John Flannery
4 min readJan 20, 2020


Dershowitz is arguing to avoid witnesses. That’s his job. He’d like us to think, however, he’s some kind of high falutin oracle rather than as a hired gun. He is using his skills as a sophist to mislead his audience to be persuaded to do what neither the law or facts support. This is heavy lifting. And that’s why Dershowitz is out there pushing his Trump elixir.

On the talking heads this sunday, Jeffrey Toobin called out Dershowitz telling him — “you’re just a lawyer,” puncturing Dershowitz’ holier than thou gift to the nation that he’s affected as “scholar” on his break neck tour of the shows starting with MSNBC’s Ari Melber on Friday. Ari didn’t give Dershowitz an easy time. Unfortunately, some have.

What Alan is doing is making an argument against witnesses as Dershowitz insists there are no charges that he believes may be brought against Trump, so then, aha, you need no witnesses.

That’s been the McConnell strategy from the get go — let’s get past this idea of having witnesses at a trial. Let’s get this over fast. Let’s try this case so that we push coverage off the air waves. Let’s do this for so long that the Senators will beg to get this over. And let’s not tell the celebrants of this railroad what the rules are until Tuesday when we’ll vote on the rules.

Dershowitz argues the constitution is silent on witnesses, but the Constitution does talk about a trial in the case of impeachment.

And trials, well, duh, involve witnesses.

At least any we’ve ever heard of.

Dershowitz told Ari that he has been involved in few trials, mostly appeals, so maybe he doesn’t know trials involve witnesses.

Did he ever watch Perry Mason?

Just keep in mind, Dershowitz is working a case and striking a pose that he’s an impartial American just there to help us understand what’s going on.

In Federalist No 65, Hamilton, posing as Publius, said the purpose for impeachment is to police a President’s power — like withholding funding from Ukraine while exploiting the power to collect dirt on a presidential opponent.

The first part of Trump’s misconduct usurps the power of the Congress, interferes with the prerogative of a separate and independent branch, by holding back what Congress authorized to protect Ukraine from a warring neighbor, Russia.

The second part of Trump’s misconduct is a President feathering his own nest, taking action in his own personal interest, mis-applying his power to demand an investigation of a likely strong presidential contender, who very well might defeat Trump’s re-election.

There is a third part, when the nation found out what Trump was doing, Trump denied discovery by a co-equal branch, the congress, and hid the evidence of his misconduct, even as he was admitting it.

Since Friday, when it comes to any discussion of the material facts of Trump’s misconduct, Dershowitz has repeatedly disappeared in a cloud of dust, hear the William Tell overture, and distinctive Dershowitz voice, whispering, hidey hi ho silver in the background, rather than any explanation by Dershowitz about that inconvenient “factual” question.

Dershowitz ducks the facts as vigorously as he must to avoid witnesses.

Since Friday, Dershowitz had added a new arrow to his slip shod quiver of misleading arguments, retreating to a citation of the Justice who dissented in the Dred Scott decision and sat in the impeachment trial of President Johnson in 1868; Dershowitz claims him as authority for the proposition that you need a crime to impeach.

Weak tea. No one but this desperate sophist advocate seriously believes that.

In Johnson, the question, among others, was whether a “vacancy” act allowed Johnson to fire the Secretary of War who was passing information on to Radical Republicans in the Congress who were at odds with Johnson.

This statute was later found unconstitutional.

But it was an impeachment charge against Johnson. And a flimsy one indeed.

In fact and truth, there has never been an impeachment that required a crime.

The Judiciary Committee wrote an entire report on this issue saying much, including that no crime was required. No statutory crime.

Justice Story wrote a long commentary on the Constitution and it’s worth a read.

Necessarily, Justice Story did a review of the factors involving impeachment and the fact that, at the time of the Constitution, there was not then, nor since, any positive law, no listing, setting forth the impeachable offenses that could prompt removal, because, well, it kind of depends on the public official doing something that’s a betrayal of the public trust, like usurping the congress and doing a favor for himself as the Chief Executive, say to win a re-election.

Nor do you want to limit the necessary flexibility to remove a president who seeks to abuse the powers of public office. So Justice Story said we couldn’t limit ourselves to the common law that did exist at the time of the constitutional draft. It is in large part why Justice Story looked at the spectrum of reasons for impeachments in Great Britain.

Perhaps Dershowitz thinks his analysis is better than Justice Story’s tireless examination of the Constitution.

Let us not forget for an instance, Dershowitz made his way into the big show because his past argues he can persuade people of the most amazing propositions, that OJ was an innocent, and Epstein should be free sooner rather than later to enjoy his social pleasures.

Dershowitz’s charge as a lawyer is as the defender of Trump.

His marching orders are to kill this trial in the cradle without facts or witnesses.

We can’t have the nation hear the evidence of misconduct. So Trump’s team insists.

Thus, the nation watches the sophistry of the President’s advocates including Lawyer Dershowtiz attempt to facilitate the Republican conference’s barely concealed objective, to betray their collective oath to do impartial justice and allow the nation to be exposed to the clear and present danger presented by Trump.