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 refusing to accept high crimes and misdemeanors

that changes, according to the law of each senator's judgment, enacted in his own bosom after the allege commission of the offense. though he desperately wanted to see president johnson, who he e despised, out of office, would be construed into approval of impeachments as part of future political machinery. according to him, curtis' constitutional arguments may well have contributed to the decision by at least some of the seven republican dissidents to defy their party and vote for acquittal, secured by a single quote. professor bowie has an article in "the new york times" that repeats hi view that, quote, impeachment requires a crime. he now assesses that articles of

impeachment do assert a crime. he is wrong. a case decided more than 200 years ago now, the united states supreme court ruled that federal courts have no jurisdiction to create common law crimes. crimes are only what are in the statute book. so, professor bowie is right that the constitution requires a crime for impeachment, but wrong when he says that common law crimes can be used as a basis for impeaching, even though they don't appear in the statute books. i'm not here arguing that the current distinguished members of the senate are in any way bound, legally bound by justice curtis' arguments or those of dean dwight, but i am arguing that you should give them serious consideration. the consideration to which they are entitled by the eminence of their author and the role they may have played in the outcome of the closest precedent to the

current case. now i want to be clear, there's a nuance difference between the arguments of curtis and white and the argument i'm offering here today. curtis argued there must be a specific violation of pre-existing law. he recognized at the time of the constitution, there were no federal criminal statutes. of course not. the constitution established the national government. we couldn't have statutes prior to the establishment of our constitution and our nation. this argument is offered today by proponents of this impeachment on the claim that framers could not have intended to limit the criteria of impeachment to criminal-like behavior. justice curtis addressed that issue and that argument head on. he pointed out that crimes, such as bribery, would be made criminal by the laws of the united states, which the framers of the constitution knew would

be passed. in other words, he anticipated that congress would soon enact statutes, punishing and defining crimes such as burglary, extortion, perjury, et cetera. he based his argument in part on th that. treason was already included as a crime, defined in the constitution itself, and then it included other crimes. but what justice curtis said is that you could include laws written or unwritten, expressed or implied, by which he meant common law which at the time of the constitution, there were many common law crimes and weren't enforceable, even federally, until the premium court, many years later, determined that common law crimes were no longer part of federal jurisdiction. the position i've derived from the history would have accrincl

criminal-like conduct akin to treason and bribery. there need not be, in my view, conclusive evidence of a crime that would necessarily result in a criminal conviction. let me explain. for example, if the president were to receive or give a bribe outside of the united states and outside of the statute of limitations, he could not technically be prosecuted in the united states for such a crime, but i believe he could be impeached for such a crime, because he committed the crime of bribery, even though he couldn't technically be accused of it in the united states. that's the distinction that i think we draw. for a president committed perjury or obstruction of justice, he could be charged with these crimes as impeachable offenses because these crimes, though not specified in the constitution, are akin to treason and bribery. this would be true even if some of the technical elements, time and place, were absent. what curtis and dwight and i

agree upon, this is the key to the impeachment in this case. please understand what i'm arguing. is that purely noncriminal conduct, including abuse of power and obstruction of congress are outside the range of impeachable offenses. that the co-argument i'm presenting today. this view was supported by text writers and judges, william russell, whose 1819 treatise on criminal law was a bible between criminal lawyers and others, defined high crimes as such immoral and unlawful acts are as nearly allied and equal in guilt to a felony. and yet owing to the absence of some technical circumstances, technical circumstances, do not fall within the definition of a felony. similar views were expressed by

some state courts. others disagreed. curtis considered views of dwight, russell and others, after the careful study of text in history, are not bonkers, absurdist, legal clap trap or other demeaning epithets thrown around by partisan supporters of this impeachment. they have the weight of authority. they were accepting by the generation of founders and the yen rations that followed. approximate they are not accepted by academics today that shows a weakness among the academic academics, not among the founders. those who disagree with curtis' textural analysis respond with reasonable counter interpretati interpretations, not name calling. if justice curtis' arguments and those of dween dwight are rejected, i think proponents of

impeachment must offer alternative principles, alternative standards for impeachment and removal. we heard 1970 congressman gerald ford, who i greatly admired, said the following. in the context of an impeachment of a justice, impeachable offense is whatever the majority of the house and representatives consider it to be at a given moment in history, et cetera. congresswoman maxine waters put it more succinctly. in the context of a presidential impeachment, here is what she said. impeachment is whatever congress says it is. there is no law. but this lawless view would place congress above the law. it would place congress above the constitution. for congress to ignore the specific words of the constitution itself and substitute its own judgments

would be for congress to do what it is accuse of the president of doing and no one is above the law. not the president and not congress. this is precisely the kind of vow expressly rejected by the framers who fear having a president serve at the pleasure of the legislature and precisely the view rejected by senator jay grimes when he refused to sp high crimes and misdemeanors that would change at the view of each senator. in the words of gubernor morris, that impeachment must be enumerated and defined. those are obliged to demonstrate how the criteria accepted by the house in this case are enumerated and defined in the constitution. the compelling textural analysis provided by justice curtis is

confirmed by the date in the constitution, by the federalist papers, writings of blackstone and the writings of alexander hamilton, heavily relied on by lawyers at the time of the constitution's adoption. there were, at the time of the constitution's adoption, two great debates that went on. and it's very important to understand the distinction between these two great debates. the first hard to imagine today, but the first was should there be any power to impeach a president at all? and there were several members of the founding generation and of the framers of the constitution who said no. who said no, a president shouldn't be allowed to be impeached. the second, and the second is very, very important in our consideration today. if a president is to be subject toim peachment, what should the

criteria be? these are very different issues and they are often errroneously con flated. during the broad debate about whether a president should be subjected to to impeachment, proponents of the impeachment use vague and open-ended terms such as unfit, obnoxious, corrupt, misconduct, misbehavior, negligence, malpractice, perfortry, and maladministration. they worry that a president might, quote, pervert his administration into a scream of speculation, that he might be corrupted with foreign influence and, yes, had is important. this he might have great opportunities of abusing his power. s they are concerns that led the framers to decide that the president must be ubt to

impoachment. not a single one of the framers justifying a need for impeachment and removal mechanism must automatically be accepted as a specific criteriaion for impeachment. far from it. morris aptly put it, corruption ought to be impeachable but the cases ought to be enumerated and defined. the great pha lchlt lchfallacy failed to understand the critical distinction between the broad reasons for needing an impeachment mechanisms and the carefully enumerated and defined criteria that should authorize the employment of this power wul weapon. let's assume that there is a

debate over regulating the content of social media, whether we should have regulations or kiln, civil litigations over twitter, facebook, et cetera. proponents of regulation might well site broad dangers such as false information, inprescript content, hate speech. those are good reasons for having regulation we it kim to enumerating and defining what should be prohibited such broad dangers with would have to be balanced against other important policies and the resulting legislation would be much narrower and more carefully defined than the broad dangers that necessitated some regulation. the framers understood and acted on this difference. i'm afraid many scholars and others failed to see this

distinction and cite some of the failures that led to impeachment mechani mechanism, they cite them as the criteria themselves. it is crucially important that the distinction be sharply drawn between arguments made in favor of impeaching and the criteria then decided upon to justify the impeachment specifically of a president. the frame remembers understood this. he down to the offenses of the many they thought a president might commit, should be impeachable, and left the rest to the voters to evaluate. some congressmen wanted to see the rez removed at their plech, as the uk prime minister can be with a vote of no confidence.

gubernor morris was against the dependency of the executive on the legislature, considering the legislature, you will pardon me quoting this, a great danger to be apprehended. i don't agree with that. james madison expressed concerns about the president being properly dependent on the legislature. others worried about a feeble executive. hearing these and other arguments against turning the new congress into a parliamentarian legislature, the founders set out to strike the broad provisions that authorized the impeachment of a president and need for specific criteria not subject fo legislative abuse or overuse. among the criteria proposed were malpractice, neglect of duty, malconduct, neglect in the execution of the office and this

word we'll come back to talk about. maladministration. it was a ponce to that last term, a term used in britain, for the criteria of pimment that madison responded to in such term. upon hearing madison's objections, other cry hooi crimes and misdemeanors were angle kate. abuse of power or obstruction of justice. history strongly suggests madison would have sla a opposed it and it would have been rejected. i'll come back to that argue a little later on when ooh talk about specifically abuse of power. madison worried that a partisan legislature could even musculoskeletal use therd,

disdemeanor. proprosed moving the trial to the nonpartisan supreme court. the protoefl was rejected. this does not mean, as some have suggested, that madison suddenly changed his mind and favored such misuse to expand the meaning of misbehavior. no. it meant that he feared misteerm could be abused. now the best evidence that the broad concerns cited by the framers to justify impeachment were not automatically accepted as criteria justifying impeachment is the manner by which the word incapacity, focus on that word, please, incapacity, was treated. madison and others focused heavily on the problem of what happens if the president becomes incapacitated? certainly a president who is

incapacitated should be be allowed to continue to preside over this great country. and everyone seemed to agree that the possibility of presidential incapacity is a good and powerful reason for having an impeachment provision. when it came time to establish criteria for fuelly removing a president, incapacity was not included? why not? presumeply bass twa too vague and capacity of a term. wilson was not impeached and remove. constitutiona amendment against abuse was required to remedy the daunting problem of a president who was deemed incapacitated. another reason incapacitation

was not included it's not akin to treason, bribery and it's not a high crime and misdemeanor. founders believed impeachable offenses must be criminal in nature and akin to high crimes. incapacity did not fit in. nothing criminal about it. the constitution had to be amended to include a different category of noncriminal behavior that warranted to removal i urge you to consider seriously that important part of the history of our adoption of our constitution. i think blackstone and hamilton also support this view. there's no disagreement that treason, bribery or other high crime crimes, those words require criminal behavior. the debate is only over the words "and misdemeanors."

the framers of the constitution were fully cognizant that misdemeanor was a species of crime. the book that was most often deemed authoritative was written by blackstone of great britain. here is what he says about this in the version that was available to the framers. >> a crime or misdemeanor is an act, committed or omitted. if the general definition comprehends both crimes and misdemeanors, which properly speaking are mere synonymous terms. mere synonymous terms. he then went on, though, common usage of crimes of a deeper while small folds and owe missions of less conseqence are comprised under the gentler name of misdemeanors only.

misdemeanors were not always so gentle. there was a category called capital misdemeanors where if you stole somebody's pig or other fowl, you could be sentenced to death. it's only for misdemeanor, don't worry. it's not a felony. there were misdemeanors that were capital in nature. moreover blackstone wrote that parliamentary impeachment, quote, is a prosecution, a prosecution of a ready-known and established law presented to the most high and supreme court of criminal designation. he observed a common her can be impeached but only for misdemeanors. this certainly suggests that blackstone deemed high misdemeanors to be a species of crime. hamilton is a little less clear on this issue and not surprisingly, because he was writing in federalist number 65,

he was writing not to define what the criteria for impeachment were. he was writing primarily in defense of the constitution as written, unless to define its provisions. but he certainly cannot be cited in favor of criteria, abuse of power, obstruction of congress nor impeachment voted along party lineses. greatest danger, in his words, is that the decision will be regulated more by the comparative strength of parties than the real demonstrations of innocent or guilt. in addition to using criminal term terms, innocence or guilt, hamilton also referred to, quote, prosecution and sentence. he party convicted should nevertheless be liable and held subject to a criminal trial as the reason not to have the president tried before the supreme court.

he felt double jeopardy before the same judiciary. these all sound in criminal terms. noncriminal interpretation of high crimes and misdemeanors insist that hamilton is on their side. and they cite the following words regarding the court of impeachment. i think i've heard these words quoted more than any other words supported in the broad view of impeachment. here is what he said. when describing the court of impeachment, the subjects of its jurisdiction, those are important words, the subjects of its jurisdiction, by which he meant treason, bribery, high crimes and other misdemeanors, are those that proceed from the misconduct of public men or otherwise from the abuse or violation of public trust. they are of a nature which may with peculiar proprietary may be dominated as political, as they relate chiefly to injuries done

immediately to the society itself. the criteria authorizing impeachment include the misconduct of public men or the abuse or violation of some public trust. that is a misreading. these words were used to characterize the constitutional criteria that are the subject of the swrurd of the court of impeachment, namely treason, bribery or other high crimes and misdemeanors. specified crimes are political in nature. they are the crimes that involve public men and misuse of public trust. hamilton was not expanding the specified criteria to include as independent grounds for impeachment, misconduct, abuse or violation. if anything, he was contracting them to require in addition to proof of the specified crimes also proof that the crime must be of a political nature.

this would exclude president clinton's private, nonpolitical crime. in fact, this is interesting, hamilton's view was cited by clinton's advocates as contracting, not expanding the meaning of high crimes. today some of these same advocates, you look at the same words and cite them as expanding its meaning. clinton was accused of a crime, perjury. it wasn't whether the constitution required a crime but whether clinton's alleged crime could be classified as a high crime in light of its personal nature. during the clinton impeachment i stated in an interview i did not think that a technical crime was required but that abusing trust could be considered. i said that. at that time, i had not done the extensive research on that issue, because irrelevant to the clinton case and i was not fully

aware of the compelling counter arguments. i simply accepted it as an issue that was not on the front burner at the time. this directly raises the issue of whether criminal behavior is required i've gone back and read all the relevant historical material as nonpartisan academics should always do and have now concluded that the framers did intend to limit criteria of impeachment to criminal-type act as kin to treason, bribery, and they certainly did not intend to extend it to vague, open-ended and noncriminal accusations such as abuse of power and obstruction of congress. i published this academic conclusion well before i was asked to present the arguments to the senate in this case. my switch in attitude, purely academic, purely nonpartisan.

nor am i the only participant in this proceeding who have changed their mind. several members of congress and several senators express different views regarding impeachment when the subject was president clinton than they do now. my colleague and friend, professor stribe, advising speaker pelosi now, wrote that a sitting president cannot be charged with a crime. now he has changed his mind. that's what academics do and should do, based on new information. if there are reasonable doubs about the intended meaning of high crimes and misdemeanors, senators might consider resolving these doubts by lenity that goes back hundreds of years before the founding of our country and was a concept in great britain, relied upon by many of our own justices and judges over the years. it was well known to the legal members of the founding generation. it required that a construing of

criminal statute that is capable of more than one reasonable interpretation, the interpretation that favors the defendant should be selected unless it conflicts with the content of the statute. it has been applied by chief justice marshall, chief justice oliver with wendell holmes, justice scalia and others. it would require that these words be construed narrowly to require criminal-like conduct, akin to treason and bribery rather than broadly to encompass abuse of power and obstruction of congress. in other words, if senators are in doubt about the meaning of high crimes and misdemeanors, the rule of lenity should incline them of accepting a narrower, rather than a broader interpretation. abuse of power and obstruction of congress as within the constitutional criteria. even if the rule of lenity is not technically applicable to impeachment, that's the

question, certainly the policies underlying that rule are worthy and deserving of consideration as guides to constitutional interpretation. now here, i'm make iing, i thina very important point. even if the senate were to conclude that a technical crime is not requires for impeachment, the critical question remains, a question i now want to address myself to. do abuse of power and obstruction of congress constitute impeachable offenses? the relevant history answers that question clearly in the negative. each of these charges suffers from the vice of being, quote, so vague a term that they will be equivalent of tenure at the pleasure of the senate to quote again the father of our constitution. abuse of power is an accusation. easily leveled by political opponents against controversial presidents. in our long history many presidents have been accused of abusing their power. i will now give you a list of presidents who, in our history,

have been accused of abusing their power, who would be subject to impeachment under the house managers view of the constitution. george washington, refusal to turn over documents related to the jay treaty. john adams, signing and enforcing the alienist addition laws, thomas jefferson, purchasing louisiana without congressional authorization. i'll go on. john quincy adams, martin van buren, john tyler, corrupt use of the veto power. james polk. here i quote abraham lincoln, who accused polk of abusing his power of office, usurping the role of congress and assuming the role of dictator. he didn't seek to impeach him, just sought to defeat him. abraham lincoln was accused of abusing his power for suspending the writ of has been habeus

corpus. franklin roosevelt, harry truman, jimmy carter, ronald reagan. quote, concerning iran-contra, professor lawrence tribe said the following. quote, therein lies what appears to be the most serious breach of duty by the president, a breach which may well entail an impeachable abuse of power. george h.w. bush, the following released by the clinton/gore campaign. americans have begun to learn the extent to which george bush and his administration have abused their governmental power for political purposes. that's how abuse of power should be used, as campaign rhetoric. it should be in statements issued by one political party against the other. that's the nature of the term, abuse of power is a political weapon. and it should be leveled against political opponents. let the public decide. that's true. barack obama, the house committee on the judiciary held an entire hearing entitled obama

administration's abuse of power. now by the standards applied to earlier presidents, nearly any controversial act by a chief executive could be denominated abuse of power. past presidents have been accused of using their foreign policy, even their war powers to enhance their electoral prospects. presidents often have mixed motives that include partisan, personal benefits along with the national interest. professor blackman ro provided the following interesting example. quote, during the height of the civil war president lincoln encouraged general william sherman to allow soldiers in the field to return to indiana to vote. what was lincoln's primary motivation, professor asks? he wanted to make sure that the government of indiana remained in the hands of republican loyalists, who would continue the war until victory. lincoln's request risked undercutting the military effort

by depleting the ranks. moreover, during this time, soldiers from the remaining states faced greater risks. lincoln had dueling motives. privately he sought to secure victory for his party. but the president, as a president and as a party leader and commander in chief, made a decision with life or death consequences. end quote. professor blackman drew the following relevant conclusion from this and other historic events. politicians routinely promote their understanding of the general welfare while in the back of their minds considering how these actions will affect their popularity. often the two concepts overlap. what's good for the country is good for the official's re-election. all politicians, he said, understand that dynamic. like all humans, presidents and other politicians perfect sway themselves that their actions, seen by their opponents, is self

serving, are primarily in the national interest. in order to conclude that such mixed mode of actions constituted abuse of power, opponents must psycho analyze the president and attribute to him a singular self-serving motive. such a subjective probing of motives cannot be the legal basis for a serious accusation of abuse of power that could result in the removal of an elected president. yet, this is precisely what the managers are claiming. here what they say. quote, whether the president's real reason, the ones actually in his mind, are at the time legitimate. what a standard. what was in the president's mind, actually in his mind? what was the real reason? would you want your actions to be probed for what was the real reason why you acted, even if a

president with -- and it clearly shows, in my mind, that the framers could not have intended this psycho analytic approach between motives to determine the distinction of what is impeachable and what is not. here i come to a relevant and contemporaneous issue. even if the president, any president, were to demand a quid pro quo as a condition to sending aid to a foreign country, obviously a highly disputed matter in this case, that in itself would not constitution an abuse of power. consider the following hypothetical case that is in our news today as the israeli prime minister comes to the united states for meetings. let's assume a democratic president tells israel that foreign aid authorized by congress will not be sent or an oval office meeting will not be scheduled unless the israelis

stop building settlements. quid pro quo. i might disapprove of such a quid pro quo demand on policy grounds but it would not conditions tut an abuse of power. quid pro quoel alone poort of the way foreign policy has been operated by presidents since the beginning of time. the claim that it can be deemed abuses of power without mixed or sole motives thark motives, that was only interested in helping himself, maleable phrase abuse of power as a constitutional missable reason for removal of a president. if any president were to have done what the times reported about the content of the bolton manuscript, that would not

constitute an impeachable offense. let me repeat, nothing in the bolton revelations even if true would rise to the level of an abuse of power or an impeachable offense. that is clear from the history. that is clear from the language of the constitution. you cannot turn conduct that is not impeach ybl into impeachable conduct simply by using words like quid pro quo and certainly benefit. it is inconceivable that the afraiders would have intended, promiscuous promiscuously it is precisely the vague, open-ended and subjective term that the framers feared and rejected. consider the term maladministration i want to get back to that term.

it was explicitly directed by the framers. you'll recall it was raised and madison objected to it. it was then withdrawn and is not part of the criteria. maladministration is not a ground for impeachment. if the house were to impeach on maladministration, it would be placing itself above the law. there's no doubt about that because the framers specifically objected to maladministration. it's comparable to the abuse of power. now it's been confined to include abuse, corruption, misrule, dishonesty, misuse of office and misbehavior. professor bowie in his article in today's "new york times" equates abuse of power with, quote, misconduct in office. misconduct in office. t thus supporting the view that when the framers rejected maladministration, they also rejected abuse of power as a criteria for impeachment.

blackstone denominated it as a high misdemeanor, punishable by the method of impeachable where such penalties are inflicted. he included imprisonment. you could be imprisoned for maladministration. despite this british history, madison insisted it be rejected as criteria for impeach because i quote again so vague a term will be equivalent to tenure during pleasure of the senate. and it was explicitly rejected and withdrawn by its sponsor. this important episode in our constitutional hids supports the conclusion that the framers did not accept whole hog the british approach to impeachment as some have mistakenly argued. specifical specifically, they rejected vague and open-ended criteria. because they did not want to turn our new republic into a parliamentary style democracy in which the chief executive can be

removed by office simply by a vote of no confidence. that's what they did not want. sempl nobody was above the law. but they created a lawpy congress wanted to impeach and they did not want to expand that law. the framers would never have included about did not include it as a refined power. framers didn't include obstruction of congress among the enumerated. vague, especially in a constitutional system, according to hamilton in federalist 78, the legislative body is not themselves the constitutional judge of their own powers and the construction they put on them is not inconclusive upon other departments. instead he said the courts were dined as an intermediate body

between the people as claired in the constitution and the legislator in order to keep the ladder. under our system of separation of powers and checks and balance ps, it cannot be an obstruction of justice and r other lawyers have made this nand more thoroughly. the legislature is not the constitutional judge of its own powers, including issuance of subpoenas. courts would resolve disputes between executive and legislative branches and it cannot be an obstruction of congress to invoke the constitutional power of considerates to do so. by that very nature, words like abuse of power and obstruction of congress are standardless. it's impossible to put standards into words like that. both are subjective matters of degree and amenable to varying

partisan interpretations. it's impossible to know in advance whether a given action would subjectsly be deemed to be on one side of the other of the line. indeed the same action with the same state of mind can be deemed abusive or obstructive when done by one person but not when done by another. that is the essence of what the rule of law is not. when you have a criteria that can be applied to one person in one way and another person in another way and they both fit within the terms abuse of power. a few examples will illustrate the dangers of standard of impeachment criteria. my friend and colleague professor fellman argued a tweet containing what he believed was false information could, quote, get the current president impeached if it is part of a broader course of conduct. a tweet. professor allen lictman has argued the president could be impeached based on his climate

change policy, with which he regards as a crime against humanity. i have to tell you, i disagree with our president's climate change policy, as i do with many of his other policies, but that's not a criteria for impeachment. that's a criteria for deciding who you're going to vote for. if you don't like a president's policies in climate change, vote for the other candidate. find a canndidate who has bette policies on climate change. if you don't like a president's tweets, find somebody who doesn't tweet. that would be easy. but don't allow your subjective judgments to determine what is and is not an impeachable offense. professor tribe mentioned under the criteria of abuse of power, president ronald reagan should have been impeached. would any american accept the legal system in which prosecutors could charge a citizen with abuse of conduct? could you imagine a crime abuse

of conduct? we have protections against a statute that, quote, forbids or requires the doing of an act so vague that men and women of common intelligence must necessarily guess at its meaning and differ as to its application. very difficult to imagine criteria that fit this description of what the supreme court have said violates the essentials of another constitutional rule of instruction is that when words can be interpreted in an unconstitutionally vague manner, you're entitled to use that rule of interpretation as well in deciding whether or not obstruction of congress or abuse of power can be defined as fitting within the area of high crimes and misdemeanors. for a senate to remove on vague

grounds such as abuse of power or obstruction of congress, would be a dangerous precedent. approval of impeachment as part of future political machinery. this is a realistic thet to all future presidents who serve with oppose i opposing majority legislatures. it demonstrates how selectively this term has and can be used in the context of impeachment. i'm sorry, house managers, you just picked the wrong criteria. you picked the most dangerous possible criteria to serve as a precedent for how we supervise and oversee future presidents. the idea of abuse of power and obstruction of congress is so

far from what the framers had in mind that they so clearly violate the constitution and would place congress above the law. these vague, open-ended articles of impeachment are not saved by the inclusion of these articles by somewhat more specific but still noncriminal type conduct. the specials plus themselves are vague and do not charge impeachable offenses. compromising national security, abusing the power of the presidency. violating his oath of office. in any event it's the actual articles that charge abuse of power and obstruction of justice, neither of which is in the constitution. it's the actual articles on which you must all vote. not on the more specific list of memes. an analogy might be helpful. if a defendant were accused of dishonesty, committing the crime

of dishonesty, it wouldn't matter that the indictment listed as well the means toward dishonesty a variety of far more specific potential offenses. dishonesty is simply not a crime. it's too broad a concept. it's not in the statutes. it's not a crime. the indictment would be dismissed because dishonesty is a sin and not a crime. even if the indictment included a long list of more specific acts of dishonesty. nor can impeachment be based on a bunching together of nonimpeachable sins, none of which standing alone meet the constitutional criteria. only if at least one constitutionally authorized offense is proved can the senate then consider other conduct in deciding the discretionary issue of whether removal is warranted. in other words, your jurisdiction is based on commission of an impeachable offense. once that jurisdictional element

is satisfied, you have broad discretion to determine whether removal is warranted and you consider a wide array of conduct criminal and noncriminal. but you have no jurisdiction to remove unless there's at least one impeachable offense within the meaning of high crimes and misdemeanors. in the three days of argument, the house managers tossed around words even vaguer and more open ended than abuse and obstruction to justify their case for removal. it's included trust, truth, honesty and finally right. these aspirational words of virtue are really important, but they demonstrate the failure of the managers to distinguish alleged political sins from constitutionally impeachable offenses. we all want our presidents and other public officials to live up to the highest standards set

by washington and lincoln. though both of them were accused of abuse of power by their political opponents. the framers could have demanded that all presidents must meet congressman schiff's standards of being honest, trustworthy, virtue use and right in order to complete their terms, but they didn't, because they understand human fallibility. if humans were angels if angels were to govern men neither internal or external controls on government would be necessary. the framers understood that if they set the criteria for impeachment too low, few presidents would serve their terms. instead, their tenure would be at the pleasure of the legislature as it was and still is in britain. so, they set the standards and the criteria high, requiring not sinful behavior, not dishonesty,

trust or dishonor but treason, bribery or other high crimes and misdemeanors. i end this presentation today with a nonpartisan plea for fair consideration of my arguments and those made by counsel and i willingly acknowledge that the academic consensus is that criminal conduct is not required for impeachment is that abuse of power and obstruction of congress are sufficient. i have read and carefully considered the academic work of my colleagues who disagreed with my view and few that accepted. i do my own research and do my own thinking and i have never bowed to the majority on intellectual or scholarly matters. what concerns me is during this impeachment proceeding there have been few attempts to respond to my arguments and other peoples arguments opposed to the impeachment of this

president. instead of answering my arguments and those of justice curtis and professor bowie and others on their merits and possible demerits they have simply been rejected. i urge the senators to ignore these epithets and consider the arguments and counter arguments on their merits especially those directed against the unconstitutional vagueness of abuse of power and obstruction of congress. i now offer a criteria for evaluating conflicting arguments. the criteria that i offer i have long called the shoe on the other foot test. it is a colloquial variation of the test proposed by the great legal and political thinker and my former colleague john rohls. i respectfully urge each of you to imagine that the person being impeached were of the opposite

party of the current president but in every other respect the facts were the same. i have applied this test to the constitutional arguments i am offering today. i would be making the same constitutional arguments in opposition to the impeachment on these two grounds regardless of whether i voted for or against the president and regardless of whether i agreed or disagreed with his or her policies. those of you who know me know that is the absolute truth. i am nonpartisan in my application of the constitution and the same be said of all of my colleagues who support this impeachment especially those who oppose the impeachment of president bill clinton. i first proposed the shoe test 20 years ago in evaluating the supreme court's decision asking the justices to consider how they would have voted had it been candidate bush rather than gore who say several hundred votes behind and seeking recount.

in other words, ofs i was on th other side of that issue. i asked them to apply the shoe on the other foot test. i now respectfully ask this distinguished chamber to consider that uristic test in evaluating the arguments you have heard in this chamber. how you evaluate on this case will serve as a precedent for how other senators of different parties, different backgrounds and different perspectives vote in future cases. allowing a duly elected president to be removed on the basis of the standardless, subjective ever changing criteria, abuse of power and obstruction of congress risks being construed in the words of senator grimes, a republican senator from iowa who voted against impeaching president andrew johnson into future impeachments as parts of political machinery. as i begin i will close.

i am here today because i love my country. i love it country that welcomed my grandparents and made them into great patriots and supporters of the freest and most wonderful country in the history of the world. i love our constitution, the greatest and most enduring document in the history of human kind. i respectfully urge you not to let your feelings about one man strong as they may be to establish a precedent that would undo the work of our founders, injure the constitutional future off our children and cause irreparable damage to the delicate balance of our system of separation of powers and checks and balances. as justice curtis said during the trial of andrew johnson, a greater principle is at stake than the fate of any particular president. the fate of future presidents, of different parties and

policies is also at stake as is the fate of our constitutional system. the passions and fears of the moment must not blind us to our past and to our future. hamilton predicted impeachment would agitate the passions of the whole community and enlist partialities, influence and interest on one or the other. the senate -- the senate was established as a wise and mature check on the passions of the moment with, quote, a deep responsibility to future times. i respectfully urge the distinguished members of this great body to think beyond the emotions of the day and to vote against impeaching on the unconstitutional articles now before you. to remove a duly elected president and to prevent the voters on deciding his fate on the basis of these articles would neither do justice to this president nor to our enduring

constitution. there is no conflict here. impeaching would deny both justice to an individual and justice to our constitution. i thank you for your close attention. it has been a great honor for me to address this distinguished matter on this body on this important matter. thank you so much for your attention. >> majority leader is recognized. i'm sorry, are you complete -- mr. cipollone? >> thank you, mr. chief justice, majority leader mcconnell, democratic leader schumer. senators, don't worry, this won't take very long. we're going to stop for the day and we'll continue with our presentations tomorrow. but i just had three observations that i wanted to briefly make for you. first of all, thank you very much professor dershowitz and

all the presenters from our side today. i was sitting here listening to professor dershowitz, and believe it or not my mind went back to law school. and i began thinking how would this impeachment look as a law school hypothetical question on an exam? how would we answer that question? and i found myself thinking maybe that's a good way to think about it. the question would go something like this. imagine you are a united states senator and you are sitting in an impeachment trial. the articles of impeachment before you had been passed on a purely partisan basis for the first time in history. in fact, there was bipartisan opposition to the articles of impeachment. they had been trying to impeach the president from the moment of his inauguration for no reason. just because he won. the articles before you do not

allege a crime or any -- or even any violation of the civil law. one article alleges obstruction of congress simply for exercising long-standing kauntsitutikaunt constitutional rights that every president has exercised. the president was given no rights in the house of representatives. the judiciary committee conducted only two days of hearings. you are sitting through your sixth day of trial. the house is demanding witnesses from you that they refused to seek themselves. when confronted with expedited court proceedings with subpoenas they had issue, they actually withdrew they subpoenas. they are now criticizing you in strong accusatory language if

you don't capitulate to their unreasonable demands and sit in your seats for months. an election is only months away, and for the first time in history they are asking you to remove a president from the ballot. they are skg you asking you to something that violates all principles in the past and democracy and take the choice away from the american people. it would tear apart the country for generations and change our constitutional system forever. question -- what should you do? your first thought might be that's not a realistic hypothetical. that could never happen in america. but then you would be happy because you'd have an easy answer and you can be done with your law school exam and it would be you immediately reject the articles of impeachment.

bonus question -- should your answer depend on your political party? answer -- no. my second observation is that i actually think it's very instructive to watch the old videos from the last time this happened, when many of you were making so eloquently -- more eloquently than we are the points we are making about the law and precedent. but that's not playing a game of gotcha. that's paying you a compliment. you were right about those principles. you were right about those principles. and if you won't listen to me, i would urge you to listen to your younger selves. you were right. and the third observation in sitting here today judge starr talked about we are in the age of