Napolitano says bringing up new charges would be 'mistrial' if impeachment were in criminal court

Napolitano says bringing up new charges would be 'mistrial' if impeachment were in criminal court
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Fox News analyst Andrew NapolitanoAndrew Peter NapolitanoAndrew Napolitano out at Fox News amid allegations of harassment Fox's Napolitano says grand jury erred in Taylor case: 'I would have indicted all three of them' Fox's Napolitano: Supreme Court confirmation hearings will be 'World War III of political battles' MORE argued Thursday it would be a "mistrial" for House managers to bring up crimes the president is not charged with in a criminal trial, though he acknowledged doing so in the impeachment trial is another matter.

Napolitano, a former judge and senior legal analyst for Fox News, made the remarks during an appearance on "Fox & Friends."

President TrumpDonald TrumpKinzinger says Trump 'winning' because so many Republicans 'have remained silent' Our remote warfare counterterrorism strategy is more risk than reward Far-right rally draws small crowd, large police presence at Capitol MORE's legal team made a similar argument on Wednesday after House impeachment manager Rep. Adam SchiffAdam Bennett SchiffOvernight Hillicon Valley — Hacking goes global Schiff calls on Amazon, Facebook to address spread of vaccine misinformation Spotlight turns to GOP's McCarthy in Jan. 6 probe MORE (D-Calif.) raised bribery charges that weren't mentioned in the two articles of impeachment passed by the House. 


Napolitano said it would be a mistrial if charges not made against a defendant in a criminal case were raised during a trial, but he said impeachment is another matter.

"This would not happen in front of a jury in a criminal case. It absolutely would be a mistrial if it were stated in front of a jury in a criminal case," he sad. "But this is a different kind of jury where they each get to accuse the other side of all kinds of things."

The former Harvard law professor, who was added to the president's legal team for the Senate trial after voicing opposition to Trump's impeachment primarily on Fox News, argued that if the conduct the president is accused of by Democrats as it pertains to his dealings with Ukraine is without a criminal element, it does not rise to the level of an impeachable offense. 

"That is clear from the language of the Constitution," Dershowitz, who is an opinion contributor for The Hill, argued on the Senate floor earlier this week. "You cannot turn conduct that is not impeachable into impeachable conduct simply by using words like 'quid pro quo' and 'personal benefit.' "  

Napolitano, along with other cable news legal analysts such as CNN's Jeffrey Toobin, have noted Dershowitz made an opposite argument during President Clinton's impeachment in 1998-1999. 

"That's obviously the opposite of what he said the last time around and reasonable lawyers can disagree," Napolitano said on the network Tuesday morning. 

Deputy White House counsel Patrick Philbin on Wednesday criticized Schiff for broaching bribery and extortion charges against the president without adding those charges to the final two articles delivered to the Senate earlier this month.

"If this were a criminal trial in an ordinary court and Mr. Schiff had done what he just did on the floor here, and start talking about crimes of bribery and extortion that were not in the indictment, it would’ve been an automatic mistrial," Philbin argued. "We’d all be done now, and we could go home. And Mr. Schiff knows that, because he’s a former prosecutor."

"It is not permissible for the House to come here, failing to have charged, failing to have put in the articles of impeachment any crime at all, and then to start arguing that," he continued.

"It’s totally impermissible. It’s a fundamental violation of due process," Philbin later added.

The back-and-forth came one day before a crucial decision is made on Friday of whether to bring in witnesses.

The trial could end as soon as Friday if additional witnesses are not heard from. 

“We’re going to get it done by Friday, hopefully,” Sen. Mike RoundsMike RoundsThe 19 GOP senators who voted for the T infrastructure bill Senate passes T bipartisan infrastructure bill in major victory for Biden Senate votes to end debate on T infrastructure bill MORE (R-S.D.) said following the meeting.

Sen. Mike BraunMichael BraunRepublicans unveil bill to ban federal funding of critical race theory Earmarks, the swamp's favorite tool, return to Washington Senate in talks to quickly pass infrastructure bill MORE (R-Ind.), emerging from the lunch, said, “I think I can say the mood is good.”