Alan Dershowitz slammed present-day scholars for changing their legal opinions based on partisan politics and aversion to President Trump
Seriously. As part of the Senate impeachment trial, Dershowitz was called upon to answer a question about the legality of a quid pro quo -- that well-worn Latin phrase that means, literally, "this for that." House Democrats have impeached President Trump for allegedly seeking to exchange $391 million in Ukrainian military aid (this) for Ukraine announcing it would investigate supposed corruption by his political rival, former Vice President Joe Biden and his son (that).
To a normal person, a public official making the performance of his or her public duties contingent upon receiving some personal gain looks like solicitation of a bribe. ("I'll put out that fire, ma'am, if you give me title to that Corvette in the driveway.") But not Professor Dershowitz.
For him, the fact that Trump was seeking help for his re-election was not incriminating; it is exculpatory. "Every public official that I know believes that his election is in the public interest," Dershowitz said. "And mostly you're right. Your election is in the public interest. And if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment."
I did not go to Harvard Law, but I did go to the University of Texas School of Law, where I studied criminal law and constitutional law, but never dreamed a legendary legal mind would set them both ablaze on the Senate floor.
The Dershowitz Doctrine would make presidents immune from every criminal act, so long as they could plausibly claim they did it to boost their re-election effort. Campaign finance laws: out the window. Bribery statutes: gone. Extortion: no more. This is Donald Trump's fondest figurative dream: to be able to shoot someone on Fifth Avenue and get away with it.
Allow me to use a technical term, one that I'm pretty sure is in the Magna Carta: this is bonkers. It is ludicrous. Beyond that, it is frightening. The desire of politicians to win elections is overpowering, which is precisely why we need laws to rein them in.
Professor Dershowitz is a brilliant legal advocate. But in this instance, he is not channeling Blackstone or Harlan Stone or even The Rolling Stones. He is, like so many Trump supporters, saying the quiet part out loud. Mr. Trump, who so admires Russia's soon-to-be "Supreme Leader" Vladimir Putin, as well as other autocrats like Turkey's Erdogan, Egypt's Sisi, and North Korea's Kim Jong Un, appears to want to join them in the autocrats' club.
All he seeks is dictatorial power. That's all. By now we've come to expect that. But it is truly outrageous that the Republican Party, the party of limited government, seems so compliant in Trump's quest for unlimited power.
During the Constitutional Convention in Philadelphia, Benjamin Franklin was asked by a citizen what kind of government our new nation was to have. "A Republic," Franklin said, "if you can keep it."
Trump and his enablers now openly seek to put this President above the law, turning Franklin's admonition on its head: giving us a dictatorship, if we allow it.
Essentially, Dershowitz says CNN and MSNBC are claiming he argued a president can do anything as long as he believes it’s in the public interest (like a dictator).
But he said that is just not true and he explains his argument again below:
Taking advantage of the fact most of their viewers didn’t actually hear the senate Q and A, CNN, MSNBC and some other media willfully distorted my answers. More to Come— Alan Dershowitz (@AlanDersh) January 30, 2020
They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything. I said nothing like that, as anyone who actually heard what I said can attest.— Alan Dershowitz (@AlanDersh) January 30, 2020
What I said was that there are 3 broad categories of relevant motive:— Alan Dershowitz (@AlanDersh) January 30, 2020
1) pure national interest ( help the military)
2) pure corrupt motive ( get a kickback) And 3) mixed motive (help the national interest in a way that helps your reelection efforts )
(MTC)
I said that the 3rd was often the reality of politics and that helping one's own re-election efforts cannot — by itself— necessarily be deemed corrupt.— Alan Dershowitz (@AlanDersh) January 30, 2020
I gave as an example mixed motive President Lindon’s decision to send troops home from the battlefield to Indiana so that they would vote for his party. He genuinely believed that his party’s victory in Indiana was essential to the war effort, but it also helped him politically.— Alan Dershowitz (@AlanDersh) January 30, 2020
I gave another hypothetical. President Obama promised to bomb Syrian military targets if Assad used chemical weapons. He broke his promise. (MTC)— Alan Dershowitz (@AlanDersh) January 30, 2020
What it if turned out that a reason he broke his promise was that his political advisors warned him that bombing Syria would lose him votes among the hard left? (MTC)— Alan Dershowitz (@AlanDersh) January 30, 2020
My point is that these are complex issues and that the Framers did not intend impeachment for mixed motive decisions that contain an element of personal partisan benefit. (MTC)— Alan Dershowitz (@AlanDersh) January 30, 2020
Anyone watching my answer would know that it was in response to the manager’s claim that any electoral benefit would constitute an impeachable quid pro quo. (MTC)— Alan Dershowitz (@AlanDersh) January 30, 2020
I pointed out how open ended that argument is because politicians honestly believe that their reelection helps the national interest. (MTC)— Alan Dershowitz (@AlanDersh) January 30, 2020
I did not say or imply that a candidate could do anything to reassure his reelection, only that seeking help in an election is not necessarily corrupt, citing the Lincoln and Obama examples. Critics have an obligation to respond to what I said, not to create straw men to attack.— Alan Dershowitz (@AlanDersh) January 30, 2020
Lew Olowski: Why Trump impeachment attorney Dershowitz is right that re-election serves the public interest
ReplyDeleteA politician’s election represents the public interest for one simple reason: the public elected him.
“If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” said Alan Dershowitz, a Harvard law professor and one of the attorneys representing President Trump at his Senate impeachment trial.
Prof. Dershowitz’s comments triggered instant criticism. But Dershowitz’s critics merely revealed their own ignorance about the law, the Constitution, and democracy itself.
“This is what you hear from Stalin,” said CNN contributor Joe Lockhart, who served as White House press secretary under President Bill Clinton. “This is what you hear from Mussolini, what you hear from authoritarians, from Hitler, from all the authoritarian people who rationalized, in some cases genocide, based what was in the public interest.”
Stalin and Hitler did not believe elections serve the public interest. They murdered their political opponents. Literally—not metaphorically in landslide elections. And genocide—unlike the impeachment articles against President Trump—is a crime.
Criminal behavior is not in the public interest. The public criminalizes it. For example, Joe Lockhart’s former boss sexually exploited a 22-year old intern inside the Oval Office. Then he lied about it under oath, committing perjury: a felony crime punishable with years in prison. Consequently, he was impeached. But even under those extreme circumstances, the Senate did not expel President Bill Clinton from the White House.
Perjury, like murder, is a crime of moral turpitude. Criminal statutes generally represent the public interest because these statutes are drafted by legislators whom the public elected. The President, likewise, is elected by the public to implement such legislation and fulfill other executive functions.
Members of Congress and the president each represent their respective voters. And, in a democracy, voters are the ultimate deciders of the public interest. A politician who faithfully serves voters’ interests—and wins their election—is serving the public interest.
The limit to this principle is found in criminal statutes and the Constitution. That has been Prof. Dershowitz’s argument all along. Prof. Dershowitz has repeatedly emphasized that “abuse of power” is an invalid impeachment article specifically because it is an unlimited accusation. The Constitution’s minimum standards for impeaching a president require “high crimes and misdemeanors” such as treason and bribery: not merely the abuse of power.
But neither of the two articles of impeachment against President Trump raises any such criminal accusation. Thus, according to Prof. Dershowitz, these articles of impeachment are constitutionally invalid. If legislators want to impeach a president while operating within the boundaries of statutory and Constitutional law, then they must allege and prove criminal misconduct at the level of high crimes and misdemeanors.
Instead, the House of Representatives accused President Trump of “abuse of power” because “to obtain an improper personal political benefit” he ignored “national security and other vital national interests.”
ReplyDeleteBut by this standard, every President, whether Republican or Democrat, is impeachable. Abuse of power is a cliché accusation that politicians routinely toss at each other.
Here, the alleged abuse of power is that President Trump asked Ukrainian President Volodymyr Zelensky to investigate corruption and election meddling as a quid pro quo for timely receiving certain military assistance from the U.S. government. That is why Sen. Ted Cruz, R-Texas, asked Prof. Dershowitz, “As a matter of law, does it matter if there was a quid pro quo?”
Of course, it is self-evidently in the public interest for voters to know about corruption and election meddling. But the “personal political benefit” to President Trump under this quid pro quo is that it would reduce voters’ support for Democrats if voters saw that Ukraine meddled in the U.S. presidential election to help Democratic candidate Hillary Clinton, and also if voters saw that Vice President Joe Biden enjoyed a conflict of interest when his son, Hunter Biden, was paid a fortune to sit on the board of a politically-connected Ukrainian energy company while Vice President Biden oversaw Ukraine policy.
Whether there was a quid pro quo or not, elections can remedy or ratify such alleged abuses of power. The decision belongs to voters: not to legislative factions and certainly not to unelected bureaucrats.
To be sure, voters elected both the President and the legislative faction that is trying to remove him.
That is why fidelity to the law matters. The law of high crimes and misdemeanors is the constitutional tiebreaker that resolves this impasse between the duly-elected House of Representatives and the duly-elected President.
And the 2020 election is the tiebreaker that will resolve whether the President and his opponents each remain in office for the following term.
Trump lawyer Dershowitz argues president can't be impeached for an act he thinks will help his re-election
ReplyDeleteAttorney Alan Dershowitz, a member of President Donald Trump's defense team, alarmed Democrats and many legal scholars with his argument in the first day of questions and answers in the Senate impeachment trial that presidents cannot be removed from office for an action they believe could help get them re-elected.
In response to a question from Sen. Ted Cruz, R-Texas, about whether it mattered if Trump engaged in a "quid pro quo," Dershowitz said that motive was what mattered and that if an act was in the public interest it was not impeachable. And he said it was reasonable for a public official to equate what is in their own political interest with the public good.
"Every public official that I know believes that his election is in the public interest," he said. "And if a president does something, which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment."
Dershowitz said a quid pro quo that involved an illegal act, or was done for personal financial gain, would be impeachable, however.
Amid a flood of criticism on social media and cable news, the high-profile attorney and law professor said his answer was being "willfully distorted."
"They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything. I said nothing like that, as anyone who actually heard what I said can attest," he said in a tweet.
Trump is facing two articles of impeachment, one for abuse of power and one for obstruction of Congress, stemming for allegations he leveraged military aid to Ukraine in a "quid pro quo" – a Latin phrase for a deal in which something is given and received –with Ukraine for assistance with politically motivated investigations.
Dershowitz went on to say it was "dangerous" to base an impeachment on assumptions about what a president was thinking when he or she made a controversial decision because "everybody has mixed motives."
"A constitutional impeachment based on mixed motives would permit almost any president to be impeached," he argued. "How many presidents have made foreign policy decisions after checking with their political advisers and their pollsters?"
Lead House impeachment manager Rep. Adam Schiff, D-Calif., said it was a "very odd argument for a criminal defense lawyer to make" because motive plays a role in almost every criminal case.
Schiff said Dershowitz's logic would give a president "carte blanche" to cheat in an election.
"All quid pros are not the same. Some are legitimate and some are corrupt. And you don't need to be a mind reader to figure out which is which," Schiff said.
On Twitter, Harvard Law professor Laurence Tribe, a longtime critic of both Trump and Dershowitz, compared the argument to French King Louis XIV's declaration, "L'état, c'est moi," meaning, "I am the state."
"Accepting this argument would put us on a short path toward dictatorship, benevolent or otherwise. It’s incompatible with the government of, by, and for the people. It’s government by egomania," Tribe said.
University of Michigan law professor Barbara McQuade called Dershowitz's logic "absurd" and said, "If the Senate is to maintain any semblance of a check on presidential abuse, surely it must reject this argument."
ReplyDeleteFormer White House counsel John Dean said that by Dershowitz's logic former President Richard Nixon would not have been subject to impeachment for the Watergate break-in. But Dershowitz, who has argued impeachment requires a criminal act, did say "the only thing that would make a quid pro quo unlawful is if the quo were, in some way, illegal."
"Alan Dershowitz unimpeached Richard Nixon today. All Nixon was doing was obstructing justice and abusing power because he thought he was the best person for the USA to be POTUS," Dean said in a tweet.
Hillary Clinton, the 2016 Democratic presidential nominee, also invoked Nixon in a tweet criticizing Dershowitz.
"Richard Nixon once made this argument: 'When the president does it, that means that it is not illegal.' He was forced to resign in disgrace. In America, no one is above the law," she said.
Sen. Tammy Duckworth, D-Ill., told MSNBC Dershowitz's claim "sounds like something coming out of North Korea, not Pennsylvania Avenue."
"Dear @CongressEthics: Can I have my staff pressure a foreign government to help my re-election campaign because it’s in the public interest that I get re-elected? Just kidding," quipped Rep, Ted Lieu, D-Calif. "Unlike @realDonaldTrump & crazy @AlanDersh, I follow federal law."
Rep. Andy Biggs, R-Ariz., defended Dershowitz and said the "the left," and some members of the news media, "blatantly misconstrue" his argument.
"He's never argued that the POTUS has absolute immunity," Biggs said in a tweet. "He's challenging the amorphous charge of Abuse of Power. Huge difference."
The second of the two days scheduled for questions and answers in the Senate impeachment trial opens Thursday afternoon.