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Trump's impeachment lawyer says actions are 'noncriminal'

Alan Dershowitz is a member of President Trump's

Alan Dershowitz is a member of President Trump's legal team for the impeachment trial. Credit: John Lamparski

WASHINGTON — As the Senate prepares to kick off President Donald Trump’s impeachment trial on Tuesday, the House Democrats prosecuting the case against Trump, and his defense team, offered a preview Sunday of the arguments each will lay out in the coming days.

Alan Dershowitz, a constitutional law professor serving on Trump’s legal team, argued on the Sunday morning political talk show circuit that the two articles of impeachment against Trump for abuse of power and obstruction of Congress do not meet the constitutional standard for impeachable offenses because they do not point to any statutory crimes, an argument that Rep. Adam Schiff (D-Calif.), the lead impeachment manager presenting the case against Trump, dismissed as “absurdist” during an appearance on ABC’s “This Week."

Schiff, who serves as chairman of the House Intelligence Committee, argued that Trump’s defense team has yet to challenge the underlying facts surrounding the president’s dealings with Ukraine that are at the center of the impeachment trial. He said Democrats will be "fighting for a fair trial" as he repeated calls for Senate Majority Leader Mitch McConnell to allow additional witnesses and documents to be presented at the Senate trial. 

"The only thing really new about the president's defense is that they're now arguing, I think, because they can't contest the facts, that the president cannot be impeached for abusing the power of his office,” Schiff told “This Week” host George Stephanopoulos.

The exchanges between both sides came a day after House Democrats filed a 111-page legal brief outlining their case against Trump on charges he abused his office by calling on Ukraine’s newly elected president to launch an investigation into his Democratic rivals ahead of the 2020 presidential election, and obstructed Congress by defying subpoenas aimed at securing information about his dealings with Ukraine.

The House’s seven Democratic impeachment managers, in their brief, asserted that Trump “used his official powers to pressure a foreign government to interfere in a United States election for his personal political gain,” and “attempted to cover up his scheme by obstructing Congress’s investigation into his misconduct.”

Trump’s legal team is expected to file their formal trial brief on Monday that will outline their case for acquittal, but on Saturday White House Counsel Pat Cipollone and Jay Sekulow, the president's longtime personal attorney, filed a seven-page response to the House brief that argued the articles of impeachment against Trump are “defective” and “a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election, now just months away.”

Dershowitz, one of the nine attorneys named to Trump’s defense team last week, argued on “This Week” that the two articles of impeachment against Trump are for “noncriminal actions” that do not rise to the level of committing “bribery, treason and other high crimes and misdemeanors” as outlined in the Constitution.

He argued it should be left to voters to decide whether Trump’s actions were “wrong.”

“If the allegations are not impeachable, then this trial should result in an acquittal, regardless of whether the conduct is regarded as OK by you or by me or by voters,” he said on “This Week.” “That’s an issue for the voters.”

Other constitutional law scholars have pushed back on Dershowitz's argument, noting that impeachment was devised by the framers of the Constitution as a political proceeding, not a criminal proceeding, and the mention of "high crimes and misdemeanors" in the Constitution applied to abuses of power.

Corey Brettschneider, author of the book “The Oath and The Office: A Guide to the Constitution for Future Presidents” in an interview with Newsday said because the impeachment trial “is certainly not a criminal proceeding, the standard is different.”

"It's not a question of reasonable doubt or even whether a crime has been committed, but rather about a kind of abuse of power,” Brettschneider said, adding that “high crimes and misdemeanors” is not a category found in criminal law statutes, rather it’s a constitutional charge that refers to the “degradation of the office and a president who has abused power and therefore disregarded the oath.”

Democrats making the Sunday show rounds continued to argue that McConnell should allow additional witnesses to testify and compel the White House to turn over documents that were blocked from release during the House impeachment inquiry.

Rep. Jason Crow (D-Colo.), one of the House impeachment managers, told CNN's "State of the Union": "This cannot be the first trial in American history, the first impeachment trial in American history, where we don’t have documents and witnesses produced by the president."

Trump's former National Security Adviser John Bolton has said he is willing to testify if subpoenaed by the Senate, and House Democrats have said the disclosure of new documents provided to lawmakers by Lev Parnas, a former associate of Trump's personal attorney Rudy Giuliani, points to the need for additional witnesses and documents. Parnas, in interviews last week, has said Trump was fully aware of the campaign to pressure Ukraine into opening a politically motivated investigation that could benefit Trump.

Rep. Hakeem Jeffries (D-Brooklyn), who is also serving as an impeachment manager, defended Democrats' push to call witnesses in the Senate trial that did not testify during the House hearings.

“We proceeded expeditiously because Trump’s abuse of power, his pressuring of a foreign government, in this instance, for his own personal political gain, related to an urgent matter of national security,” Jeffries said on Fox News Sunday. 

Sen. Dick Durbin (D-Ill.), the No. 2 ranking Democrat in the Senate, appearing on NBC's "Meet the Press" said Democrats had not been included in discussions with McConnell about the rules that will govern the trial.

“We’re ... a little over 48 hours away from the trial actually commencing, and there hasn't been the most basic negotiation or exchange of information," Durbin said.

Sen. David Perdue (R-Ga.) offered some insights into the possible structure of the trial, telling "Meet the Press" host Chuck Todd that Republicans are considering a format that would give the House impeachment managers 24 hours, over two days, to present their case. Trump's defense team would then follow with the same amount of time. Senators would then have 16 hours to question both sides, with questions submitted first to Supreme Court Justice John G. Roberts, who is presiding over the trial.

“Then we have, at that point, the opportunity to do exactly what we did after phase one in the Clinton trial, and that is to decide where we go from here: Do we have more witnesses, do we need clarification?” Perdue said referring to the 1999 impeachment trial of former President Bill Clinton.

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