Alan M. Dershowitz
Friday, January 15, 1999 The House Judiciary Committee heard the testimony of Harvard law professor Alan M. Dershowitz when it was considering the articles of impeachment against President Clinton. Dershowitz, a Clinton defender and the author of a new book called "Sexual McCarthyism: Clinton, Starr and the Emerging Constitutional Crisis," was online Jan. 15.
Below is the transcript of the Q & A:
washingtonpost.com: With the second day of the impeachment trial underway, Alan Dershowitz joins us from Boston.
Prof. Dershowitz, this trial has been called both a legal and political proceeding. What do you see it as. And how do you regard yourself, as a legal or political actor?
Prof. Alan M. Dershowitz: None of the above. I think this is a constitutional proceeding that should not be legalistic, nor should it be crassly political. The central point is whether the allegations, if true, constitute treason, bribery or high crimes and misdemeanors.
To answer that question, we don't need testimony about who touched who where, but rather about the intent of the framers, the nature of our constitutional system and the criteria for removal of the president. This should not be a trial in the legal or political sense. It should be a great constitutional debate about the meaning of our system of checks and balances.
Arlington, Va.: In your opinion, what is the appropriate evidentiary standard for conviction in this impeachment trial?
Dershowitz: I don't think we have to reach that issue, in my view, because even if the charges were proved to a perfect certainty, they are not the kinds of charges intended by the framers for removal. But, for those who disagree with me, I think the standard ought to be proof beyond a reasonable doubt. We ought not remove a president on the basis of any other standard.
Springfield, Va.: Do you think that the main reason we haven't amended the Constitution in a while is because liberal "judicial activism" has been amending the Constitution for us with or without the consent of the Congress?
Dershowitz: I don't think we've seen very many amendments, either judicial or formal, primarily because the Constitution is written in broad terms, and is eminently adaptable to the times.
Springfield, Va.: Is what Larry Flynt doing a form of "sexual McCarthyism"?
Dershowitz: I wrote my book, "Sexual McCarthyism," because of fear of a return to the bad old days when McCarthy and J. Edgar Hoover and Roy Cohn used the power of government to pry into the private lives of public figures. The key to sexual McCarthyism is the use of governmental power. That's why the Starr Report is an example of sexual McCarthyism.
What Larry Flynt has done is despicable, but it is an exercise of his First Amendment rights. Larry Flynt is a private citizen, and the damage that he can cause is far less than the damage that can be caused by government officials using the power of government to pry into private lives.
Stony Brook, N.Y.: If this trial is political rather than legal, why are the House managers so intent on trying to prove violations of the law? They should not have it both ways.
Dershowitz: You're absolutely right. Everybody seems to be emphasizing those aspects of the trial that serve their agenda. If this really were a trial, the jurors would not be on television every day, telling us what they think. Nor would the House managers be presenting their case on television. Moreover, we would know what the standard of proof is. I'm afraid of this becoming a show trial of the kind we rightly condemned in Eastern Europe. If 34 senators have already decided that the allegations, even if proved, do not rise to the level of a removable offense, then the taking of evidence through live witnesses will be a show trial.
Ogden, Utah: In your opinion, regardless of your strong support for Mr. Clinton, have the House managers made a case for perjury against the president? Are you convinced that Mr. Clinton is an honest person?
Dershowitz: I am not a strong personal supporter of President Clinton. I am a strong opponent of the misuse of the impeachment and removal power against him. I do not think he committed the technical crime of perjury, but nor do I think that he has shown himself to be an honest person.
San Juan, Puerto Rico: Is there anything meaningful that can drawn from past interpretations of the phrase "other high crimes and misdemeanors" in previous impeachment proceedings? Is there any clear precedent that indicates inclusion of all crimes or only certain more serious crimes? What does the record show?
Dershowitz: Were President Clinton to be removed, I believe this would be the first case in Anglo-American history of impeachment and removal of anyone, ever, for trying to cover up and even lying about a consensual sexual encounter. It would legitimate sexual McCarthyism and make sex a weapon in the political wars. The closest precedent we have is the House Judiciary Committee refusing to impeach President Nixon for committing perjury in his filing of a fraudulent tax return. Nixon's actions were closer to being governmental, since they involved the tax deductibility of government papers, but a bipartisan vote ruled that it was too close to the personal side to warrant impeachment.
McLean, Va.: Part of the definition of a sexual relationship given to President Clinton in the Jones case was based on the phrase "intent to gratify." Isn't proving intent very difficult and the House managers has not yet address his intent?
Dershowitz: Proving intent is always difficult. But proving an intent by one person to gratify another is impossible. To give the government the power even to ask that question is to encourage sexual McCarthyism.
Longmeadow, Mass.: Do you believe perjury regarding sexual behavior in a sexual harassment case should be considered more severe than perjury regarding sex in other types of cases?
Dershowitz: No. I think the most serious form of perjury is the biblical prohibition against bearing false witness against an innocent person. The alleged perjury here which, by the way, is not charged as an article of impeachment involved a peripheral matter in a dismissed and now settled civil suit. It is the lowest grade of perjury, and nobody is ever prosecuted for committing.
Englewwod, N.J.: In your recent very interesting, readable book, you mentioned that some of your clients run their lives by taking chances until they are caught or challenged. In your experience, do these people change?
Dershowitz: Sometimes, and just a little bit. I have rarely seen the kind of dramatic change that we sometimes see in fiction. Most of my clients are chastened by having been caught, but often if they win the case, they think they are invincible. I warn my clients that I will only represent them once, and if they are accused of doing it again, they have to find themselves another lawyer.
Grafton , Vt.: Do you see a precedent being established that may harm what has always been a clear separation of powers in our constitutional form of government?
Dershowitz: Yes, I do. I think the House's action will live in infamy, and has brought us closer to a parliamentary form of government, without the protections of the parliamentary form. For example, when the Knesset brought down the government of Netanyahu, Netanyahu was at least able to call for new elections. If Clinton could call for new elections, he would win overwhelmingly.
Washington, D.C.: What do you think would have happened had Clinton v. Jones gone before the Warren Supreme Court, or at least when Justices Marshall, Blackmun or Frankfurter were serving? Do you think that the court's leaning in recent years away from judicial activism and toward a more conservative stance and more strict interpretation of the Constitution is a major factor that allowed the Clinton v. Jones case to go forward and this whole mess to begin?
Dershowitz: No. I think that any recent Supreme Court would have ruled the way this court did. In "Sexual McCarthyism," I argue that the decision was mostly right, but that the president should not have been required to give his deposition until after he left office. But the fault here was not with the Supreme Court; it was with Clinton's lawyer, Robert Bennett, who foolishly allowed his client to testify about his sex life; and then doubly foolishly misrepresented the content of the Lewinsky affidavit without having spoken to Lewinsky; and triply foolishly, then tried to blame that on his client rather than accepting the responsibility himself. The Jones case never should have proceeded to deposition. It was the greatest legal blunder of the 20th Century.
Nor is this Monday morning quarterbacking. In "Sexual McCarthyism," I quote from what I said and wrote six months before Clinton testified at the Jones deposition, urging him to settle or even default the case. But Bennett never told Clinton about the default option, and now Bennett is telling everyone who will listen that it was the president's fault and not his.
Washington, D.C.: I'm watching the trial on TV right now and IT'S SO BORING. It's the same unconvincing arguments over and over again, the same mean-spirited clatter. Yet this is a moment of great constitutional drama. How will historians treat this whole mess?
Dershowitz: The prosecution case is a shambles because egotistical congressmen, eager for their 15 minutes (I wish it were only 15 if Warhol were alive, he'd have to amend his famous quote fourfold) refuse to edit their speeches. Each one is repeating what the person before them said, but trying to read the script more eloquently. My kingdom for a good editor! But the words 'editor' and 'congressman' don't go together.
Arlington, Va.: In 10, 20, 50 years from now, what do you think the legal/history textbooks will be saying about the Clinton impeachment and this whole episode in American history?
Dershowitz: It depends on how it comes out. But I hope it will condemn the Republican members of the Judiciary Committee who forced this constitutional crisis on America.
Washington, D.C.: You state: "I don't think we have to reach that issue, in my view, because even if the charges were proved to a perfect certainty, they are not the kinds of charges intended by the framers for removal."
How can you be so self-assured that you know what the framers intended?
Dershowitz: Because in 500 years of the history of impeachment in Anglo-American countries, no one has ever even suggested, until this case, that a sex lie and a sex cover-up is grounds for impeachment. Don't tell me there's never been a previous sex lie in the last 500 years. There have been plenty, but nobody previously ever seriously considered that it rises to the level of a removable offense.
washingtonpost.com: That was our last question for Alan Dershowitz. Thanks for joining us today. Any parting thoughts?
Dershowitz: Our system of checks and balances requires that each branch be independent and serve the people in its own way. The impeachment power is like the ax behind the glass that says "Do Not Break Except in Case of Emergency." Removal of a president was intended as a last-resort safeguard against constitutional tyranny. We are trivializing it by applying it to conduct which does not threaten the liberty of Americans.