On Sunday, February 2, 2020, Alan Dershowitz, an eighty-one year old democrat and defense attorney, who has defended such infamous persons as Jeffrey Epstein and O. J. Simpson, appeared before fox news anchor Chris Wallace to straighten out the constitutional argument which Dershowitz presented in the Senate Chamber on behalf of President Donald Trump. Wallace, known for his tough questions and persistence, attempted to hammer Dershowitz on several questions. First, Wallace asked Dershowitz whether there was a legal reason for not calling evidence when there is substantial new evidence. Dershowitz retorts that a motion to dismiss is acceptable if a person isn’t indicted for a crime. Further, a prosecutor cannot introduce evidence without a criminal indictment.
Second, Wallace notes the controversy created by Dershowitz’s statement before the Senate: “If the president does something which he believes will help him get re-elected (pause) in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” Dershowitz’s position is that to remove a president from office the offence has to be criminal-like behavior, akin to treason or bribery. This is how he interprets the “treason, bribery, or other high crimes and misdemeanors” in section four, article two of the constitution. Quid pro quo matters only if the president did something illegal or wrong.
Dershowitz articulates the conditions under which a president would be wrong for doing what resident Trump did if not impeached. If a president linked aid to an ally to a personal benefit that was not in a public interest, then that would be a reason for him not to vote for that individual in a presidential election. Dershowitz claimed that investigating corruption is in the public’s interest. Thus, he doesn’t think that President Donald Trump has wrong conduct that qualifies as impeachable. He thinks that it is up to the voters to decide the next President, not the Senate. Put another way, if a president behaves in a way consistent with the law and has mixed motives for his behavior, then the fact that their motives were mixed doesn’t make the act undertaken impeachable. They must commit a crime or have crime-like behavior.
How has his view been misquoted?
Just to add some context. Senator Ted Cruise, a republican senator from Texas, sent a question to the Chief Justice, asking “As a matter of law, does it matter if there was a quid pro quo. Is it true that quid pro quos are often used in foreign policy.”
Dershowitz’s argument goes as follows:
1) To impeach a president for a quid pro quo, one would need to establish a singularly corrupt motive. For example, a singularly corrupt motive would be to bribe the president of a foreign nation in return for money or a building with their name on it. Dershowitz identifies three possible motives.
There is the national (public) interest, the electoral interest, and the personal pecuniary interest. Democrats, admittedly, didn’t accuse the president of pecuniary motives. This leaves the national and electoral interest. All politicians act in accordance with their electoral interest. The same believe that their election is in the public interest. If the president acted to improve their electoral interest and believed that this was in the public interest but didn’t act with a pecuniary motive, then this wouldn’t be impeachable.
2) Mixed motives cannot be a singularly corrupt motive.
If the president’s policies were in the public interest and he held the belief that in acting in the public interest, say to investigate corruption in a country where American citizens gave hundreds of millions of dollars, he would also improve his chances in an upcoming election, but didn’t profit personally in terms of payment, then the quid pro quo isn’t impeachable. ‘Quid pro quo’ means ‘this for that’ or ‘something for something.’
Put simply–
- Either a president’s quid pro quo to a foreign nation is impeachable or it isn’t
- If it is impeachable, then the ‘quo’ is something illegal (“treason, bribery, or other high crimes and misdeamors,” Section 4, Article 2, US Constitution)
- President Trump didn’t ask for something illegal.
- If the quid pro quo is impeachable, then one must prove a singularly corrupt intention.
Dershowitz’s arguments raises significant questions:
First, did the Democratic house managers prove that the President had committed a crime? No, claims Dershowitz, the president wasn’t charged with a crime–he was charged with abuse of power and obstruction of Congress. Further, he reasoned in an interview with MSNBC’s Chief Legal Correspondent, Ari Melber, if they had evidence of a crime, then they would have charged him with one, but since they couldn’t prove, treason, bribery, or other high crimes and misdemeanors, they did not charge him with these.
Second, they cannot prove singular, corrupt intent since Ukraine was known for having corruption, and this was the primary target of the “looking into” that President Trump requested. Since removing corruption is within the public interest, then the President cannot be described or accused of having a singularly corrupt motive.
After Dershowitz’s response to the question, Representative Adam Shift said the following:
“There are two arguments that…(uuuggh)…Professor Dershowitz makes–one that is, I have’t to say, a very odd argument for a criminal defense lawyer to make…and that is, it is highly unusual to have a discussion and trial about the defendant’s state of mind, intent, or mens rea.”
Shift adds,
“He also makes an argument that all quid pro quos are the same and all are perfectly copacetic.” He continues. “So now the argument shifts to all quid pro quos are just fine they’re all the same as well.” Shift goes on to use what is typically called in informal logic a straw man argument. This is when an interlocutor or debater attempts to refute an argument that they have mischaracterized. But this just is Dershowitz’s contention; namely, the Democratic house managers have misrepresented his view.
Dershowitz wrote an opinion piece for the The Hill claiming “Media pundits and partisan politicians have been deliberately distorting the argument I made in the Senate impeachment trial of President Trump this week.” Dershowitz claims that he
“pointed out how open ended that argument is since most politicians truly believe their reelections help the national interest. I never said or implied that any candidate could do anything to reassure his or her reelection, only that seeking help is not necessarily corrupt, citing the examples of Lincoln and Obama. My critics now have an obligation to respond to what I said, not create straw men to attack.”
Thus, if we want to get Dershowitz right, we must understand him to be saying that acting in your own interest while also acting in the public interest cannot be an impeachable offense. All politicians do this. All politicians act in ways that will improve their chances for reelection. If the president is corrupt for this behavior, then all politicians are as well. Since they are not corrupt for acting in favor of their own reelection, then neither is the president.