executive office as a coordinate branch of government was on trial. if the president must step down upon insufficient proofs and from partisan considerations, the office of the president would be degraded, closed quote. so too here. contrary to the fashion now, senator ross' action was praised and accepted several decades after his service and many years later by president kennedy as a courageous stand against legislative mob rule. professor dershowitz will have more to say on that later. the point is our history demonstrates that presidents should not be subject to impeachment based upon bad or

ill motives and any thought to the contrary should strike you, i submit, as exceedingly dangerous to our constitutional structure of government. if that were the standard, what president would ever be safe by way of impeachment from what hamilton decried as the quote persecution of an designing majority in the house of representatives, close quote. the central import when added together with the obstruction of justice article is a result not far off from what one citizen tweet i saw back in december described as article one, democrats don't like president trump. article two, democrats can't beat president trump. president trump is not removalable from office just because a designing majority in the house as represented by

their managers believes that the president abused the power of his office during the july 25th call with president zelensky. the institution requires more. to ignore proving a crime was committed is to sidestep the constitutional design as well as the lessons of history. i know that many of you may come to concludes or may have already concludesed that the call wasless than perfect and i have said on any number of occasions previously and publicly, that it would have been better in attempting to spur action by a foreign government in coordinating late enforcement efforts with our government, to have done so through proper channels. while the president enjoys the power to do otherwise, there is consequence to that action as we have now witnesses. that is why we are all here. it is another thing all together

to claim that such conduct is clearly and unmistakably impeachable as an abuse of power. there can be no serious question that this president or any president acts lawfully in requesting foreign assistance with investigations into possible corruption even when it might potentially involve another politics. to argue would i say would be to engage in the contention that the presidential candidate or any candidate enjoys absolute immunity during investigation during the course of a campaign. i can tell you that's not the case from my own experience. i did so during 2000 in investigating hillary clinton while running for office to become a united states senator to new york to which she was elected. my point is this, this president has been impeached and stands trial here in the senate for allegedly doing something in directly about which he was entirely permitted to do

directly. that cannot form a sbas as an abuse of power to warrant his removal from office. turning now to the second article of impeachment. as we argued in our written trial brief at the out set it must be noted it's a little odd for house managers to be arguing that president trump somehow obstructed congress when he declassified and released what is the central piece of evidence in this case and that's the cry transcript of the july 25th call as well add the call with president zelensky that proceedproceed it. release of that full call record should have been the end of this claim of obstruction but apparently not. we're relying on the united states versus nixon. house managers have proffered a

broad claim that an objection by the president based on executive privilege could only be of come in the limited circumstances presented there where the information caught was also material to the prepation of the defense by his co-conspirators in pending cases away trial. in other words, a defendant's sixth amendment right to fair trial in collateral proceedings was what the court found depositive in rejecting the president's claim of privilege to present congress from gaining access to watergate tapes. all subsequent administrations have defended that narrow exception. thus it should be a matter of accepted wisdom and historical

premise that a president cannot be removed from office for invoking established legal rights defenses privileges and immunities even in the face of subpoenas from house committees. back in 1998 professor prescribed called out any argument to the contrary as frivolous and dangerous. house managers respond that the president has no right to defy a legitimate subpoena particularly when their impeachment efforts are at stake. thus, it's an issue rising to the level of an interbranch conflict in our system of government only accommodation between the branches and courts can finally resolve 37 the house chose to forego that course and to plow forward with impeachment. house managers cannot be heard to complain now that their own strategic choice can form any basis to blplace blame on the

president and impeach him on that basis and seek his removal from office. that's no basis as all. compliance only when a court with jurisdiction says so in a final decision. in some calling a issue psubpoe legitimate, as house managers have done here, does not make it so. an analogy taken from baseball that i believe the chief justice might appreciate may recollects the point, a long time major league empire named bill clem was once asked during a game where a ball was fair or foul. the empire replied, it ain't

nothing until i call it. i say the same thing to chairman schiff now. it's not a legitimate and therefore enforceable subpoena until a court says that it is. proceeding the clinton impeachment and in response to demands not just from the white water independent counsel but several other of the independent counsel investigations that were ongoing at that time and again i know, i was in one of them. the white house repeatedly asserted claims of executive privilege. many of those claims were litigated for months, not weeks and in some cases for years. when i hear mr. schiff's complaint that the house's request for don mcgahn's testimony, grand jury material and other document vs been drawn out since april of last year, i can only say in response, boohoo. did i thing at time that many of those claims of privilege were frivolous and abuse of the

judicial process, of course. that was the determination of the house judiciary committee during the clinton impeachment. what did they do about it? nothing. the committee properly concluded then that those assertions of privilege even if ill founded did not constitute an impeachable offense. did i believe the clinton's administration impacted our investigation? you bet i did. i said so in the final report but never did i seriously consider those efforts by the white house, although endlessly frustrating and damaging to the independent counsel eets investigation would constitute the crime of obstruction of justice or any related impeachment offense for obstruction of congress. instead, i and my colleagues did the best that we could in reaching accommodation with the white house where possible or

through litigation when necessary in other words to complete the task at hand to the best of our ability to do so. any contention of what has transfired here assertion of valid and well recognized claims of privileges and immunities is somehow contrary to law and impeachable is ludicrous. in short, to add to the parade of criminal offenses not sustained on this impeachment, there was no obstruction of justice or of congress, period. the president the not be impeached and removed from office what he has every right to assert. that is true now as it's been true of every president all the way back to president george washington. in short, as to both articles of impeachment, all the president is asking for here is basic fairness and to be held to the very same standard that both house speaker nancy pelosi pr

proffpro proffered in march 201 a9 and i the clinton impeachment in 1998. the evidence must be nothing less than quote, compelling, overwhelming and bipartisan, close quote. we agree. no amount of witness testimoy, documents, high fives, fist bumps, signing pens or otherwise are ever going to be sufficient to sustain this impeachment under the democrats own standard. with that i'm ready to concludes. the president's only instruction to me for this trial was a simple one. do what you think is right. as a country, we need to put a stop to doing anything and everything that we can do and start doing what's right and

what needs to be done in the nation's best interest. a brazenly partisan impeachment by house democrats is not in the best interest of this country. in the final analysis we will all be judged in the eyes of history of whether in this moment we acted with the coun y country's welfare in mind whether than advancing the cause of partisan political advantage. i have always believed as an article of faith that in good times and in hard times and even in bad times with matters of importance at stake that this country gets the big things right. i have seen that in my own life and from my own experience even in washington, d.c. members of the senate, this, what lies before you now, is just such a big thing. the next election awaits.

election day is only nine months away. i quote, that's the day when we reach across the aisle and hold hands. democrats and republicans and we say, win or lose, we will abide by the decision. it's a solemn event, presidential elections, and they should not be undone lightly or just because one side has political clout and the other one doesn't, close quote. otherwise, as abraham lincoln warned us, if the minority will not acquiesce, the government must cease so in rejecting the majority principal, anarchy in some form is all that is left, closed quote. this impeachment and the refusal to accept the results of the last election in 2016 cannot be

left to stand. for the reason stated, the arms of impeachment should be rejected and the president must be acquitted. members of the senate, thank you very much. with that mr. chief justice, i yield back to mr. sekulow. >> mr. chief justice, we're going to delve into the constitutional issues for a bit and our presenter is professor alan dershowitz. after serving as law clerk for judge david vaslon for the u.s. court of appeals for the district of columbia, he served as a law clerk for justice author. he became the youngest tenured professor at harvard law school.

he taught generations of law students, including several members of this chamber. classes ranging from constitutional litigation, legal ethics. he will address the constitutional issues raised by these articles. >> mr. chief justice, distinguished members of the senate, our friends, lawyers, fellow lawyers, it's a great honor for me to stand before you today to present a constitutional argument against the impeachment and removal not only of this president but of all and any future presidents who may be charged with the unconstitutional grounds of abuse of power and obstruction of congress. i stood before you today as i

stoods in 1973 and 1974 for the protection of constitutional and procedural rights of richard nixon and whose impeachment i personally favored. bill clinton who i admired and whose impeachment i opposed. i stand for the application and misapplication of the constitutional criteria in every case and against any president without regard to whether i support his or her parties or policies. i would be making the very same constitutional argument, had hillary clinton, for whom i v e voted, had been elected and a republican house had voted to impeach her on these unconstitutional grounds. i am here today because i love my country, and our constitution. everyone in this room shares that love.

i will argue that our constitution and its terms, high crimes and misdemeanors, do not encompass the two articles charging abuse of power and obstruction of congress n offering these arguments, i stand in the footsteps and in the spirit of justice benjamin curtis, who was of counsel to impeach president andrew johnson and who explained to the senate that, quote, a greater principle was at stake than the fate of any particular president. and of william everetz, former secretary of state, another one of andrew johnson's lawyers, who reportedly said that he had come to the defense table not as a partisan, not as a sympathizer, but to defend the constitution. the constitution, of course, provides that the senate has the sole role and power of exercising all impeachments. in exercising that power, the senate must consider three

issues in this case. the first is whether the evidence presented by the house managers establishes by the appropriate standard of proof, proof beyond a reasonable doubt, that the factual allegations occurred. the second is whether if these factual allegations occurred, did they rise to the level of abuse of power and/or obstruction of congress? finally, the senate must determine whether abuse of power and obstruction of congress are constitutionally authorized criteria for impeachment. the first issue is largely factual and i leave that to others. the second is traditional and constitutional law and i'll touch on those. the third is a matter of pure constitutional law. do charges of abuse and obstruction rise to the level of impeachable offenses under the constitution? i will begin as all constitutional analysis begins, with the text of the constitution governing impeachment.

i will then examine why the framers selected the words they did as the sole criteria, authorizing impeachment. in making my presentation, i will transport you back to a hot summer in philadelphia and a cold winter in washington. i will introduce you to patriots and ideas that help shaped our great nation. to prepare for this journey, i have immersed myself in a lot of dusty old volumes from the 18th and 19th century. i ask your indulgence as i quote from the wisdom of our founders. this return to the days of yesteryear is necessary because the issue today is not what the criteria of impeachment should be, not what a legislative body or constitutional body might today decide are the proper criteria for impeachment of a president, but what the framers of our constitution actually chose and what they expressly

and implicitly rejected. i will ask whether the framers would have accepted such vague and open-ended terms as abuse of power and obstruction of congress as governing criteria. i will show by a close review of the history that they did not and would not accept such criteria for fear that these criteria would turn our new republic into a british-style parliamentary democracy in which the chief executive's tenure would be in the words of james madis madison, the father of our constitution, at the pleasure of the legislature. the conclusion i will offer for your consideration is similar. they are not identical to that advocated by highly respected justice benjamin curtis who, as you know, descented from the supreme court's notorious decision? dred scott and served as counsel to president andrew johnson in

the senate impeachment trial. he argued, and a quote, there can be no crime. there can be no misdemeanor without a law, written or unwritten, expressed or implied. in so arguing, he was echoing the conclusion reached by dean theodore dwight of the colombia law school who wrote in 1867 just before the impeachment, unless a crime is specifically named in the constitution, treason and bribery, impeachments like indictments can only be instituted for crimes committed against the statutory law of the united states, as judge starr said earlier today, he described that as the weight of authority being on the side of that proposition at a time much closer to the framing than we are today. the main thrust of my argument, however, and the one most relevant to these proceedings is that even if that position is not accepted, even if criminal

conduct were not required, the framers of our constitution implicitly rejected, and if it had been presented to them would have explicitly rejected such vague terms as abuse of power and obstruction of congress as among the enumerated criteria for impeaching a president. you will recall among the articles of impeachment against president johnson were accusations of noncriminal but outranl o o outrageous misbehavior. did attempt to bring into disgrace, ridicule, hatred and attempt of reproach, the constitution of the united states. article xii charged johnson, denied that the legislation of said congress was obligatory upon him. pretty serious charges. here is how justice curtis

responded to these noncriminal charges. quote, my first position is that when congress speaks of treason, bribery and other crimes and misdemeanors it refers to and includes only high criminal offenses against the united states, made so by some law of the united states, existing when the acts complained of were done and i say, he continued, this is plainly to be deferred from each and every one of the provisions of the constitution on the subject of impeachment. and i will briefly review those provisions of the constitution with you. judge curtis' interpretation is supported. indeed, in his view it was compelled by the constitutional text. treas treason, bribery, other high crimes and misdemeanors, other high courtrooms and misdemeanors must be akin to treason and bribery. curtis cited the latin phrase, referring to a classic rule of interpretation that when the meaning of a word that's part of a group of words is uncertain,

you should look to the other words in that group that provide interpretive context. late justice antonin scalia gave an example. if one speaks of mickey mantle, michael jordan and other great competitors, it does not necessarily refer to sam walton, a great competitor but in business or great competitor on the battlefield. the last five words should be interpreted to include only serious criminal behavior akin to treason and bribery. justice curtis then reviewed the other provisions of the constitution that relate to impeachment. first, he started with the provision that says the president of the united states shall have the power to grant reprise and pardons, listen now, for offenses against the united states except in cases of

impeachment. if impeachment were not an offense against the united states, was not based on an offense against the united states, there would have been no need for any constitutional exception. he then went on to sa second provision. the trial of all crimes except in cases of impeachment, shall be by jury. this demonstrated, according to curtis, that impeachment requires a crime. but unlike other crimes it does not require a jury trial. you are the judge and the jury. he also pointed out that impeachment trial by the express words of the constitution requires an acquittal or a conviction, judgments generally rendered only in the trial of crimes. now president johnson's lawyers, of course, argued in the alternative, as always lawyers do, when there are questions of fact and of law.

he argued that johnson did not violate the articles of impeachment, as you heard from other lawyers today, but even if he did, that the articles do not charge impeachable offenses, which is the argument that i am making before you this evening. justice curtis' first position, however, is that the articles did not charge an impeachable offense because they did not allege high crime offenses against the united states. according to harvard historian and law professor nicholas bowie, curtis' constitutional arguments were persuasive to at least some senators, who were no friends of president johnson, including the co-authors of the 13th and 14th amendments, as senator then later put it, judge curtis gave us the law and we followed it. senator james w.grimes echoed curtis, by refusingo