tv Alan Dershowitz David Kaplan CSPAN November 18, 2018 9:00pm-9:48pm EST
>> please raise your hand to make this possible. we are grateful to the college and the night foundation, lho north america and the bachelor ndundation. my name is pass calcharlot, and i am the one of hundreds of volunteers helping us make this fair possible, please give a round of applause. [applause] this morning's session promised to be a very exciting one. we ask that you please turn off your cell phones at this moment. also, the session will go on for about 45 minutes. we will have q and a, and at the right moment i will appear in order to end the session. i ask that you please transition at the appropriate time and the book signing will take place at the right of the elevator.
at this time i have the distinct honor to introduce our extraordinary panelists. first we have alan dershowitz, one of the most famous and celebrated lawyers in america. he was the youngest law professor in history. he is now the felix frankfurter professor of law. many best-selling books, and to the dearths would has advised many of the most famous legal cases including oj simpson, anatoly issue rensky, michael milken, cloughs van ball o, and mike tyson. he is the author of "the case against impeaching trump" please join me in welcoming him. joining him will be david
bkaplan, whose books include "silicon boys," "the accidental president" he teaches courses in journalism and ethics at nybu in the tradition of the nine and the brethren the most dangerous branch inside the supreme court's assault on the constitution takes us inside the secret world of the supreme court. please join me in welcoming david kaplan. [applause] [laughter] >> does your book belong to the right of mine? >> we'll see. >> i guess it all depends on one's perspective.
>> well thank you a for coming this is a great group. this is my first miami book fair and i am just totally impressed. [applause] the lineup of speakers and to see so many readers of books and speople who appreciate books is just fantastic, so thank you to the miami book fair for having us both here. alan a i talked about how to. >> the presiding officer: and i think we're each going to talk for 5-6 minutes, we'll argue with each other and then go to questions and answers. alan's book is about impeachment, mine is about the supreme court but we have something in common in that both these books are contrarian on their respective topics and alan and i have each been voted off our o respective islands. alan quite literally, had a dust-up with his former friends up on martha's vineyard who
didn't like his independence and contrarianism, and for me i'm not invited there that often but my own wife pretty much hates my book. or at least half my book. hello to her if she was listening at home which she'ser probably not because she's probably sick of listening to me talk about my book. when i gave her -- she's my best reader and first reader and when i gave her a copy of an earlier draft she says i don't agree with half of your book. i said i didn't ask i just want you to make it better. she said i don't want to make it better because i don't agree with it. so let me give you a brief summary of my book. it really intimidates to do two things. one it's an inside look at the current court, at the justices. they're not demi gods, they live in this great marble temple, but they're just people.
so whether it's chief justice robert vanity, or clarence thomas being enraged over his confirmation hearings or how neil gorsuch hams performed the impossible. nobody likes him. -- or, hoy elena kagan is thardest working of thena justis and works for her clerk's hard and the arrival of brett kavanaugh after his recent unpleasantness at the confirmation hearings. i'm -- maybe we'll have questions on that and i'm happy to talk about that but i think what the i'd like to focus my few minutes on is the serious argument in the book, which is that the court is too involved in american life. it's too powerful, it's too interventionest, and l it acts because it can, and not because
it should. that isn't a liberal perspective, it's not a conservative perspective, and my book criticizes the court in roe v. wade, which constitutionalized the right to abortion. tuit criticizes bush v. gore, which resolved the presidential election. it criticizes the gun control ruling in 2008 that says there was an individual right to own a handgun in your own home. the criticizes citizens unite tsaid, and shelby county which gutted my of the voting rights after 1965, and more tentatively suggests that eberg fell, declaring the right to same-sex marriage while probablyiectmight have been best put off by the court. that's the thrust of thedo argument, and it's a difficult argument as i've learned at home. because people confuse outcomes
they like with whether the court ought to reach them. my own views are extremely liberal. as a political matter on abortion. i think that in the tragic choice between the rights of the woman and the rights of the fetus i would air on the side of the woman. i think that decision is best made by legislators. and you should within and the victory that roe created would better have been achieved in legislators than at the court. and i argue that for all the other cases as well. bush v gore was the worst decision because there was a case which the constitutional itself calls for resolution in congress. we can talk about any number of those cases, but that's the thrust of the book, and it's not merely a theoretical argument in favor of democracy, i have plenty of problems with democracy, look who's president.
look when he is in congress. but short of making me the monarch, which isn't going to happen. i'd rather entrust our fate to democracy. than nine unelected, unaccountable judges. and in the long-run i think we do better. i don't want an impotent supreme court. the court needs toth step up ona range of individual and structural rights which we can talk about. i think the court has two often inserted itself. that's bad for the court's reputation, it helps in feeble congress and state legislators, atit disorts a presidential election in 2016 when many voters on both sides of the aisle didn't like their candidate but sayshe they were voting for who they were voting because of who they thought the candidate with would put on the supreme court. that was borne out -- kavanaugh.
the confirmation circus with kavanaugh the stakes are so high, because they single-vote can mean so much, you wind up having a president in vetting and a senate in voting, producing the kind of result that we had. i want to give the floor to alan, i may not get it a back. but let me throw out the question for you that tries to illustrate my point. by a show of hands, tell me who thinks roe v. wade was a good exercise of the court's power. raise your hand. most of the room. not as many as in san francisco. who thinks bush v. gore was a good exercise of the court's power.an
my impossible task today -- all the hands come down -- is to try to convince you that's wrong and hypocritical. alan? >> alan: thank you so much. [applause] you didn't have to persuade me, in 2000 i wrote a book called "supreme injustice" that roe v. wade was the prescessor to bush v gore. and like you i support a woman's right to choose, the constitutional case for roe v. wade had not been made in a compelling way and the decision was largely political, and basically led to the supreme court's hyperactivism in bush v gore. i'm not heree to talk about your book. i think it's a great book, i did a blurb for it. i'm here to talk about my book. >> david: if you want to talk about me book. >> alan: i will during the question period. i want to tell you a story about
how my book got written. it's at story about hyperpartisanism in the united states. my book is titled "the case against impeaching trump" but that was not the original title. i w started to think about writg this book when we all knew that hillary clinton would be elected president. andhi whennt the republicans wee vowing on the day she was nawrgtd that they would move to impeach her.mb remember the cries lock her up lock her up. i started to draft and think about writing a book called the case against impeaching hillary clinton. my publisher later came up with a cover to make that point. this was the book the case against impeaching hillary clinton. when donald trump got elected president, and for somebody believes in the shoe on the other foot test, that you have to have neutral principles. i decided to take the research i
had done on impeaching hillary clinton and decided on donald trump, who i voted and campaigned against. had she been elected and had i written the case against impeaching hillary clinton they would have built a statue to me in martha's vineyard. but i wrote the exact same booko substituting the word trump for clinton, and now they don't want to even see me anywhere near martha's vineyard. >> david: have you thought of vacationing in texas? >> alan: i'm happy in florida, texas is divided. flor is also deeply divided. and to make it clear how upset people were about writing the book "the case against impeaching trump" i had my publisher come up within a third cover, a plain brown wrapper. [laughter] of the kind that we would use when we were reading dirty books in high school, that nobody would know. and so now, my friends on
martha's vineyard that want to read my book but don't want to be ostracized can put this cover onhi it. it is just an illustration of how divided our society has become.ho my case against impeaching trump is a case against overusing the power of impeachment. i'm a constitutionalist, i believe in reading the constitution, at least initially literally. i believe in a living constitution but i also believe the constitution means what it says and when the constitution says you cannot impeach except for treason, bribery, or other high crimes in and misdemeanors, it means that. it doesn't mean what maxine waters has said we can impeach anybody as long as there's a majority in the house of representatives. she wants to impeach not only donald trump but vice president pence. there are those to combine the
book together who want to impeach justice brett kavanaugh. for his testimony against the senate and what he did when he was 17 years old. i think impeachment is a last report. we've only had one proper impeachment. it wasas not andrew johnson. it was not bill clinton, who committed a low crime, not a high-crime. it was richard nixon who was properly subject to impeachment. because he committed clear obstruction of justice, he cestroyed evidence, he allegedly bribed witnesses, he paid hush money, he had his people lie to. government officials all of which are felonies and he would have and should have been s impeached. but i don't think anyone else who was now subject to impeachment fits the constitutional criteria.
now, maybe evidence will emerge and the mueller report, maybe evidence will emerge in the southern district investigation which i think iss a far-more serious risk to president trump than the mueller investigation because the mueller investigation he has constitutional defenses to obstruction of justice or slaberation or collusion with russia. but he would not have constitutional defense to anything he did prior to being elected president. his business dealings, they wouldn't constitute impeachable offenses, but they might constitute indictable offenses. that's the thesis of my book as you say they're both contrarian books. we're both inaccurately civil libertarians who are have different views about the main stream about results and we look at process rather than results and tell me what you think would happen -- let me pose a question to you to start our
conversation. what if the president trump were impeached, and what if he then was removed by the senate, unlikely,, but for marts that erwere not constitutionally authorized, and what if president trump said, it's interesting that the house impeached me, it's interesting there the senate convicted me tbut i'm not leaving. i'm not going anywhere because i believe they acted unconstitutionally. do you think the supreme court wouldd and should at that point decide that case to avoid a constitutional crisis of a president refusing to accept impeachment and removal by the house and the senate? e. >> david: i guess first i have a process question. i went to a different law school. >> alan: i am a socratic teacher, i will ask you questions so prepare your question. >> david: this is probably where alan and i differ. alan i think would argue the
court has a role in that question about what constitutes a high crime and misdemeanor. i do not i think this would be the collaborative question that the court should stay away from. it's up maxine waters not with standing it's up to congress to determine what the constitution means. do i think the court would intervene? i'm not sure. i along with most of the people i interviewed, back in 2000 when i was in legal fares in newsweek covering bush v gore thought the court would go anywhere nearer bush v. gore. nothing for the court to get involved in, and everything to stay aweum way from. we were wrong. my predictions were invariably wrong. don't buy the stocks i recommend. but so i could see how the court might intervene but i think it
would be terrifically wrong and it could be a high-point for the court in such a hypothetical to say not our jobs, we're staying away, and my question -- i would deny the premise if you had a president for example donald trump a who says they're impeaching me for something that's unimpeachable, i'm sticking around, i'm not sure such a president would abide by a supreme court ruling. and of course, the notion of not leaving office when you're supposed to. which would present a constitutional crisis, a real one. not like a lot of the fake constitutional crises that are alleged on, cable each night. suppose leaving aside impeachment what if a president after 4 or 8 years says i'm not leaving? and nothing to do with impeachment. so you could have a scenario
when a president doesn't leave town when hede or she is supposd to. i don't think it's ant' impeachment situation, but i think it would probably be left to the other branches to figure out. >> alan: my question is a somewhat different one. i agree with you that if congress said that obstruction of justice is a high crime and misdemeanor under the constitution, that the supreme court would leave that interpretation of high crimes and misdemeanors, up to congress. i was talking about a different situation the maxine waters or gerald ford situation where a president was impeached and removed for something that didn't even pretend to be treason, bribery or high crimes and misdemeanors, just maladministration of office. the framers objected a proposal by people in the constitutional convention calling for impeachment to be permissionable for maljustice of congress. t if the congress decided to ignore the constitution. i think the supreme court would
and should decide the constitutional issues and b ion think the president take trump, for example, who said look i'm not leaving because the congress acted unconstitutionally, and i, as the president have the same authority to interpret the p constitution's congress does. i think he would have support of his base. but if he then decided to defy a supreme court decision, i think he would lose the support of the american people, just like he would lose the support of the american people if he simply decided notf to leave office after his 8-year term. so i do think it's a question of whether the supreme court maintains its authority as the final arbiter. riremember we now have an acting attorney general of the united states. who dedoes not believe in marbury versus madison. i suspect you still believe in marbury versus madison.
>> david: marbury v madison established the court's ability isits power to strike down an at of congress's unconstitutional. >> alan: or an act of the president ultimately as well. >> david: such a power on the part of the justices is not said, not stated in the constitution. it is making the law. as many republicans these days accuse courts of doing. of courts, of course. judges make law. you have to when you're ininterpret ting vague and conflicting clauses. what the the republicans say it's making the law when they don't like what judges do. when they like what's being dony then it's interpreting the law. in the same way nobody claims to be a judicial activist. everybody's believes in judicial restraint until it's time to do something activist. ithe truth is everybody's
activist now. i interviewed a many judges on background. i would summarize to them they would ask for a 30-seconds on what the book was about, and their response was, i half agree with your position on the court. of course they would say that. they agree with this half of the decision and a liberal would agree with these, and a conservative would agree with the equal and opposite ones. in truth, the courts belief in its own supremacy on so many different issues on the expense of the other branches is astonishing. i would argue that the public, it's possible public support for such a president would dwindle after the court has ruled, but i'm hardly sure. it was not the case in public opinion polls for example in bush v. gore. let me ask you a question.
>> alan: sure. >> david: if i might. if thehe democrats took the presidency in 2020, just say, and -- [applause] >> alan: the president might be watching. >> david: he knows. he knows full well i -- the democrats take the presidency and the senate and the house. the democrats get their act together and get better at being bad. the democrats have never been very good at being bad, the republicans are very good at being bad. the democrats get their actpu together and say you know what we're going to pack the court. tdr tried it in 1937. r it was knocked down by both sides of the aisles. we live in different times. the democrats say we're going to add 2 seats to the court, we're going to have 11 justices andway going to take back the merrick garland, who was barack obama's
nominee, and we're going to undo what was wrought with kavanaugh and gorsuch. all it takes is an act by congress signed by the president to add seats to the court. doesn't take a constitutional amendment. legal, isn't it right? >> alan: i would defend the president's power to sign such a bill and congress's power to do it but i would strongly oppose it if i would have been alive during the 1930s when president roosevelt tried to back the court to try to make sure his new deal can be put in place. it would set a terrible precedent. >> david: is there an argument that to save the institution you have to burn it down first? >> alan: i think the it doesn't needed saving. the supreme court is operating. i've never been a complete spouterrer supporter of everything the supreme court does. a judicial conservative is
someone you writes an opinion over what you do agree with. the debate of whether it's an alive or dead constitution. i used to fight with my friend anton sceleah, he would talk about how the constitution was a dead constitution. my response is, your partly right. there are parts of the constitution that a are dead. the requirement that you be 35 to be president, is dead.if if you're 34 in 10 months you can't be president. and if you're 117 and senile you can be president. there is no prohibition of it. that's dead. on the other hand, how can you say that the part of the constitution that talks about equal protection or due process or cruel and unusual punishment doesn't require some interpretation, even justice scalia wrote a brilliant decision about whether or not the fourth amendment applies to gps's that are put on the bottom
of cars so you can track people. what he basically did in live and the constitution brought it alive and said our framers if they had known about gps probably would have said that it it's a violation of privacy without some warrant or at least some probable cause requirement. so i think everybody sees living parts of the constitution, and dead parts. the dead parts are easy. nobody disagrees about that.ar now whether the impeachment provision, thet provision that says high crimes and misdemeanors is living or dead, is a very difficult question. i think it's dead. i think the framers of the constitution didn't want impeachment to be done for reasons other than criminal conduct. nothing has changed. there are no gps's the very issues that madison and hamilton argued about are had issues we argued about today. i think that'say a dead part of the constitution and i don't think we should be able to be creative when we're accusing
people of serious crimes and removing from them office. criminal law should never be alive. criminal law should always be dead. let me finish you look at the words of the statute, and if they don't apply that's the end of the inquiry. check out whether there's a word collusion in the criminal statute. >> david: high crimes and misdemeanors is loafer to the vague phrases like due process of law and equal protection. if they wanted to give a laundry list of specific crimes they could have done so. they talked about it. >> alan: let me tell you a story about high crimes. it's in my book. the story about a man alexander hamilton. while he was secretary of the treasury had an affair with a woman and it turned out the womant was sent to him by her extortionist husband in order to seduce him to have the affair, and the man demanded extortion payments and he paid them. and the man said i need more
money or else i'll accuse you of taking the money to pay me out of the treasury. alexander hamilton decided to write an essay embarrassing his wife terribly, admitting the your fair, butte denying the money came for from the treasury, why did he do that? he understood the difference between a high crime and a low crime. . son truby admitted to that. he admitted to the extortion. that was a crime but he did not acknowledge that he committed aa high crime because he understood the difference between high crime and an ordinary crime. the framers understood that. >> we are getting a signal should allow questions. >> okay. >> anyone who wants those what questions i guess there's a microphone. i'm not sure i can answer your question about marbury. the argument about marbury
against madison has largely been settled but there are intelligent smart scholars who think that it was wrongly decided. the interesting thing now about our acting attorney general who i would describe as a political hack, not -- [applause] i haven't agree with all attorneys general in recent years but he does not have any of the last or credentials that others have. .. >> on that we can agree. >> okay. it's on.
david, i heard your interview on npr and i thought it was question is for you on your opinion on term limits for the supreme court and if so do you think there's something that citizens can do? >> term limits including justices was into the constitution probably made sense when the life expectancy was 65. now that it's 85 in my view it makes no sense to last five justices served an average of 30 years. that said, there is an active proposal before congress and in the academy for an 18 year single year term limit.
you are wrongng about one thing. >> you could retroactively applied to the justices that are now setting. there are no limits to what the constitution can do. >> fair enough. but the party in power will never agree. the notion that you are going to get bipartisan agreement to change things i think is unrealistic. what can you do, lobby representatives because the constitutional amendment in most cases begins with congress adopting such an amendment, but i think the more likely reform, i wouldn't college reform, it is the easiest way to apply pressure on the system. >> i think the senate should conform to nominees who were too young. the idea that we are now appointing fetuses to the supreme court in the hope that they would live 120 years is a distortion of the process and as
somebody that turned 80, wisdom -mes with age. the idea that the american bar association won't recommend or wouldn't recommend somebody over 60 is absurd. oliver wendell holmes when heou was 6-years-old some of the greatest justices went on in an advanced age there's nothing in the constitution about the young age limitation. there's a limitation on congress you have to be 25 or 30. but you can be 13 and be a justice of the supreme court. >> good morning.
this is for the professor. since the governor of michigan signed the legislation which says that it will not do business with entities that engage the people who boycotted a strategic partners what is the university's responsibility with regards to the students and professors in thes recent light. you have to write for advocating that is the first amendment right to think historically legislation passed always further than actual boycotts. there's all kinds of legislati legislation. from joining in the boycott of israel and so i think the michigan legislation as long as it doesn't ban advocacy it is perfectly constitutional, and i
think that michigan to current position disciplining the professor. not for what he thought or believedee or said before discriminating against a student based on the country at the students wanted to go to. imagine if the shoe were on the other foot. if it was a white racist professor that refused to recommend a black woman who wanted to go and spend a year in african country because he disagreed with the policies in the country. [applause] i have a comment and a question for alan. i would like to point out that collusion doesn't appear in the criminal code. from what i understand it would be prosecuted to commit treason.
>> that's impossible because it is the only crime defined in the constitution and extremely narrowly, even i think the worst enemies of donald trump would say they realize you cannot tharge the president with treason, conspiracy to commit treason or anything relating to treason. the problem with thee conspiracy to what? affect the election or something like that. they would have to make up a crime and i am against making of a crime whether they are against democrats or republicans. >> and my question is related to that. i would like to ask what your opinion is related to the relevancy of the living criminal code in light of when you brought up adult reuse t adultee illegal, and it does change we shouldn't be looking to the criminal law of the creative solutions.
refusing to apply the criminal law as it matters before the conduct was criminalized. >> good morning. i find you to be terribly persuasive. i was hoping to agree on a lot of different things but i just wanted to mention the shoe on the other foot i think that harry reid is the one that implemented the 50 vote rule that got rid of the super bejority and look at where we are today. i think that was a terrible decision. my question is that they phrasee to complete the as the high crimes and misdemeanors. you don't have to extend your judgment too far to realize the misdemeanors can include many of the activities trump has taken.
ruling backde years ago saying a president can'tit be prosecuted. the impeachment provisions seem to imply that. they don't say it but they say they can be prosecuted once he leaves office on the ones he is impeached and removed and then the negative to that would seem to be that they cannot be indicted and prosecuted while in office. my colleague used to take that position when clinton was the president and now he has evolved and changed his mind and believes a president can be indicted and prosecuted while in office. >> i changed my mind. the there's an indictmen indicte challenges and i can see that kind of case.
it seems to me that the question is a classicallyat political matter and i think that the attempt to move it into the judicial system is misplaced. >> why does the cream of the constitution say youn' cannot a president from office, only a president, unless the trial in the senate is presided over by the justice of the united states? that is the intent of the judicial elements to an otherwise political process butf chief justice presides. the. in the motion to dismiss onth te ground there is no stated in
teachable offense and the chief justice asked to judicial officer would have to resolve that issue with the caveat that my predictions are invariably wrong. i cannot imagine a chief justice with this chief justice going near that question. they had the greatest moment when they upheld the affordable care act. >> they had big problems with the statute and with its constitutionality. he did vote in conference at the gathering of the justices after all argument he did vote to strike down the statute on the commerce clause.
the commerce clause didn't make sense but he also in the best use of the word judicial politics nonpartisanship decided decided that the court was best left out of the maelstrom in 2012. the court struck down obamacare. the court would have been a hadl issue in the 2012 a presidential and i think roberts, whatever he thought. for the good of the institution it was better and i think it is possible and he has been railed
out by conservatives and republicans including in 2016. i would have assumed his view it would have been in two, four or six years. and i will still be chief justice. i'm 63-years-old i could be here for 20 years but it bothered roberts. i think it is possible that he is the swing vote on the court. even on the issues important to them on the racial preferences.
it is usually the person who is presiding over the senate. you could h have found easily somebody remember that for each you don't have to chief justice sitting only for the impeachment of a president i think that means something. for the good of my book at least to resolve this argument. >> i find your arguments compelling, but i found your example of trump moss leaving the presidency in any event chilling, and the fact that you probably couldn't say that even as ann example but any other president. but for this one, i could see it happening. there are those that would say he would never leave the presidency. >> he will lead at the end of the term but there is a fair
argument he wouldn't leave if he felt he was unconstitutional. i think al gore performed a tremendous service to the country when he conceded the election at a time when he didn't have o to. he could have fought on politicallye he decided the best interest of the country he would accept the supreme court's decision have you ever discussed this [inaudible] >> i have never -- not give legal advice. dealmaking endeavors in terms of advice was on television. i said to the president i will give you four pieces of advice. don't pardon, don't commute, don't tweet and don't testify.
and he hasn't followed very many of those pieces of advice except -- >> this can go into another civil war and i'm asking did yot you believe that it's possible? >> they are secure and this is a constitutional challenge not a crisis. i hate to agree on this note as we end that i do think that a lot of the chicken little sky is falling that you see on cable news these days is a bit much. this too shall pass. that is the perfect way to end the panel.