Why Alan Dershowitz's outrageous defense of Trump leads to completely absurd conclusions
As President Donald Trump's Senate trial moved on to the question and answer period on Wednesday, attorney Alan Dershowitz — perhaps the most controversial and inflammatory lawyer on the team — began pushing the White House's arguments to extremes.
Of course, choosing Dershowitz in the first place was an extreme — and extremely risky — move. He, just like his co-counsel Ken Starr, represented the highly despised Jeffrey Epstein, among other unsavory figures, and Dershowitz has even been accused by two women of being involved in Epstein's sex trafficking. Aside from his massive person baggage, he has a tendency to bloviate and take strong positions way outside the mainstream, often to the cost of his own credibility.
He's already taken this tack in Trump's defense, arguing that "abuse of power" cannot be an impeachable offense, despite the weight of academic opinion contradicting him. And on Wednesday, he took this defense to the absurd but necessary conclusion that even if Trump leveraged his presidential powers to win his upcoming election, it would be improper for the Senate to remove him for this offense.
He dismissed the Democrats' argument that because Trump engaged in an illicit quid pro quo to pressure Ukraine to investigate his domestic political rivals, the president must be removed. This is because, he said, presidents often make foreign policy moves that are designed to help their re-election chances.
"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.
Many quickly pointed out that this sweeping claim would justify all kinds of misconduct by presidents.
"This is absurd," said Brian Klaas. "Dershowitz is arguing that as long as you believe that you winning an election will be a good thing for the country, you can do pretty much whatever you want — including using public money for personal gain — to help you win. That’s not how democracy works."
Dershowitz did include a caveat. A foreign policy quid pro quo might be impeachable, he suggested, if it were purely for the president's financial benefit. But it's actually not clear if his argument can support this claim. If the president wanted to use the money for his re-election campaign, after all, Dershowitz's argument would imply that it would be fine for him to extort foreign countries for money. And since he also claims that it's irresponsible for lawmakers to try to discern a president's motivations, it seems his argument rules out impeachment on the basis of soliciting personally corrupt benefits in this way at all.
Daniel Jacobson, a former White House lawyer under President Barack Obama, noted: "[Dershowitz's] argument would mean, for example, that the President could hand out pardons in exchange for campaign donations, and that'd be perfectly fine because the President thinks his reelection is in the 'public interest.'"
"[It's] worth underlining just how completely bananas this argument is," said Lawfare's Quinta Jurecic. "Nobody but Dershowitz believes this."
One way to see how absurd it is to realize that it would have given President Richard Nixon an easy way out of his impeachment proceedings. If he had just pardoned the Watergate burglars in 1972 after they broke into the Democrats' headquarters in order to bolster his own election chances and sweep the scandal under the rug, in Dershowitz's view, that would have to be unimpeachable.
"Dershowitz has just articulated a legal justification for a president [to] declare himself dictator or King," said Sherrilyn Ifill, the president of the NAACP's Legal Defense and Educational Fund.
And CNN legal analyst Asha Rangappa attacked a core premise of Dershowitz's argument: "Just to be clear: Having a U.S. citizen investigated by a foreign country is not 'foreign policy.' It is actually against our normal practice, which [is] *not* to subject our citizens to foreign courts, where we don't know that they observe our rights and due process guarantees."
Before they realized the depths Trump's behavior had reached, some Republicans were willing to admit that the Ukraine scheme should be unacceptable.
Sen. Lindsey Graham (R-SC), one of the president's fiercest defenders, said early on in the scandal: "If you could show me that Trump actually was engaging in a quid pro quo, outside the phone call, that would be very disturbing."
But as the evidence came out and looked worse for Trump, Graham and others moved the goalposts. Now, they're left with the president's attorneys essentially arguing that he can get away with whatever he wants.