Alan Dershowitz does not appear in these excerpts as a guest of The Bob Zadek Show. He enters the program as a name invoked by others — by Gene Healy in an episode on administrative law and impeachment, by John Rothmann in an episode on the Senate trial of Donald Trump, and by Bob Zadek and Steven B. Smith in a conversation about patriotism in the academy. What the excerpts establish is therefore not a portrait of Dershowitz but a record of how his positions and his public standing were used as reference points in arguments conducted by other people.
Impeachment and the meaning of “high crimes and misdemeanors”
The most substantive treatment concerns impeachment. In the 2014 episode with Philip Hamburger on administrative law, Bob Zadek opened a segment on whether impeachment should be understood as a political or a criminal process, asking what frame of mind should govern it. Gene Healy answered that impeachment is part legal and part political. The legal part, he said, arises because the Constitution sets out in Article II, Section 4 the standard of treason, bribery, or other high crimes and misdemeanors, so that a theory of what that phrase means is required. He added that even if the Supreme Court is never going to rule on whether something was a high crime and misdemeanor, it is still important to try to figure out what that means. It was at this point that Healy named Dershowitz, bracketing him with President Trump: “despite what President Trump and Alan Dershowitz seem to think,” the Court’s abstention does not remove the need for a theory of the phrase The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
Healy went on to distinguish the legal question from the political one. The legal part can tell you what is an impeachable offense — he said obstruction of justice would qualify, noting that Richard Nixon had articles of impeachment about obstruction of justice and was driven from office, and that Bill Clinton was impeached for obstruction of justice — but it does not answer whether removal is necessary, prudent, or a good idea. In the Clinton case, the Senate decided it was not. He characterized impeachment as a mixed operation of law and politics, and one thing he said it is not: a criminal process. It does not require a crime, and crimes are neither necessary nor sufficient to make out an impeachable offense The New Royal Prerogative: Philip Hamburger on Administrative Law (2014).
The same exchange was rebroadcast in the 2019 episode “Which Impeachment Movie Are You Watching?”, where Zadek’s framing and Healy’s answer appear again in nearly identical form, including the reference to what President Trump and Alan Dershowitz seem to think and the same account of Article II, Section 4, the Nixon and Clinton precedents, and the conclusion that impeachment is not a criminal law analysis Which Impeachment Movie Are You Watching? (2019).
Rothmann on the argument Dershowitz would make
The 2020 episode with John Rothmann turns from the general theory to the specific Senate proceeding then underway. Zadek posed the question whether it is essential that Trump committed a crime violating federal or state criminal code. Rothmann answered that it is of course not, invoking Gerald Ford, who as House Minority Leader, asked about the impeachment of Justice William O. Douglas, said impeachment is whatever the House of Representatives says it is. Rothmann’s formulation was that you can impeach someone if you have the votes and convict someone in the Senate if you have the votes, regardless of the merits. He offered Andrew Johnson as the best example, noting that the charges were fundamentally based on the Tenure of Office Act, passed by Congress in order to get him, and that Johnson was saved by one vote — the vote of Edmund Ross of Kansas, an episode treated in John F. Kennedy’s Profiles of Courage. Rothmann concluded that impeachment is political in every sense of the word, and that while he believed Trump abused his power and showed contempt of Congress, it only becomes a removable-from-office crime if the senators vote that way Withholding Judgment on Impeachment with John Rothmann (2020).
It is in this context that Rothmann described the argument Dershowitz was scheduled to make. He said the argument Dershowitz would make the next day in the United States Senate is that — and Rothmann was explicit that Dershowitz does not say whether or not he considers the action of the president a crime — it simply does not rise to the level for which the president should be removed from office. Rothmann returned to the point later in the episode, saying that this becomes the next issue and that this is what he thought Dershowitz would argue the following day Withholding Judgment on Impeachment with John Rothmann (2020).
Rothmann also placed Dershowitz’s role in the defense team in an institutional frame. Asked by Zadek whether the Senate proceeding is better analogized to a trial or an appeal, Rothmann said Zadek’s framing was right on, and observed that one of the reasons Dershowitz is involved is because he does not try cases — he is an appellate lawyer — and that this was one of the reasons the president wanted him on the team. Rothmann then set out the theoretical structure: the House acts as a grand jury, puts together the indictment, and forwards it to the Senate, which conducts a trial with witnesses and evidence. What made the Senate proceeding not a trial, in his account, was that Republicans had determined they did not want witnesses or documentary evidence, saying the House had built its case and no new evidence would be allowed Withholding Judgment on Impeachment with John Rothmann (2020).
Dershowitz as a campus case
The 2021 episode with Steven B. Smith, on Reclaiming Patriotism in the Age of Extremes, uses Dershowitz for an entirely different purpose. Zadek, introducing the question of what prompted Smith to write the book, observed that in the Ivy League and in institutions of higher education around the country, patriotism is not a position that gets you invited to every important dinner party in town, and said he thought Alan Dershowitz complained how he became a pariah over at Harvard when he became somewhat identified with Donald Trump. Smith, who corrected Zadek’s description of his own department — he said he is in the Yale Political Science department rather than philosophy — took up the comparison, saying that as far as eating alone goes he probably had not done quite as much as Alan Dershowitz to make himself a pariah on his own campus, and describing the look of barely repressed horror on colleagues’ faces when he told them he was writing a book defending patriotism Steven B. Smith on Reclaiming Patriotism (2021).
Across episodes: impeachment theory, 2014 to 2020
The impeachment material shows a shift in what Dershowitz is being cited for rather than a development in his argument. In the 2014 episode, Healy names Dershowitz only to reject a view attributed to him and to President Trump about the Supreme Court and the meaning of high crimes and misdemeanors, and then supplies his own account of impeachment as a mix of law and politics that is not a criminal process The New Royal Prerogative: Philip Hamburger on Administrative Law (2014). The 2019 rebroadcast repeats that treatment without alteration Which Impeachment Movie Are You Watching? (2019). By January 2020, Rothmann is no longer arguing against a Dershowitz position in the abstract; he is previewing the argument Dershowitz will make on the Senate floor, and he takes care to separate Dershowitz’s claim — that the conduct does not rise to the level for which the president should be removed — from any claim about whether a crime was committed Withholding Judgment on Impeachment with John Rothmann (2020). The through-line the excerpts support is narrow: in both periods Dershowitz is associated with the proposition that a crime is not required for impeachment, and in both periods the speakers who invoke him treat that proposition as one they largely accept while disputing what follows from it. The 2021 episode does not touch impeachment at all and uses Dershowitz only as an example of a Harvard figure penalized for his political associations Steven B. Smith on Reclaiming Patriotism (2021).
What the sources do not cover
The excerpts contain no interview with Dershowitz, no extended statement of his own views in his own words, and no discussion of his legal career, his writings, or his clients beyond the single characterization of him as an appellate lawyer. They do not state his title, his field, or his relationship to Harvard beyond Zadek’s reference to him as being “over at Harvard.” The Rothmann excerpt breaks off mid-sentence while describing what Dershowitz does and does not say about the president’s action, so the full shape of the argument as Rothmann understood it is not available here. Nothing in these sources establishes what the Senate ultimately did with the argument, or how Dershowitz responded to the characterizations Healy and Rothmann gave of his position.
Episodes
1 appearance, 2023–2023.
- Confronting the ‘Cancelists’ with Alan Dershowitz (2023) — Alan Dershowitz on Cancel Culture and Neutral Principles. Civil liberties attorney and Harvard Law professor