Impeachment Blog - Alan Dershowitz's National Interest Defense
During Wednesday's impeachment proceedings, Donald Trumps' defense lawyer Alan Dershowitz stirred up controversy with some unusually brazen argumentation. In a short video clip, which went viral online, Dershowitz appears to contend that the President cannot be impeached for using their office to advance their own reelection effort, if he deems his reelection to be good for the country: “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 was criticized by many for these remarks, which appear to excuse almost any hypothetical Presidential transgression. “Yesterday the president’s defenders argued that a president of the United States could do essentially whatever he wanted to secure his re-election, no matter how corrupt, if he believed his re-election was in the national interest. That is the most absurdly dangerous argument that could have been made,” said Adam Schiff, the Democrats' lead impeachment manager.
Dershowitz later defended himself, claiming that his words were taken out of context. "I never said a President could do anything to get reelected," he said. Dershowitz explained that there are three categories of Presidential decisions: decisions purely motivated by national interest, decisions that are purely corrupt, and decisions that benefit both the Nation and the President. He points to his remarks on the Senate floor: that President Abraham Lincoln brought troops home so that they would vote for him during the Civil War. This, in Dershowitz's view, is a perfect example of a "mixed motive"; Abraham Lincoln "genuinely believed" that his own reelection would help the war effort, so the decision was not corrupt and therefore not impeachable. Only "purely corrupt" actions warrant removal from office.
To me, Dershowitz's clarification only makes his argument more brazenly wrong. In reality, there is no externally verifiable distinction between "purely corrupt" and "mixed" motives, as any President caught abusing their power would invariably argue that their actions were in the national interest. Notice that Dershowitz makes no attempt to create a standard for what is and isn't in the Nation's interest; only the President has the ability and authority to make such a determination. If Lincoln believes his reelection will help the war effort and the Nation by extension, he is allowed to move soldiers in an otherwise inefficient manner; if Trump believes the same, he is allowed to coerce a foreign leader into investigating his most prominent political opponent. If a meaningless and unfalsifiable citation of national interest is the only requirement for a President's motives to be "mixed," if there are no universal standards for the acceptable means of furthering the interests of the public, the President is indeed the judge and jury of their own alleged wrongdoing.
The only limitation Trump's defense team has established is that the President cannot commit a Federal crime (this seems to fly in the face of the impeachment of Bill Clinton, but that is beside the point). But there are simply not enough Federal laws on the books to prevent every possible Presidential misdeed, nor could there ever be in a thousand years. The founding fathers expressed, in no uncertain terms, that the President should be checked by the Congress through Impeachment, not through endless Federal laws limiting the President's power. The notion that the legislature could have been expected to make a law specifically preventing the President from colluding with a foreign leader to investigate a political opponent is beyond ridiculous. The United States Congress must have the ability to react to unforeseen instances of corruption that do not break preexisting law in any obvious manner, irrespective of the President's purported motivations. The moment that any President is trusted to maintain checks and balances by their own goodwill, checks and balances will by definition cease to exist.
Criticism (one of many): https://www.newyorker.com/news/letter-from-trumps-washington/alan-dershowitz-for-the-defense-letat-cest-trump
Dershowitz's clarification: https://thehill.com/opinion/judiciary/480720-dershowitz-i-never-said-president-could-do-anything-to-get-reelected
Dershowitz later defended himself, claiming that his words were taken out of context. "I never said a President could do anything to get reelected," he said. Dershowitz explained that there are three categories of Presidential decisions: decisions purely motivated by national interest, decisions that are purely corrupt, and decisions that benefit both the Nation and the President. He points to his remarks on the Senate floor: that President Abraham Lincoln brought troops home so that they would vote for him during the Civil War. This, in Dershowitz's view, is a perfect example of a "mixed motive"; Abraham Lincoln "genuinely believed" that his own reelection would help the war effort, so the decision was not corrupt and therefore not impeachable. Only "purely corrupt" actions warrant removal from office.
To me, Dershowitz's clarification only makes his argument more brazenly wrong. In reality, there is no externally verifiable distinction between "purely corrupt" and "mixed" motives, as any President caught abusing their power would invariably argue that their actions were in the national interest. Notice that Dershowitz makes no attempt to create a standard for what is and isn't in the Nation's interest; only the President has the ability and authority to make such a determination. If Lincoln believes his reelection will help the war effort and the Nation by extension, he is allowed to move soldiers in an otherwise inefficient manner; if Trump believes the same, he is allowed to coerce a foreign leader into investigating his most prominent political opponent. If a meaningless and unfalsifiable citation of national interest is the only requirement for a President's motives to be "mixed," if there are no universal standards for the acceptable means of furthering the interests of the public, the President is indeed the judge and jury of their own alleged wrongdoing.
The only limitation Trump's defense team has established is that the President cannot commit a Federal crime (this seems to fly in the face of the impeachment of Bill Clinton, but that is beside the point). But there are simply not enough Federal laws on the books to prevent every possible Presidential misdeed, nor could there ever be in a thousand years. The founding fathers expressed, in no uncertain terms, that the President should be checked by the Congress through Impeachment, not through endless Federal laws limiting the President's power. The notion that the legislature could have been expected to make a law specifically preventing the President from colluding with a foreign leader to investigate a political opponent is beyond ridiculous. The United States Congress must have the ability to react to unforeseen instances of corruption that do not break preexisting law in any obvious manner, irrespective of the President's purported motivations. The moment that any President is trusted to maintain checks and balances by their own goodwill, checks and balances will by definition cease to exist.
Criticism (one of many): https://www.newyorker.com/news/letter-from-trumps-washington/alan-dershowitz-for-the-defense-letat-cest-trump
Dershowitz's clarification: https://thehill.com/opinion/judiciary/480720-dershowitz-i-never-said-president-could-do-anything-to-get-reelected
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