everyone. >> is the white house reaction to the resignation of the head of tokyo activity, said the sexist comments that women talk too much in meetings. speaker psaki: we do not approve of those comments. let me get a more specific reaction from our team. angst, everyone. [captions copyright national cable satellite corp. 2021]

washington journal continues. host: joining us is alan dershowitz, author of the book "the case against impeaching trump," professor emeritus from harvard. thank you for joining us. guest: i think they will answer their effective arguments made by my law student jamie raskin. jamie raskin made a clever argument. he said the senate has already decided to have jurisdiction. you senators have no right to consider that your vote. you must vote as if the senate had jurisdiction. that is just wrong. it is clever but wrong. the senators have a right to vote to acquit on either ground. either on the ground they don't agree the senate has jurisdiction or on the ground

even if it has jurisdiction, the speech was protected and all the speeches were protected by the first amendment. in the famous belknap case where a cavity memory was put on trial, 23 senators who voted the senate did not have jurisdiction voted for acquittal on the ground the senate did not have jurisdiction. they repeated their original vote. most of them thought belknap was guilty as could be as the impeachment from the house was unanimous. they repeated the vote there was no jurisdiction. if i the president's lawyers i would emphasize the fact there is no jurisdiction. i read from the constitution. the president and all civil officers shall be removed by impeachment. that seems very clear the senate has jurisdiction only over the president.

trump is not the president. the chief justice asserted that when he refused to preside over the trial. the senate has no jurisdiction. i would focus on that argument and move to the first amendment argument. the one argument i would stay away from is the augment senator cassidy just raised on your show, namely the election was stolen or not stolen. they would lose that. the election was not stolen. trump was wrong. i don't defend trump's speech at all. i think it was an appalling speech but i defend his right to make an appalling speech under the first amendment. they should not fall into the trap of trying to defend trump on the merits of his speech, only on the first minute. i think it will get there one third plus one that precludes a conviction by the senate and precludes his being disqualified. host: over the last two days, did they make their case for incitement? guest: no, i think they made a case for as many of them said

that the president invited the people to go to the white house. there's a big difference between inviting and inciting. incitement is shouting fire in a crowded theater. everybody leaves. that is not a message to the mind, it's a message to the legs. the president spoke to thousands of people. some went and someone home. of those who went, some broke in and some didn't. some committed violence, some didn't. that is not incitement. that's an invitation. when the president said peacefully and patriotically, it makes it clear what he was doing was asking them to protest with their voices. what happened in the capital was inexcusable. there is no justification for that. the people arrested cannot defend themselves on the ground that he made me do it or the president maybe do it. the other points the democrats keep making is the keep referring to trump as our commander-in-chief.

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. if a president says wear our mask, you can say i don't want to wear a mask. you should wear a mask, but the president has no authority to command anybody but the armed forces. he is not our commander-in-chief. in totalitarian societies presidents are the people's commander in chief. we are own conscience. the legislature can pass laws, the president can't. he's only the commander-in-chief of the army. if people followed what he said, they did it of their own free will. host: for republicans --(202) 748-8001 for republicans. (202) 748-8000 free democrats. -- four democrats. -- for democrats.

what stops them asking with impunity just before resigning? guest: the constitution. let's take the best either side agent. the best precident leaves is aaron burke. he left office and started an insurrection. they prosecuted him for treason. they had a great trial presided over by john marshall. he was acquitted. there is no january exception. the president can be prosecuted for his speech if he violated the first amendment. the president can be violated for his call to georgia. all that is possible. there is no january exception, but also know trump exception to the first amendment. what trump said was covered by the first amendment. we cannot twist and turn the first amendment to create a trump exception. host: let's hear from jim from

silver spring, maryland, democrats line. you are on with alan dershowitz. caller: thank you very much. good morning, jenna meant. what a privilege to speak with you. i would like to introduce myself. my great-grandfather was the last signer of the declaration of independence. he was chief justice of the supreme court of pennsylvania. he was the first jeffersonian governor of the u.s. i have two questions. one relates to the house of representatives. did the house err possibly in not raising the impeachment on the point of dereliction of duty? number two, can the senate simply move to a billet disqualification -- bill of

disqualification and just go to disqualification? guest: those are great questions. to the second, no. they have to convict before they can disqualified. they have to vote by two thirds to convict. the house has not made a mistake. dereliction of duty is not a constant to should know -- constitutional basis. madison said no, that would have the president serve at the pleasure of congress. that is the english system where the parliament can simply have a vote of no-confidence. the introduced four qualifications for being impeached. treason, bribery, or other high crimes and misdemeanors. by other, they admit crimes and misdemeanors -- the framers meant crimes and misdemeanors. abuse of power, obstruction of congress. none of those are grounds for impeachment and removal.

i argued that successfully last, wrapped about a year and two weeks ago. i proved conclusively the framers had in mind criminal type behavior akin to treason and bribery. maladministration or any of these other criteria that could result in anybody else being fired does not apply to a duly elected president. he has to be impeached and satisfy his criteria. host: wilhelm in missouri on the republican line. caller: yes. donald john trump, what he said on january 6 -- i was watching all of this on cnn. donald john trump told his people to go march down to the capitol. he should never do that. people should not be marching on the capitol.

republicans need to understand donald john trump is a businessman. a businessman does not belong in the white house. he owns property. he owns hotels, casinos, golf courses. the white house does not belong to donald john trump. guest: you make a good argument for not voting for donald trump. i did not vote for donald trump. i am not a republican. i am a liberal democrat. i am not a trump supporter. i did not like his speech. you are right. he should not have made it but he was entitled to say march on the capitol. fight back with your voices. many people have said that. it's a very common argument. i have defended -- i'm a lawyer that defended virtually every important first amendment case in the last half of the 20th century. the pentagon papers tears, the

wikileaks case, the chicago seven case. they yelled blood on the streets in the bruce franklin case. all these cases, the aclu supported the right of free speech. the arguments you make are very strong arguments for why trump should not be president. that is why we have elections but that's not why we have impeachments. we have impeachment and removal only if the four criteria are met. hamilton and the federalist 65 said the greatest danger to our constitution would be from impeachment to turn on who has the greatest number of votes rather than on whether the constitutional criteria for guilt has been met. if i've are writing a book about this impeachment, i would call it "hamilton's nightmare." since the time bill clinton was improperly impeached, and i consulted with his legal team, ever since bill clinton was

impeached the impeachment has been weaponized for partisan purposes. removing an absolutely -- we are moving in absolutely the wrong direction. it will become a normal part of the political process. whenever a controversial president is elected, there will be movements towards impeachment. that is not with the framers had in mind. host: regarding this trial in case, give your thoughts on the due process. was that satisfied in the lead up? and the lack of witnesses we are expecting not to appear in the process. guest: this was the quickest impeachment in history. all prior impeachments had hearings. i testified as a witness against the impeachment of bill clinton. this one was a snap impeachment. it was just done quickly, probably because it was towards the end of his term. he was denied due process. as far as witnesses, the defense is making a motion to dismiss.

the speech was -- the speeches before that were all covered by the first amendment. the democrats played into trump's hands when they broadened the context to show he was making speeches like this since the day of the election. that proves this was part of a political protest. political protests are permissible. jamie raskin protested the 2016 election. i protested the 2000 election. i wrote a book about it called "supreme injustice." i did not think the 2000 election was fair and i'm entitled to make that argument. jamie raskin was entitled to make his argument about 2016. donald trump was entitled to make his argument about 2020. host: donna, hampton, virginia. caller: i have a couple of questions for you. as far as this riot supposedly,

it is not a riot. it is five years of people that have been dumped on and not be able to hear their voices. their votes were not counted. i know you don't believe that but i believe that. i am an 80-year-old independent who has voted both ways. i feel the anger has built up so bad it is 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. i have not heard journalists say anything about it. newsmax has had mike lindell on with the document terry called -- documentary called "absolute proof." have you watched it? it is absolute proof.

if they let the courts listen to these cases, we would have never had this disaster. host: that is the one question for mr. dershowitz. what is the second? caller: i would like for journal to have mike lindell on and have them take questions about this. have you seen " absolute proof"? it's on youtube, facebook, newsmax over again and you have never mentioned it. guest: everybody is entitled to present their views on the election. i am unpersuaded the election was stolen or unfair. even if it had been, that doesn't justify what happened at the capitol. it was a riot. it was not terrorism. it was the other things any are saying it is. it was a riot, a violent ri ot.

the people who participated should be prosecuted even if they had good reason for believing the election was stolen. that does not justify violence. does not justify breaking into speaker pelosi's office or trying to stab a policeman with an american flag. the republicans are going to win, god bless them. i'm not voting for them but that's the prerogative of every voter. impeachments are reserved only for situations where presidents have committed one of four specified crimes and still in office. there are two core violations. putting a private citizen on trial, a bill of attainder says you cannot put private citizens on trial in the senate or the house. not only that, you are putting him on trial for first amendment-protected speech. the constitution says congress shall make no law abridging the

freedom of speech. no law has been interpreted to mean no action. you cannot impeach a president or former president for making a speech protected by the first amendment. i know 144 scholars disagree with me. they are wrong, i'm right. i'm happy to debate any one of them. i offered to debate them. not a single one has been prepared to debate me. -- legally frivolous. that's outrageous. host: i hate to interrupt but your camera is off on your computer. if you could attend to that so we can see you and hear you. we appreciate it. we will take taking calls. peter in massachusetts, democrats align with alan dershowitz. go ahead.

caller: first of all i went to commend c-span. the coverage you have brought to this event is exceptional. i hope you win an emmy. professor dershowitz, i feel honored to speak with you about this trial that is unfolding in congress. i think one of the things -- while the managers have done a good job of putting their case forward, the video, the weight is being presented and handled as opposed to the first impeachment, i believe that managers have done an exceptional job. but my one question is, you know, president trump has a relationship with the proud boys. the proud boys were cofounded by canadian. -- a canadian. canada has said they are a

terrorist organization that can to al qaeda or any number of terrorist organizations. we do not know enough about them. i am very surprised and disappointed that the managers did not bear down on the issue of the role of the proud boys, who is behind the scenes in that group. what other motivations? why did canada designate them as a terrorist organization? host: we will leave you there and let mr. dershowitz respond. guest: i think you are right about the proud boys. i think the are an awful organization and there is a good reason designating them terrorist. there are other organizations. we need to look into antifa which is try to prevent me from speaking and liberals who support israel. antifa tries to prevent them from speaking. there is too much violence in

this country. we ought to take steps to curtail violence. looking into relationships between any political figure and any violent radical group is a useful thing to do. we should not engage in mccarthyism, not generalize. we should look at the evidence. i see no evidence to connect president trump to the proud boys. when he said stand out and stand whatever he said, he said he did not know who the group was. it is worth looking into but i don't think there is a close connection between proud boys and president trump. host: bobby off of twitter asking why you are not currently defending trump in this trial. caller: i was -- guest: i was asked. i didn't want to be part of a legal team that might have to defend president trump's speech on its merits. i believe the election was fair. if i hear evidence, i'm willing to change my mind.

i advocated creating a voter integrity panel from former supreme court justices, college professors. come to a conclusion. i don't think the media can be trusted. the very divided media can't give us a fair assessment of the facts. i don't believe the election was stolen. i did not want to be in a position to make that argument. democrats are trying to spring a trap on the trump people by focusing so much on president trump's alleged lies about the election. i hope they don't fall into that trap. if they try to argue the election was stolen, they will lose mcconnell and other senators who at the moment would vote to acquit. if it becomes a referendum on the election, they may will vote the other way because they don't believe the election was stolen. host: ohio, jenny. caller: hi.

i wanted to say why is this country is getting to be where they want to blame other people for what somebody says? i am sure trump freaked out when all that happened. i don't know why it's not ok for me to be republican. i get attacked because i'm a republican. he is protected under the first amendment. guest: you are protected under the first amendment. one the white house managers say the president is a protected, they forget the first amendment operates two ways. it gives the president the right to speak. but it also gives us the right to listen to him. even if he somehow -- if there is a trump exception to the first amendment, 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. one of the reasons they have that first amendment right is because i had a first of them it right to listen to c-span. i have a right to listen to trump. i have a right to ignore him, our right to disagree with him, but i have a right to listen to him. when the house managers say president trump no first amendment rights to speak, they are denying all us listeners there first amendment right to listen to what he has to say. that is clearly in violation of the spirit of the first amendment. host: the first amendment was never extended to include speech that promotes violence, murder or treason. guest: it is. the bible promotes violence. the toronto promotes violence -- the quran promotes violence.

it does not promote speech that incites violence. there is a difference between advocacy. you are entitled to say you educate the violent overthrow of the government. you are not entitled the standard front of a crowd and say break into the capitol, takeover pelosi's office. that's the difference. use the word promote. the first amendment does allow you to promote violence. you can get up and say, i believe violence is the right course of events. you should do it. that is what brandenburg did. he got up and said i when to take revenge against the senators. i want you to send the jews back to israel, the black spect africa, march on the capitol on july 4. the supreme court said if that promotes violence, it not incite violence. therefore it is protected. i believe president trump has that same right in his speech comfortably fits within the

protections of brandenburg, notwithstanding the 144 scholars saying it would be unethical even to race that argument -- raise that argument. that is mccarthyism, threatening lawyers. it would be legally frivolous to even raise the first amendment argument. they say no reasonable scholar or jurist would offer that argument. i'm a reasonable scholar and jurist. i taught at harvard for 50 years. i am making that argument that the president's speech was protected. how dare you say no reasonable scholar or jurist would make that argument? how dare you say it would be unethical for a lawyer to raise that argument? it's an attempt to intimidate scholars. it's an attempt to intimidate lawyers. it is not the american way to try to silence people who disagree with you. host: sam on the democrats line.

sam in reston, virginia, go ahead. caller: my question to mr. alan dershowitz is how in the world we can get a fair trial while the jury is working with the defense and the jury is coming out clearly supporting the defense? what kind of trial can be get? guest: let's understand the whole context. the trial is presided over by senators who have expressed their views. verdict first, trial after. the jurors are not only witnesses, they are victims of what happened in the capital. this is not a fair trial. yes, republicans made up their mind. if they go the wrong way, they get sanctioned. democrats have made up their minds. that is one of the reasons i don't love arguing these kinds

of issues in front of the senate. i like to argue in front of open-minded judges and jurors. you have most of the senators that have probably made up their minds. some may have open minds. i think today's arguments by the defense team might influence a handful of votes. if they make serious mistakes, there may be enough republicans to vote to convict. if they don't, if they focus on the jurisdictional issues, the constitutional issues, the first amendment issues, i suspect there will be enough votes to prevent the two thirds supermajority necessary for conviction. host: this is carroll -- carol in new york. caller: i had the privilege of meeting mr. dershowitz a number of years back. i got his books and things like that. i love to hear from him.

i am not only a republican but i also vote democrat. i hope for the person, at least i try to. unfortunately everybody is forgetting what trump actually said. they are leaving off the last part, which was to do it peacefully. they keep leaving that off. i happen to be a trump supporter. i also believe 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 have been doing. i think it is horrible what the media has been doing. mr. dershowitz, i would love it if you would get a group together to actually look into this entire election. guest: i would like to try to do that. i want to comment on the media. trump -- they had a show that

will be nominated for all kinds of awards and which they presented the case against president trump. they presented two speeches. one he made in charlottesville. they deliver the left of the partner he said fine people, but not including white supremacists and neo-nazis. they should be condemned. they had a speech in the capital and left out -- capitol and left out the part he said i want you to march to the capital peacefully and >> it is another thing for frontline and cnn to omit those statements. during the presentation they omitted those statements. the public needs to see everything, that is why c-span does such a good job, it does not pick and choose. during my last presentation, they doctored and edited the tape, they took out my words

unlawful and illegal and made it sound like i think the president could do anything. they made me say the opposite of what i said. the media is often irresponsible in the way it edits presentations. it is important to hear everything in context. i am confident when the senators here everything in context, they will vote according to the constitution. the constitution requires them to apply the criteria for impeachment, which has not been met and the criteria for jurisdiction. the text of the constitution supports that. i think the constitution mandates president trump acquittal, -- president trump's acquittal, not that his speech should not be condemned. it has been widely condemned. host: the author of the case of

impeaching trump and the podcast host of thement that

he will not run for reelection. >> hello and welcome to the city club of