Impeachment Trial Analysis, Day 8: Question Time

As President Donald Trump’s impeachment trial unfolds, Courthouse News will be reaching out at the close of each day to prominent attorneys, scholars and other experts in the legal community for analysis on the historic proceedings. Joining us for the first day of the Q&A session is Jennifer Rodgers, a former federal prosecutor from the Southern District of New York.

WASHINGTON (CN) – The U.S. senators have questions. Legal experts have answers.

For attorney Jennifer Rodgers, a former federal prosecutor from the Southern District of New York, one of the “WTF” moments of the day came from President Trump’s favorite legal-theory flamethrower: Harvard law professor Alan Dershowitz.

The famed defense attorney for O.J. Simpson and Jeffrey Epstein, Dershowitz stunned senators and certain viewers alike by arguing that using the power of government to get a leg up on an election would not be impeachable because remaining in office is in the public interest.

Rodgers sounded off on what happened in and out of trial in the interview below, which has been edited for concision and clarity.

What were the big developments in terms of today in the trial?

Well, I think there have been a few things, one of them, of course, the continuing development of the John Bolton story and what's happening with him and the vote to have him testify or not. So that's kind of been both kind of happening on the side of all of this, but also is using some of the questions as well. So, you know, that's a development that keeps moving, right, a moving target.

We'll have to see what comes down from this. The senators are obviously very interested in that. So we’ll see how that plays out. There was a big you know kind of WTF moment, I guess, or ‘What the heck?’ moment for family shows, when Alan Dershowitz actually said that a president purposefully manipulating an election so that he wins is not impeachable if he thinks it's in the national interest.

And then he just was up a couple of minutes ago trying to explain that his issue is not that he thinks of crime is unimpeachable, per se. It's that he thinks an abuse of power is unimpeachable, which doesn't really help matters. I mean it's just such a nonsensical argument. It's contrary to what every constitutional scholar and every historian I've seen ring in on the question believes, including the experts who testified in front of the House—including the Republicans' guy Jonathan Turley.

So, he's a lonely scholar there on that point and it's just not credible. So, I'm glad he actually went even further with it today because from yesterday so many senators really seemed to be latching on to that. 'Well, oh, Alan Dershowitz! He's at Harvard. I mean, how can we contradict him on this point of law. We're done here!'

Did you notice [hardball questions] coming from some of the reputed moderates in the Republican Party, and what do the questions themselves signal to you?

Rodgers: There was a question that came from Collins and Murkowski that also pressed the president's lawyers on a factual point like that. I think it's good. It shows that one of two things is happening: They’re either genuinely pressing them to try to get some answers on things that are important to them as they sort through all of this, and they're kind of genuinely on the fence and don't want to just be seen as the path to, ‘I just ask a softball and let the president's lawyers repeat themselves.’ Or they want to appear that way: I mean, Susan Collins may be in trouble in the fall. She could, of course, be just trying to appease her fairly moderate state.

Lev Parnas and his attorney Joseph Bondy traveled from New York to the Capitol to look at proceedings and answer reporters’ questions. It was a pretty extraordinary thing for a pretrial criminal defendant. What do you think that lent to today's proceedings and how they're covered?

Rodgers: It’s so interesting what he’s doing, because at the end of the day, I assume what he wants is a cooperation agreement with the Southern District of New York, and it just doesn't seem to me like this this circus, song, and dance thing that he has been doing is going to get him what he wants, if that’s what he wants.

Maybe his calculation is we can't get that agreement. If he has met with prosecutors, or his attorneys have met with prosecutors, and they're not, you know, they don't believe him. Or if he, as I have heard, refuses to give them all of the information that they seek about what he and others, including Giuliani, were actually doing over there in Ukraine and why they were so intense to prevail upon removing Yovanovitch and some of the other anti-corruption folks over there, then he will not get that cooperation agreement.

Maybe he's decided that his second-best option is to just try to be this hero and, you know, try to stick it to the president, who has stuck it to him. So, I don't know. It's very strange… It's hard know what to make of it, except to say that, from my perspective, what I know being a prosecutor, my former colleagues are not going to be impressed by this song and dance.

[Editor's Note: Under indictment for campaign-finance violations, Parnas is awaiting trial in the Southern District of New York, where Rodgers served as a prosecutor for more than a decade.]

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit