their arguments but have indicated they may present their case in just a few hours today. after that, senators can ask questions, debate on witnesses as possible and then the trial will end with a final vote on whether to convict. >> were watching c-span2, your unfiltered view of government. c-span2 was created by america's cable television company and today were brought to you today by these television companies who provide c-span2 two viewers as a public service. >> host: joining us as alan dershowitz, author of the book, the caseas against impeaching trump. professor emeritus at harvard law school and a podcast with the listen to his thoughts. thank you for joining us. >> guest: thank you. >> host: what basis does the president's defense team today considering what they've heard over the last two days? >> guest: well, first i think

they will answer the very effective arguments made by my former student jamie raskin andl made it very clever argument and was buried but he said look, the senate has decided to have jurisdiction so you the senators have no right to consider that your vote and you most vote as if the senate has jurisdiction. that is just wrong and clever but wrong. the senators have a right to vote to acquit on either ground either on the ground that they don't agree the senate has jurisdiction or even if it has jurisdiction in the speech was protectedas and they were protected by the first amendment and i mentioned the first one because in the famous bill cannot case the only other case where former cabinet member was put on trial 23 senators who voted that the senate did not have jurisdiction voted for thacquittal on the ground that e senate didn't have jurisdiction and that is they repeated their original vote and most of them

thought that president belknap was guilty as could be after all the impeachment in the house was unanimous but they repeated the vote that there was no jurisdiction soea if i am the president's lawyers i emphasize that there was no jurisdiction. i would read again from the constitution, the president, not a president or former president but the president, vice president and all civil officers shall be removed from office by impeachment. that is seems clear that the senate has jurisdiction only over the president. trump is not the president. chief justice assured that when he refused to t preside over the trial and so the senate has no jurisdiction. i would focus on that argument and then moved to the first amendment argument. the one argument it would stay away from is the argument that senator cassidy just raised on your show namely that the election was stolen or not stolen. they lose that. the election was not stolen. trump was wrong.

i don't defend trump's speech at all and i think it was an appalling speech and i defend his right to make it an appalling speech under the first amendment but they should not fall into the trap of trying to defend trump on the merits of his speech. only on the first amendment. i think they will get their one third plus one that precludes a conviction by the senate and precludes as being disqualified. >> when it comes to the house impeachment managers over the last two days did they make their case for incitement? >> guest: no, i think they made a case, as many of them said, he invitedde people to go to the white house. there is a big difference between infighting and inciting. incitement a shouting fire in a crowded theater. everybody leaves and that's not a message to the mind but a message to the legs, get out of there and don't think about it. president spoke to thousands of people on some of the month and some of them went home. of those who went, some of them broken and some did not breed those who broke and, some of

them committed violence and some didn't. that is not incitement but that is an invitation and when the president said peacefully and patriotically makes it clear that what he was doing was asking them to protest with their voices. what happened in the capital was inexcusable and there is no justification for that and the people whorr were arrested can't defend themselves on the ground that the devil made me do it or the twinkies made me do it but the president made me do it. the other point that the democrats keep making is they keep referring to trump as our commander-in-chief. let's be very clear. as a matter of constitutional law the president is not our commander in chief. he's only the commander-in-chief of the armed forces. he cannot tell you to do anything for it for president says to you wear a mask you can say no, i don't want to wear a mask. but that would be foolish and you should wear a mask of the president has no authority to command anybody but the armed forces. he is not our commander and chief. in a totalitarian society

presidents are the people's commanders in chief and the united states of america we have no commander and chief. we are or own conscience. the ledge later confessed laws of the president can't. he's only the commander-in-chief of the army and people followed what he said they did it of their own free will and that is because they were ordered to do so. >> host: (202)748-8001 for republicans, (202)748-8000 for democrats, (202)748-8002 for independence. he's saying if a president can be convicted after leaving office what stops them from acting with impunity during the last days or just before resigning? >> guest: the constitution. it says once a president is out of office he can be prosecuted. let's take the best president then either side mess mention. it's ehrenberg, aaron burr leaves office as vice president and then start an insurrection. nobody, none of the framing generation thought about impeaching him but he was out of

office. instead they prosecuted him for treason and they had a great trial and presided over by john marshall, chief justice. ultimately he was acquitted and the same thing is true here, no january exception in the the president could be prosecuted for his speech if he violated the first amendment and the prosecuted for his call to georgia and all of that is possible for there is no january exception but there is also no trump exception to the first amendment. what trump said was covered by the first amendment by the brandenburg principal and we can't twist and turn the first amendment to create a trump exception. >> host: let's hear from jim. silver spring, maryland, democrats line, jim you're on with our guest alan dershowitz, go ahead. >> caller: thank you. good morning gentlemen. mr. t dershowitz what a privilee wto speak with you. i just would like to introduce myself, my fifth great grandfather was the last signer of the decoration of independence. he wasco chief justice of the

supreme court of pennsylvania of 1777-1779 and the first jefferson governor of the u.s. in 1800-1809. i have two questions. one relates to the house of representatives and did the house air or possibly in not raising the impeachment on the point of dereliction of duty and number two, can the senate simply move to a bill of disqualification and dispense with the impeachment trial and just go to disqualification and i you very much and i will take your answers. >> host: great question. >> guest: no, they have to convict before they can disqualify and therefore they have to vote by two thirds to convict. the house did not make the mistake. dereliction of duty is not a constitutional basis. some of the framers suggested it and use the term maladministration and medicine got up and said no, that would

haveou president serve at the pleasure of the congress and that in the english system where the parliament can simply have a vote of no-confidence and so they introduced for qualifications for being impeached. treason, this is not charged here, bribery, not charged or other high crimes and misdemeanors and by other the framers meant crimes and misdemeanors like treason and bribery so dereliction of duty, maladministration, abuse of power, obstruction of congress and none of those are grounds for impeachment and removal. i argue that successfully last time around about a year and two weeks ago and i think i've clproved conclusively that the framersio had in mind criminal type behavior, akin to treason dmand bribery. maladministration or any of these other criteria that could result inyb anybody else being fired then applied to a duly elected president. he has to be impeached and

satisfy one ofsf the fou criteria. >> host: from wilhelm, missouri, republican line. w >> caller: miyes, this is [inaudible] donald trump what he said on january 6 and i was watching all of this on cnn, donald john trump told his people to go march down there to the capital and that was wrong to do. he should never do that. people should not damage or capital and that is wrong and also republicans need to understand donald john trump is a businessman and a businessman does not belong in that white house for he owns property and he owns hotels and casino and golf courses and that -- that white house does not belong to donald john trump. >> host: we will stop you there but let's go to the first point. >> guest: you make a good argument for not voting for

donald trump and i did not vote for donald trump and i'm not a republican. i'm a liberal democrat. i'm not a trump supporter and i did not like his speech and you're right he should not have madeav it but he was perfectly entitled to say march on the capital and fight back with your voices. many, many people have said that and it's a very common argument in washington dc. remember, i'm a lawyer who spent virtually every important first amendment case in the last half of the 20th century but of the pentagon case and the wikileaks case in the chicago seven case and all of these cases in the chicago seven yelled loud on the streets in the bruce franklin case, take over the computation center. all of these cases aclu supported the rights of free speech and so the arguments you make are very strong arguments for why trump should not be president and that's why we have an election but that is not bobby have impeachment.

we have impeachments and removals only if the full mecriteria under the constitutin are met and hamilton in federalist 65 said the greatest danger to our constitution would be for impeachments to turn on who has the greatest number of votes, rather than on whether the constitutional criteria of guilt have been met so if i were writing a book about this impeachment i would call it hamilton's nightmare because i think since the time the bill clinton was improperly impeached and i was on his side of that consulting with his legal team, ever since the time bill clinton was impeached the impeachment has been weapon eyes for purposes removing an absolutelys the wrong direction and will continue to become a normal part of the political process and remember a controversial brackeo is elected and we will seek movements towards impeachment and iil don't think that is what the framers had in mind. >> host: mr. dershowitz, regarding this trial and case give your thoughts on the due process and establish that if it

satisfied in the lead up and the lack of witnesses that we are expecting not to appear during this process? >> guest: this was the quickest impeachment in history. all prior impeachments had hearings and i testified as a witness against the impeachment of bill clinton. this was a snap impeachment and it was just done quickly. probably, because it was toward the end of his term but he was denied due process. as far as witnesses are dconcerned basically what the defense was making as a motion to dismiss they're saying there's no jurisdiction in the speech we all know was in his speech and other speeches that were made before that were all covered by the first amendment. in fact, the democrats played into trump's hands when they brought in the context and show he was making speeches like this since the day of the election and that proves that this was ppart of a political protest ad political protests are permissible.

jamie raskin posted the 2016 election. i protested the 2000 election and i was one of al gore's lawyers and i wrote a book about it called supreme injustice. i didn't think the 2000 election was fair and i'm entitled to make that argument and jamie raskin was entitled to make his argument about 2016 and donald trump could make his arguments, wrong as i believe it was, about bo2020. >> host: independent line from hampton. >> caller: good morning. i have a couple of questions actually for you. as far as this riot supposedly, it is not a riot but it's five years of people that have been dumped on and not been able to hear their voices. their votes were not counted. i know you do not believe that but i believe that. i'm an 80 -year-old independent who has voted both ways and i feel the anger has built up so

bad, it's not going to end. i do believe in the 22 and 24 elections that the republicans are going to gain back a lot of seats because of it. you won't let people hear the evidence and i don't know and i have not heard journalists say anything about it but newsmax has had mike lindell on with the document terry called absolute proof. have you watched it? it is absolute proof. if they had let the courts listen to these cases we would never have had this disaster. >> host: caller, that is one question for mr. dershowitz what is the second? >> caller: basically i would like for journals to have mike lindell on and let him be able to take questions about this. have you seen absolute proof? it's on youtube and on facebook

and been on newsmax over and over again. you have never mentioned it. >> host: okay. let's hear from alan dershowitz. >> guest: everyone is entitled to present their views. i am unpersuaded that the election was stolen or unfair but even if it had been that doesn't justify what happened at the capitol. it was a riot and not in insurrection and it was not terrorism. it was not all of the other things that many are saying it is. it was a riot, violent riot, criminal riot and people participated in it and they should be prosecuted even if they had good reason for believing that the election was stolene which i don't think thy did. that doesn't justify violence and doesn'tsp justify breaking into speaker pelosi's office or doesn't justify trying to stab a policeman with the american flag. that's never justified under any circumstances. the republicans will win the midterm in the next election, god bless them for it i will not vote forhe them but that's the

prerogative of every voter. we should have elections, not impeachments. impeachments are reserved only for situations where presidents have committed one of the four specified crimes and where he is still in office. there are two core violations ndthat the senate is engaged in print number one, putting the private citizen on trial which is a bill of attainder and bill of attainder or probation says you cannot put private citizens on trial in the senate or the house and not only that but you're putting them on trial for first amendment protected speech and the constitution says congress, congress shall make no law abridging theti freedom of speech but no law has interpreted to be mean no action. you cannot impeach a president or former president for making a speech that is protected by the first amendment. that is my view. i know one of 44 scholars who disagree with me but they are wrong and i'm right and i'm happy to debate any one of them and i've offered to debate them in a single one of the 144 scholars has been prepared to

debate me on why they should change from what they said in their letter. i've known what it would be legally frivolous. you're not allowed to make that. >> host: mr. dershowitz, i hate to interrupt you but the camera is off on your computer so if you could go ahead and attend to that so we could see you as well as hear you and we will appreciate but as you do that we will keep taking calls and we will hear from peter and democrat line and peter, go ahead. >> caller: first of all, id want to commend c-span and the coverage and the coverage you brought to this event is exceptional and i hope you win an emmy and professor dershowitz, i feel honored to speak with you about this trial that is unfolding in congress and i think one of the things while the managers have done a very good job of putting their

case forward to video into the way it'ss being presented and handled i believe the managers have done an exceptional job and my one question is president trump has a relationship with the proud boys or they were cofounded by canadians and the government of canada has designated the proud boys and the terrorist organizations akin to ices, akin to al qaeda, akin to any number of terrorist organizations and we do not know enough about them and i am very surprised and somewhat disappointed the managers did not bear down on the whole issue of the role of the proud boy and whativ are their motivations and why didd canada and why did canada designate them as a

terrorist organization. >> host: caller, we will leave you there and let mr. dershowitz bresponded. >> guest: i think you're right about the proudud boys. they are an awful, awful organization and good reason for designating them if they indeed engage in terrorist activities. and l there are other organizations as well but we should look into anti- fa which has tried to get me from speaking and centrist liberals whose for israel and anti- fa tries to prevent them from speaking. there is too much violence in this country and i think we ought to take steps to curtail violence and looking into relationships with any political figure and any radical violent group is a useful thing to do but we should not engage in mccarthyism or generalize and we should looke at the evidence and i've seen no evidence to connect former president trump to the proud boys when he said stand down or stand by or whatever he

said. he also said he did not even know who that group was. it's worth looking into but i don't think there's a close close connection between proud boys and president trump. >> host: bobby is asking why you're not currently defending trump in the trial. >> guest: i was asked in my decision was i did not want to be part of a legal team that might be forced to defend president trump's speech on its merits. i don't believe the election was stolen and i believe it was fair but i do have an open mind. if i hear evidence i would be willing to change my mind and i advocated creating a voter integrity panel with a former supreme court justice et cetera to look into every allegation and everybody else's and come to a conclusion because i don't think the media can be trusted. the very divided media could give us a fair assessment of the facts but i don't believe that the election was stolen. i did not want to be in a position where i was forced to

make that argument. in fact, the democrats are trying to spring a trap on the term people by focusing so much on president trump's alleged lies about the election and i hope they don't fall into that trap because if they do try to argue that the election was stolen they will lose mcconnell and other senators who, at the memoment would go to a quit butf it becomes a referendum on the election they very well might vote the other way because they, like me, don't believe it was stolen one republican line, ohio, jenny. >> caller: hello. i wanted to say why is it that this country is getting to be where they want to blame other people for what somebody said. you know what, i am sure trump freaked out when that happened and i don't know why it's not okay for me to be a republican. i get attacked because i'm a republican. he is protected under the first amendment. >> host: you can be whatever you

want to be to your protected under the first amendment to remember, the white house managers say the president is a protected under the first amendment they forget the first amendment is operates in two ways. it gives the president the right to speak but it also, first moment gives us the right to listen to him. even if he somehow as president, even if there is a trump exception to the first amendment where there is not, certainly there is no exception for us. we are entitled to hear what he has to say. c-span has a first amendment right to broadcast in one of the reasons they have that first amendment right is because i had a first moment right to listen to c-span and also have a first amendment right to listen to trump and have a right to ignore him and a right to disagree with them but i have a right to listen to him. the house managers say that president trump is no first amendment right to speak they

are denying all of his listeners their firstst amendment right to listen to what he has to say. that is clearly in violation of the spirit of the first amendment be one fewer about the first moment saying that the first moment was never extended to includete speech that promots violence, murder or treason. >> guest: no, it is paired the bible promotes violence, koran promotes violence, marxist promotes violence in the communist manifesto but it does permit speech the promotes violence. it just doesn't permit speech that incites violence. there is a difference between advocacy, you are entitled to say that you advocate the violence overthrow of the government. you're not entitled to stand in front of a crowd and say break into the white house, break into the capital, do it now, take over pelosi's office. that is the difference between incitement and advocacy. >> host: you use the word promote in the first amendment does allowdm you to promote

violence. you can get up there and say i believe violence is the right course of events and you should do it and that is what brandenberg did. clarence brandenberg got up and said i want you to take revenge against the senators and i want you to send the jews back to israel and the blacks back to africa and wanting to march on the capital, not now but on jult unanimously said even if that prpromotes violence and does not incite violence and therefore it is protected and i believe president trump had that same right at his speech comfortably fit within the protections of brandenberg, not withstanding 144 scholars saying that it would be unethical even to raise that argument in the form of mccarthyism threatening lawyers, saying you cannot raise that argument would be legally frivolous to even raise a first amendment argument and they say that quote, no reasonable scholar or jurist would offer

that argument. i'm a reasonable scholar andta jurisprudence i taught at harvard for 50 years. i am making that argument. i am making the argument that the president's speech was protected by the first amendment to how dare you say that no reasonable scholar or jurist would make that argument to how dare you say would be unethical for a lawyer to raise that argument. that is wrong and an attempt to intimidate scholar an attempt to intimidate lawyers and it is not the american way to try to silence people who disagree with you. >> host: virginia, sam, democrat line. >> caller: yes, my question to mr. alan dershowitz is how in the world we can get a fair trial while the jury is watching with the defense and the jury is coming out clearly supporting

the defense so what kind of trial can we get? >> guest: lets understand the whole context for the trial is presided over by a senator who is already expressed his views, alice and wonderland, verdict first, trial afterward. they are victims of what happened in the capital and so this is not a fair trial. yes, republicans have made a bare mind and if they vote the wrong way they get sanctioned. democrats have made up their mind and that is one of the reasons i don't love arguing these kinds of o issues in front of the senate. i like to argue them in front of an open minded judges and jurors. here you have most of the senators have probably made up their mind. some mayay have open minds. some may be influenced paired i ntthink today's arguments by the defense team might influence a handful of votes if they make serious mistakes and there may be enough republicans to vote to convict but if they don't and

that they simply focus on the jurisdictional issues of the constitutional issues in the first amendment issues i suspect there will be enough votes to present -- prevent the two thirds supermajority that is necessary. >> host: let's hear from one more viewer, carol in new york. republican line. >> caller: hello. it's setauket. i had the privilege and that's okay i had the privilege of meeting mr. dershowitz a number of years back and i got his book and things like that and i would love to hear from him. i ama not only a republican buti also vote democrat. i vote for the person or at least i try to. unfortunately, everybody is getting what trump actually said. they are leaving out the last part of what he said. it was to do it peacefully. they keep leaving that off. i happen to be a trump supporter and i also believe that the

election was stolen. i think they have been abusing this poor man since before he even ran for president. i think it is horrible what they been doing. i think it's horrible what the media has been doing. mr. dershowitz, i would love it if you would get a group together to actually look into the entire election. >> guest: i would like to try to do that. i want to comment briefly on the media. but line which is very respectable show and it's on pbs they had a show which will be nominated for all kinds of awards in which they presented the case against president trump and they presented two speeches. one the speech he made in charlottesville and they deliberately left out the part where he said, fine people but not including white supremacists and they should be condemned. then they have the speech in the capital and they left out- deliberately the part where he said i want you to come with me and marched to the capital

peacefully and patriotically so your voices can be heard. it is one thing to disagree with those statements but quite another thing for the frontline and cnn to deliberately omit those statements and i think during the democrats presentation they often omitted those statements and the america public is entitled to see everything, all the statements and that is why c-span do such a great job because it doesn't pick and choose and some of you may know i am suing cnn because during my last presentation for the constitution they doctored and edited the tape and took out my words unlawful and illegal and made it sound like i thought president could do anything even unlawful or illegal print they made me say exactly the opposite of what i said. the media is often irresponsible in the way it edits presentations and so it is very important to hear everything in context and i am confident that when the senators here everything in context then today they will hear the defense argument and they will vote

according to the constitution and took an oath to vote or the constitution but constitution requires them to apply the criteria for impeachment which have not been met here in the criteria for jurisdiction namely a sitting president print madison said that in federalist 37 and the text of the constitution supports that and i think therefore the constitution mandates president trump's acquittal, notwithstanding that his speech was awful and should be condemnedta and has been widy condemned and i joined in that combination. >> host: alan dershowitz, author of the case of impeaching trump also the podcast host of the show that you can find wherever you got here podcast or thank you for your time. >> guest: thank you. >> you are watching c-span2, your unfiltered view of government. c-span2 was created by america's cable television companies and today we are brought to you by these television companies who provide c-span2 two viewers as a public service.