The newest member of President Trump’s impeachment defense team predicted earlier this week that former national security adviser John Bolton won’t be allowed to testify in the upcoming Senate trial but that the anonymous whistleblower could.
The 81-year-old Harvard law professor emeritus sketched out a possible impeachment strategy in a conversation with the Washington Examiner earlier this week, before he joined Trump’s defense effort. Dershowitz, the author of The Case Against Impeaching Trump, became the newest member of Trump’s legal team along with former independent counsels Ken Starr and Robert Ray on Friday, joining White House counsel Pat Cipollone and Trump lawyer Jay Sekulow, whom Dershowitz heaped praise on earlier in the week.
Dershowitz told the Washington Examiner, “The preferred option is for the Senate preliminarily to ask the question whether the articles of impeachment allege an impeachable offense” and compared that to a motion to dismiss in a criminal case.
The two articles of impeachment passed by the House charge the president with soliciting Ukraine’s help to interfere in the 2020 election while withholding military aid and with obstructing the congressional investigation.
“I believe very strongly that the two articles of impeachment do not charge constitutionally permissible impeachable offenses,” Dershowitz said, arguing dismissing the case would “eliminate the dangerous precedent of allowing presidents to be impeached for nonimpeachable offenses.”
But, if that doesn’t happen and new witnesses are sought after each side presents its arguments, Dershowitz said the call could backfire on Democrats.
Dershowitz said Republicans would fare much better than Democrats at getting the witnesses they might want because Trump could assert executive privilege to block Bolton’s testimony, even if Senate Democrats secure the 51 votes needed to subpoena witnesses.
“If that happens and, for example, the Democrats call John Bolton, and John Bolton runs over to the Capitol enthusiastic — ‘I want to testify! It’s my dream! Please let me testify!’ — he’s still not going to be able to testify because the president will invoke executive privilege, and, I think, on that issue, he will win,” Dershowitz said. “What could be more privileged than conversations between the national security adviser and the president in the Oval Office?”
While “no one can stop Bolton from holding a press conference,” he said, he predicted the courts would side with Trump’s assertion of executive privilege.
“The Republicans would be more likely to prevail on executive privilege than the Democrats would,” he said. “For example, if Hunter Biden were called, there’d be no privilege there. He would have to testify. Even Joe Biden might have to testify, if it were about his conversations in the Ukraine that he talked about and described — so he would’ve waived any privilege. So, if there were a trial, the Republicans would end up having more important witnesses testify than the Democrats would.”
Dershowitz said any hypothetical White House effort to call the anonymous Ukraine whistleblower whose complaint sparked the Democrat-led impeachment process would be difficult.
“I think the courts might very well side with the whistleblower under the statute and say his identity could not be revealed. But maybe he’d have to testify without his identity being revealed,” said Dershowitz. “There are ways of calling the whistleblower without his identity being exposed.”
The defense lawyer, who has represented celebrity clients including Mike Tyson, Patty Hearst, and O.J. Simpson, is sure to be a controversial choice, especially thanks to his longtime friendship with and representation of deceased convicted sex offender Jeffrey Epstein. Dershowitz helped secure a sweetheart deal for the jet-setting financier in 2008 and visited Epstein’s mansions in New York, Palm Beach, and stayed on his island in the Caribbean, and allegedly had sex with Epstein victim Virginia Roberts Giuffre while she was underage. Dershowitz has denied Giuffre’s accusation, and the two have sued each other.
“I did absolutely nothing wrong,” Dershowitz previously told the Washington Examiner. “I was his lawyer and did nothing wrong in connection with Epstein.”
