♪ merry christmas, merry christmas, happy holiday. ♪ hello america, professor allender to wits, how are you. >> it's good to see you, nice to meet you. >> likewise. >> should president trump be impeached? >> it would be an utter abuse of the power of congress. they set out four criteria for impeaching a president. treason, bribery or other high crimes and misdemeanors. unless one of those criteria is

met, congress does not have the authority to impeach. if they do, their impeachment would be void. alexander hamilton said any act of congress that is inconsistent with the constitution is void. congress can maybe get away with impeaching because there won't be judicial review but that doesn't mean they wouldn't be violating their oath of office. it would be abusing their power if they impeached president trump on this record. >> unconstitutional you say, i hear legal analyst say impeachment is whatever they the house says it is. it's a political grueling process. did the framers give unlimited power to the framers. >> of course not. >> maxine waters said the same thing and then she said there is no law. in other words she is above the law. congress is above the law.

congress may be able to get away with it but this confuses what they can get away with it. any member of congress who votes to impeach president trump without a finding that he is guilty of treason, bribery, other high crimes and misdemeanor is violating their oath of office and abusing their power. maybe they can get away with it, but they are acting in an an unconstitutional fashion. >> there seems to be this idea, i was watching law professors, honestly i fell asleep about halfway through. i was watching them the other day, and they sounded like members of congress, i'm just being honest about it and they were talking about abuse of power, robbery and so forth, listening to this, i want to turn to you, this word bribery has a specific meaning and it doesn't have the meaning that many seem to suggest it does.

it doesn't mean everything and anything, it doesn't necessarily mean this. what does it mean. >> there are four criteria. we know what treason means because it's defined in the constitution. bribery, we know it when we see it. when you pay a government official corruptly to perform an illegal act or an act that is motivated by money, but it can't operate when you are the president of the united states and your conditioning or withholding money in order to make sure that a country isn't corrupt and you're asking them to investigate. that just doesn't fit any definition of bribery. common-law, statutory, however you define the constitution, it just doesn't fit. what they are trying to do is what the kgb, what they said to stalin the dictator, i'm not

comparing our country to the soviet union, just want make sure it never becomes anything like that. they said show me the man and i will find you the crime, and that's what some of the democrats are doing pretty have trump in their sites, they want to figure out a way of impeaching him, and they are searching for crime. first they came up with abuse of power. not a crime, not in the constitution but now they're saying bribery, but they're making it up. there is no case for bribery based on, even if all the allegations against the president were to be proved, which they haven't been, but even if they were, it would not constitution the impeachable offense of bribery. eric: i understand this is not a criminal case, nobody is saying this is a criminal case. we do a little thing like the magna carta coming forward, the whole notion and the enlightenment of due process. you have the right to confront your accuser and have witnesses

and so much of this has been eviscerated given a rubberstamps by the judiciary. >> they have four witnesses, three of them represent the democratic party and only one witness was given to the republican so they pick a democrat who voted for hillary clinton, but why do they get three witnesses in the democrat, the republicans only get one. why not a quality quest mark alexander hamilton said in federalist papers number 65, the greatest danger would be impeachment turned on the numb number. [inaudible] if it turns on the fact that they now have majority in the house but not in the senate, that would be a complete abuse of what the framers had in mind. alexander hamilton is misquoted all the time. he use the word political but he didn't say the process should be

political, he said the crimes are political in nature but the process should be nonpartisan and nobody should be impeached and removed unless there is an overwhelming bipartisan consensus. i'm not making that up. i am quoting congressman nadler when bill clinton was being impeached. i opposed bill clinton's impeachment for the same reason i opposed donald trump's impeachment. there was no widespread consensus for there was no clear high crime. what bill clinton committed was a low crime, a crime to protect his personal life, much like alexander hamilton pretty was secretary of the treasury and committed committed adultery and then paid extortion money. when they said were to charge you with that he said no that would be a high crime, using government funds to pay an extortionist and he wrote an essay admitting his adultery and payment but denying that he paid from government funds. mark: let me ask you a question.

we will go through some of these examples and get your take on it. whether one professor said this week, and it's not just them, but if this is an impeachable offense, this phone call, then there aren't impeachable offense. it's absurd. john adams arrested and jailed journalist. abraham lincoln, suspended habeas corpus, shut down treasonous newspapers in the civil war. arrested and jailed journalist. woodrow wilson a racist and segregationist, re- segregated the government, he locked up socialist opponents and locked up critical journalists fdr,. [inaudible] upheld by the supreme court by the way. kennedy and the irs and his opponents are not just democrats, i'm giving examples,

lbj irs, fbi, cia tapped the phones of his opponents. we have republican examples too. is this a joke that the phone call by donald trump is the worst example that these professors can come up with that that's not impeachable, nothings impeachable, under their theory every one of these men should have been impeached. >> they have created open-ended criteria which there is no relationship to the words of the constitution itself. if president trump is impeached it will set a terrible precedent that will weaponize impeachment and the next democrat who gets elected will be impeached because they will find an abuse of power. it's hard to find any modern president or old president that can't be accused of abuse of power. eleanor roosevelt instructs his attorney general when they arrest german saboteurs, i don't want these guys and i want them

electrocuted, trying to tell the attorney general how to try the case. lincoln much the same, opponents of a political leader, particularly during times of crisis can always find abuse of power. you will find the word abuse of power used by virtually every opponent, every president, we hear about abuse of power, abuse of authority putting partisa int over national interest but how many foreign-policy decisions have been made over the years to help them get reelected. if we start making that an impeachable offense there would be no presidents left and we will have the english system which is james madison said we don't want. in that system the prime minister serves at the will of the parliament, the minute they say we don't have faith in you, he's gone, vote of no

confidence. that's exactly what we didn't want to empower them to do. mark: that's a great point. isn't that why when george mason was talking about maladministration they said wait a minute we don't want the president to be neutered by the house of representatives. >> that's right we don't want them to serve at the will. we don't want a british parliamentary system. we want a republic and it requires a strong president who has to run for election every four years but that's the ultimate protection. he has to run for reelection and he can only serve two terms. if you want to amend the constitution to include abuse of power, find. we had to amend the impeachment provisions once because it didn't include incapacity when woodrow wilson had his stroke. he couldn't govern and there was no procedure for removing him. the 25th amendment now creates that. you want to amend the constitution to include abuse of power i'd be opposed to that. amend it but don't make it up as you go along. i think jonathan had a great phrase. he said this is not improv jazz.

you can't just make it up. you have to look at the words of the constitution and the words of the constitution are as clear as can be. the four criteria, if they're not met, congress does not have the power or authority legitimately to impeach the president. i'm not a supporter of donald trump politically. i voted for hillary clinton. the original title for my book was i eventually wrote a book called the case against impeaching trump, also the case against the democratic house impeaching trump. i started writing the book when it looked like hillary clinton would be elected. the republican said they would impeach on day one so the original title was the case against impeaching hillary clinton. >> why did you change the name. >> just the names and i went to the book and change some things. if i had written this book, they would build a statue, the liberals would love me but now because the same arguments are being used in favor of president trump, who i didn't vote for, i'm a pariah among liberals and radicals on the left.

mark: and ask about that soon but i want to ask about this verse. there is almost no talk about legislative. he. legislative tyranny. >> is this tyrannical. >> it could be if they impeach the president and they denied due process they will be acting tyrannical he. i believe if they impeach the president on this record they will be abusing their power and their oath of office and maybe they can get away with it but it doesn't mean it's the right thing. mark: when we return i'm gonna ask you this, doesn't the president have a right to confront when it gets to the senate and the trial, the gift user who began all this #the so-called whistleblower, or are we going to impeach the president and have a trial without him ever known

officially who his accuser is. i'm ask you about that when we return. ladies and gentlemen you can watch me most weeknights and join us by calling 844 le vin tv or go to blaze tv.com/mark to sign up. later in the program we will talk about this fascinating book talk about this fascinating book as well that he have you ever worked with dr. francis? oh yeah, he's ok. just ok? guess who just got reinstated! well, not officially. nervous? yeah. yeah me too. don't worry about it, we'll figure it out. i'll see ya in there! just ok is not ok. at&t has america's best network, now with our best plans, at our best prices, starting at $35 a line for 4 lines. new from at&t. -excuse me. uh... do you mind...being a mo-tour?

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professor, does the president have the right to confront his accuser if it goes to trial. >> absolutely. it goes back to the magna carta. there's no concept of due process which doesn't allow an accused to confront their accuser. whether it's civil or criminal or political context, you have to be able to confront your accuser. you have to know who your accuser is but we don't believe in anonymous accusations in this country. ultimately the chief justice will have to rule on that because he presides over the trial in the senate of only the president. anybody else is impeached, you don't have the chief justice. they introduce the judicial element to make sure all three branches of the government are involved in the removal of a

president. i think it will be inconceivable that you could have a trial in the senate without the president being able to confront his accuser. >> you are an expert on a lot of the thing you've looked at the history, i've looked at the history, and they were concerned, they were concerned that you could have an out-of-control house. you turn over every two years and they look at the senate and they set up the system. you need to thirds super majority to convict. it's gonna be overseen by the chief justice of the supreme court so there was some concern when they were debating about impeachment. first they didn't want it, some of them, then they said we need to have it, but to have a check on the house of representatives, wasn't there. >> no question, we were terrified the framing foundation leaders, terrified of a runaway democracy. that's why they originally had a senate that was not popularly elected. it was essentially appointed by

the state legislature and they needed to change that with an amendment but this was was to be the wise old man of all men, the wise old men who would serve as a check, even within the legislative branch on the elected members of the house of representatives. there is debate whether or not to put the removal of the president in the hands of the supreme court, but some of the framers said that wouldn't be right because you can try a president after he's impeached for the crimes, and if you did that it would be fair to have the same institution the courts, try him after they've already impeached him so they decided to put it in the hands of the united states senate. mark: let me i ask about subpoenas. through most of our history if they issued a subpoena or a document or witness request, the two branches would work it out somehow, someway. we've now reached a point where

we have a committee in the house, the house intelligence committee, before that the house judiciary committee, not even the whole house or the whole congress, you issue a subpoena and you better respond to it and give us everything we ask, no objection. you better give us white house counsel or whatever we want. we don't want to hear of attorney client privilege, separation of power, you give us what they want. is that what the constitution provides. >> quite the opposite. i had a case many years ago where they subpoenaed my client in front of congress to review client privilege information and the committee said there's no such thing as lawyer client privilege in front of congress. we prevailed and wanted to get to the court. the courts according to hamilton are the umpires between the excesses of the legislative branch and the executive branch. when the legislature issues a subpoena, a president is entitled to say no, go to court. you have to get authority from the court i'm claiming privilege. if it's too broad, as one of the judges recently held, then you lose, but you can't be impeached

for invoking the separation of power in our system of checks and balances. that would punish, essentially, exercising your own constitutional authority under article one, two and three of the constitution. we have a three-part system of government, equal, coequal branches, separate branches in the courts and the umpires. mark: what i am hearing today from these committees and these professors is we don't have cold equal branches, we want trump out so we have one all-powerful branch, tomorrow maybe we will have equal branches of government, but the fact that ththe president asserts his rigs and he's not the first to do this, he's not defying a court order, he's defying a request, a demand by another branch that saying i'm in a do this out with you and they're saying in peach of offense, there's another

count. has this ever been done before? >> no and it's extraordinary dangerous to do this because it denies the executive branch the power granted to it under the constitution as a coequal branch to challenge legislature. when i was growing up it was called the mccarthy. and we civil libertarians constantly challenge congress, took them to court, one a lot of those cases to eliminate the excessive legislative power during the mccarthy period. those on the left are saying legislative power, legislative power, no executive power. to everything there is a season. the constitution was written for all seasons not just for today or mccarthy. >> where are the civil libertarian. >> they have disappeared.

that aclu has abandoned its mission. i was a proud member during the next and impeachment which i favorite. i said they should be in there defending those procedural rights. my mother was furious with me. she said whose side are yo you . i said i'm on the side of the constitution. i said i'm on the side of the constitution. she said don't talk to me that way you have to pick the jews or the nazis. i said no i picked the constitution. they should be deeply involved defending the rights of the president to do process, free speech, they are claiming now that the president committed impeachable offense by tweeting, writing and talking about how he disagreed with the ambassador to the ukraine.

look, i think she's a great woman. i don't agree with the president but i certainly defend his right to criticize ambassador and to fire an ambassador. he has the right call and ambassador and said you contributed to my last campaign and i have someone now who's going to contribute $2 million. you're out, he's in. that's how they get appointed. the idea that we start constraining his power to discuss ambassadors or fire ambassadors is inconsistent with ambassadors is inconsistent with the constitutio - [spokeswoman] meet the ninja foodi pressure cooker, the best of pressure cooking and air frying now in one pot, and with tendercrisp technology, you can cook foods that are crispy on the outside and juicy on the inside. the ninja foodi pressure cooker, the pressure cooker that crisps.

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anna kleiman. they are investigating the pensacola shooting as an act of terrorism. according to the fbi the shooter also's blasted support of israel on twitter. he was an officer in the saudi air force and was regarding training and pensacola. they believe he visited new york city and including rockefeller center just days before the shooting. they are working to the purpose of that trip. this shooter killed three service members before being killed. and the man who gave big bird his warmth and oscar the growl on her for more than 50 years on sesame street died sunday in this house in connecticut. spinney was 85. i'm an acquirement and back to

life, liberty, and levine.

would clearly be judicial review there. the president would say you need to thirds, you don't have to thirds, i'm not leaving, or what if the head of the senate, let's say the democrats were in control and they say we don't like the chief justice, when i can have them preside. you can't just violate the constitution. i don't see any difference between not letting the chief justice preside on one hand or reducing the vote and ignoring the criteria of the constitution. they're all unconstitutional. mark: but this idea is a minority view the map very much. it would not be a minority view if hillary clinton were being impeached for the same left people who are attacking my position would be espousing my position if hillary clinton were being impeached. how i know that question because many of them took that view when

bill clinton was being impeached. they fail what i call the shoe on the other foot test. if you're serious academic you must always pass that test. you must say the same thing you would be saying if the political dimensions were shifted, if it were a democrat being impeached by republicans unless you can pass that test you're not a legitimate academic. >> what you think would be her position now that since they have denied this president and others have had basic fundamental fairness in terms of witness and representation, not secret testimony in the dungeon or wherever it's taking place. >> i think it would be a mistake to bring the case now. i think he would have a better shot at getting judicial review if you waited and established a better record and found a clear violation. right now we don't even have an impeachment. if the impeachment goes forward without any of the four criter

criteria, that might be an appropriate time or if he were to be convicted which i don't think will happen. i think it's much of a hypothetical at this point. >> the house has basically made up the rules as it goes along. they've abandoned the rules that were in place with the andrew johnson impeachment and abandon the rules when henry hyde and the republicans in clinton, there's no resident in american history that's been treated like this, is there. >> no and the house does have the authority to make up the tools as they go along as long as the rules comply with basic due process. due process is part of the constitution. every citizen from the lowliest to the president of the united states has the right to be treated fairly and has the right to a process that is due him. there are limits to how far congress can go making it up as they go along. mark: you said something earl er that causes me to it wonder, this process is so partisan, so

abusive that it's going to have an impact, it is having an impact on our culture and on the greater body politic, that the myopic thinking of nancy pelosi and the democrats right now has pulled all the republicans together against, i've never seen them this united, you can see whether it's watching news on tv or wherever it is, they are driving a wedge in this country that i haven't seen since the 1960s. you agree. >> i agree, i came of age during the vietnam war so i have seen division but i've never seen division where people can't talk to each other, people have to have separate thanksgivings and christmases and hanukkah is come you can't talk to your relatives and friends. i am a pariah on martha's vineyard because i take views that are inconsistent with the

majority view. i've never seen a situation where there's been so much division. the clinton impeachment cause division but not like this, and look, there's a lot of fault to go around. i think the president is divisive. he uses words that divide as well. he fights back, he is what he is pretty was elected, everybody knew who he was, he didn't surprise anybody what he's done in office, but there's so much division on both sides but i hope we can begin to heal. i don't see the healing process being furthered by an impeachment. i think it will further divide the country. >> folks don't forget you can join me most week nights on levintv. call 844 levintv or go on the internet. go to blaze tv.com/mark. we would love to have you. we'll be right back.

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professor, you've written a book guilt by accusation, the challenge of proving innocence, you've spent your entire life defending people who've been accused of criminal activity some of the biggest cases in the world, now you have to defend your self in this epstein matter. tell us what this is about. >> is remarkable. in 50 years at harvard, never had a complaint, i have a wonderful marriage, i was introduced to him by a very distinguished lady called lady luck child, he was very active at harvard, he had an office at harvard, i met him, we had academic connections, not much of a personal friendship, i didn't know whether he had a brother or mother, it was an academic friendship and then

suddenly i get accused by a woman who had never met, and this is a woman who told the fbi who she had sex with who is not me, told her boyfriend it wasn't me, told her best friend it wasn't me and her own lawyer in a tape-recorded conversation said it would be impossible for you to have been in the place that she said she met you. she's wrong, simply wrong. mark: when was this allegation made. >> the last day of 2014. she claimed she remembered, after telling everybody she didn't have sex with me, she had an exchange of e-mail with someone who said she never met me and then she meets her lawyers and suddenly she remembers not only having sex with me but on seven occasions and places that i never was

during the relevant time period. even including in a car in front of my house where she then claims she went into my house where my wife has an office, she's a psychologist, my daughter had an au pair, we had video surveillance, totally made up stories and the question i ask in my book are twofold, how do you protect yourself from false accusations. i was tell myself it's can be controversial, you can't get close to lines, don't flirt, don't tex touch anybody, i livey those standards. i never flirt, i never touch anybody, i've never had an accusation and yet i'm accused. and what's once you're accused, how do you defend yourself. nobody's ever prove their innocence more compellingly than me. it's the accuser who never met the accused.

in every other case is consensual, it was harassment, maybe not, i never met this woman. there's no evidence that we were ever in the same place at the same time and yet people believe it and that's why were going to trial. were going to have a major trial in which i'm going to call massive numbers of witnesses including our own lawyers, it's all part of an extortion plot against leslie what wexner, the owner, billionaire of victoria secrets. the plot was to accuse me publicly and privately go to leslie which they did and essentially say to him look, if you don't want to have that happen to you what happened to him, there are ways of resolving this and now we know the same lawyer who did this in the new york times reported recently was engaged in another plot which sounds very similar to try to sell fake photographs of prominent people for money and so this is all going to come out at the trial. >> your filed suit. >> i filed suit against the

woman who accused me and i'm planning to file suit further against their lawyer. >> you reach a point in your life, you got this long career, you've written your books, you have your reputation and as you're getting into your time, you have to defend yourself. what is that like? >> it's terrible. it's terrible for me and my family. for 25 years i was the main most populous speaker at the why. this year i have a book called defending israel. i have story, you would think they would invite me to it talk about my book. no, the jewish oriented organization. they refused to invite me, they know i'm innocent, they acknowledge there's no evidence, but they say you've been accused

so they have canceled me. there are tv shows that won't have me on, they say an accusation is enough. that's why i entitled the book guilt by accusation. if you're accused today it's impossible to defend yourself. there are people who think that sexual assault that even innocence should not be a defense. think about that. innocence not a defense? what could be more un-american than having someone found guilty based on an accusation. the woman who accused me has a long history of lying. she remembers vividly seeing al gore into. core in a place they were never there. she remembers bill clinton be flown in a new helicopter was secret service and leading to age girls. secret service proved they were never there. she said she met epstein at 14,

15, 16. she was over 17 and close to 19 when she claims she had sex with people. this is a woman with a long history of lying. i have a long history of credibility and yet people, she has no evidence and i have overwhelming evidence. the judge the other day said this as he said, she said. no. it's she lied, he proved conclusively his innocence. i have overwhelming evidence. i have all my travel records, proven that i could not have possibly been in the places she said i was in her own lawyer went over the travel records and concluded in a tape-recorded conversation that would've been impossible for me to it have been in places and she's wrong, simply wrong. you would think that would be enough to persuade people, but no, an accusation trumps evidence. >> and now you have to bring a lawsuit to clear your name. >> and it's costing me over million dollars to do it, my

insurance premiums have skyrocketed, people have canceled events, it's as if i've been found guilty of something. i've called for an fbi investigation. i immediately took the case to the u.s. attorney's office, the district attorney's office and the fbi asking them to investigate me and to investigate my accuser. one of us is committing perjury and the fbi should decide which one is committing perjury and charge that person and that's what i've asked have done because there is no process. >> any response yet. >> will see. the trial is scheduled for next year and there will be perjury committed in front of federal court injury and that's not tolerable. the fbi should come in and resolve who's telling the truth. i know who's telling the truth and she knows who's telling the truth. >> we'll be right back. i'm your 70lb st. bernard puppy, and my lack of impulse control, is about to become your problem.

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professor, one of the things i see, one of the problems is, lawsuits are filed, whether it's a case like this or divorce case, whatever it is, the media run with the lawsuit and give us the opinion of the judge. this is a problem. >> it is. and they wrote an opinion,

warning the media not to do that. they say anybody can put anything in a lawsuit and you can commit perjury and only goes after you, and your immune lawsuit so the tactic these lawyers used against me was they accused me in court papers, they leaked to the press and when i denied it they sued me for defamation claiming there was no right under the first amendment to deny your guilt and proclaim your innocence. imagine what the first amendment would have left if you couldn't publicly announce your innocence after you been accused in court papers, and i hope this case will begin to uncover and remedy this terrible situation where they can accuse you under the protection of the litigation privilege in court papers and not allow you to respond in public. that is just unfair and i think the framers would be turning over in their graves.

thomas jefferson would be saying that's not what the first amendment was intended to protect. you not getting a lot of support and they don't want to support anybody who's attacking and accuser. >> is and also because of your principal position on impeachment. >> no question. i get e-mails every day saying we thought you might be innocent but now that we see are supporting trump we know you have no morality and therefore your guilty, or we hope you're guilty because that will diminish your voice or i heard the website said we hope he's guilty because he's too powerful and to articulate, and if he's guilty of this it will diminish his voice and their right, look at the 92nd, they diminished my voice on israel. they do not allow me to it defend israel after 92nd street because of a false accusation which they know is false. accusations today can be weaponize by your political enemies, funny story, a guy came

over to me on the porch as i was leaving for the summer and he gave me the finger i walked over to him and i said that's pretty articulate, what was that for. was it epstein, trump, israel, he looked at me and he said all three i guess, but clearly people are trying to attack me on the epstein thing because they don't like my views on israel, they don't like my views on trump, and they don't like the fact that i defended epstein, that i was a lawyer for somebody her turned out to be a pretty awful person. mark: this is where families important, isn't it. >> my families and friends have been incredibly supportive. they know i don't flirt or do anything like that, i'm totally loyal to my wonderful wife who has stood behind me in every possible way and my children, my grandchildren, tongue about my grandchildren. they are in their 20s and they live among people who believe that an accusation is, but they

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when insurance is affordable, it's surprisingly painless. the death of civil liberties, the fact that the hard left particularly, people who have causes have turned against fundamental liberty. they once had every cause starts as a movement that it becomes a business and it degenerates into a racket. i'm trying to ri protect the meo it movement from becoming a racket and i want to stand up for president trumps rights. we live in an age where the end justifies the means. if you're radical feminists, if someone is accused you must be guilty. if you're radical democrat you know if he's president trump he must be guilty. we have to fight to preserve our

basic due process and our basic and fundamental concern for free speech be five i think you been wrongly described over the decades but i think i would describe you as a libertarian constitutionalist. >> i think that's absolutely accurate. i'm a liberal civil libertarian libertarian. >> but your classical liberal. >> and i want to bring them together to fight the extremists on both sides, both of whom are denied due process and free speech. i think we have to keep our constitution sacred. >> you agree that the hard left in the democrat party and elsewhere. >> certainly in academic life. that's the future. today's students who are being propagandized to diminish the importance of due process are our future leaders. that's my biggest concern. >> i gotta bring you back to

discuss that. it's been a pleasure . >> thank you very much. >> see you next time on life, liberty and levin >> good evening and welcome to the next revolution. this is the home of positive populispopulism. we are live from the swamp with sarah, jason, tammy, i been so excited about this panel. it can be great. we have all the big issues, all the policy, all the politics but we start with the democrats hate driven attempt to overturn the 2016 election to nondemocratic means. because they fear that none of their presidential candidates are strong enough to beat trump in 2020. one line last week gave the whole game away. he came right at the start of those hours of snooty, snarky