The Senate made a historic mistake by accepting the profoundly dangerous 'Dershowitz precedent'

The Senate made a historic mistake by accepting the profoundly dangerous 'Dershowitz precedent'
Alan Dershowitz

Donald Trump, who as president incited a riot in an effort to stay in office despite losing the 2020 election, was acquitted by the U.S. Senate on Saturday, putting an end to his second impeachment trial.

He was not acquitted because he was innocent. He was acquitted for one reason: Donald Trump and his supporters have a toxic sense of entitlement, believing that they should never lose an election. They would rather destroy democracy than accept being the losers. (This statement does not include the Republicans who know better but are too afraid of Trump's "movement" to stand up to them.)

We shouldn't have to say this, but it is necessary because Trump and his supporters have accepted as an article of faith that they must never be told "no." This impulse motivates them to disregard laws, logic, facts and even basic human decency when the world doesn't accede to their tantrums. Given that it is a blatantly anti-democratic instinct, they obviously need some rationalization to prop it up — and they were supplied with one during Trump's first impeachment trial, early in 2020.

Last February I was on the phone with the man who articulated that rationalization most clearly, the legendary civil liberties attorney and longtime Harvard Law professor Alan Dershowitz. He was one of Trump's impeachment lawyers — representing him during that first impeachment trial, not the one just concluded — and he was pissed about the way the media had depicted his defense of the then-president.

"My argument is very simple," Dershowitz said. "If a president does something entirely lawful, and part of his motive for doing it is to help himself get re-elected because he thinks that's in the public interest, that mixed motive would not turn innocent conduct into a crime or an impeachable offense. That's all I said. Everything else is a mischaracterization."

He later added, "If a president does anything unlawful, that's completely different."

(Salon reached out to Dershowitz to be interviewed in a follow-up for this article; he initially agreed but did not reply to subsequent efforts to reach him.)

At the time, Dershowitz was responding to an editorial by Andrew Napolitano, the Fox News legal analyst and former New Jersey judge who had just published an op-ed attacking Dershowitz's argument, saying that since "every president seeking reelection believes his victory will be in the national interest," the result here could be that "all presidential efforts toward that victory are constitutional and lawful." Napolitano characterized this as a "morally bankrupt, intellectually dishonest argument," one that "effectively resuscitates from history's graveyard President Richard Nixon's logic that 'when the president does it, that means that it is not illegal' because the president is above the law."

Dershowitz, for what it's worth, had told the Senate much the same thing: "[E]very public official that I know believes that his election is in the public interest. 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." (He cited a financial bribe as something that would be illegal.)

It seems like eons have passed since that conversation. Since then America has endured the worst pandemic in a century, one of the worst economic setbacks since the Great Depression and a riot in the Capitol perpetrated by right-wing extremists — that last event prompted by the first sitting president to lose an election and refuse to accept its results. (Ten previous presidents had been defeated in elections; all accepted the voters' verdict.) As the entire world knows, Trump was impeached for a second time because — after his own Justice Department, dozens of state and federal judges and the entire Supreme Court had rejected his claims that the election was illegitimate — he told his followers on Jan. 6 that "we are going to the Capitol" to give Congress "the kind of pride and boldness that they need to take back our country." (Four rioters and one police officer died, while hundreds of others were injured; so far there have been more than 200 arrests.)

It seems important to return to Alan Dershowitz, even if the first Trump impeachment feels like ancient history, because there's a direct line between the belief system used to defend Trump during his first impeachment and his efforts to overturn his loss in the 2020 election.

Simply put, that's the idea that, for Trump, there are only possible outcomes of any election where he's a candidate: He wins, or the whole thing is "rigged." Since the latter is unacceptable, anything he does to achieve the former outcome is, by definition, justified.

Trump conditioned his supporters to think this way long before he became president. When he lost the Iowa caucuses to Sen. Ted Cruz of Texas in 2016, he accused his opponent of stealing that election. After winning the Republican nomination that year, Trump insisted without evidence that Democratic nominee Hillary Clinton was engaged in voter fraud and even refused to answer a debate question about whether he would accept the election results if he lost. He later told a rally of his supporters that he would only accept the results "if I win."

As president, Trump continued spreading the message that it was impossible or unthinkable for him to ever lose an election. He was bitter over losing the national popular vote to Clinton (by nearly 3 million votes) and created a voter fraud commission to prove he had won that too. (It was disbanded after failing to produce any significant evidence of fraud anywhere in the nation.) As the 2020 election approached, Trump again told supporters that "the only way we're going to lose this election is if the election is rigged." During a debate, he once again refused to say whether he would concede if he lost the election, instead boasting that he would not "give a direct answer" and telling the moderator that he is not a "good loser." (Trump's refusal to accept losing has, according to experts interviewed by Salon, roots in everything from narcissistic personality traits to the fact that his sense of manhood — and that of his supporters — is tied up in always being "winners.")

Trump repeatedly brought up baseless conspiracy theories and alternative facts during the 2016 and 2020 elections to "prove" that he was the victim of a vast conspiracy — and experts unanimously said he was wrong which only reinforced, for him and his supporters, that such a conspiracy existed. Those arguments were always after-the-fact rationalizations to support one thesis: If Trump doesn't win an election, that is a grave injustice.

Let's review, if we can stand it, why Trump got impeached the first time around. In July 2019, he called Ukrainian President Volodymyr Zelensky and threatened to withhold $391 million in military aid which had already been allocated by Congress unless Ukraine announced a spurious criminal investigation into Hunter Biden, who I probably don't have to tell you is the son of the current president (then of course a Democratic candidate). Trump later insisted that there was no "quid pro quo," but it defies common sense to describe withholding promised funds while asking for a "favor" as anything other than a thuggish attempt at coercion.

Trump had no legal right to withhold that money. As the Government Accountability Office pointed out at the time, Trump's claim that he had a "policy reason" reason for denying $214 million of that Ukraine aid was incoherent: The Impoundment Control Act "does not permit the President to substitute his own policy priorities for those that Congress has enacted into law" and the Constitution "specifically vests Congress with the power of the purse." The fact that Trump's motive was evidently corrupt made the whole thing more sinister, but it was illegal regardless.

In other words, Alan Dershowitz's argument was wrong from beginning to end. Trump did not commit an otherwise innocent act that was only construed as illegal because its underlying motive was to win an election, analogous to Abraham Lincoln allowing Union soldiers to go home to vote in the 1864 presidential election because he believed they'd support him. (An example Dershowitz cited during our interview.) He was also wrong on a deeper level because of the implicit argument that anything Trump (or any other hypothetical president) does with the primary motivation of getting re-elected is effectively acceptable. From there it's a short step to lying to the American people about mail-in ballots, filing frivolous lawsuits, inciting a riot or virtually anything else.

This way of thinking is not normal. In fact, in terms of American political history, it's profoundly and freakishly new.

Let's take a brief look at the other presidents who were either impeached or nearly impeached. Of the bunch, the only one who could legitimately plead innocence was the first one, Andrew Johnson. Despite being an unrepentant racist and incompetent commander in chief, Johnson was wrongfully impeached; Congress simply opposed his policies and kept trying to entrap him into breaking the law. Eventually they succeeded by passing the Tenure of Office Act, which prohibited the president from firing Cabinet members without Senate approval. That law was not only unconstitutional — violating the separation of powers between the three branches of government — but self-evidently impractical, since no president can effectively govern if employees are allowed to be insubordinate. Congress eventually impeached Johnson after he disregarded the Tenure of Office Act and fired Secretary of War Edwin M. Stanton, also including a few unrelated, but equally spurious, accusations. He avoided conviction by one vote.

The other presidential impeachments or near-misses involved criminal conduct that, though serious, were nowhere near as severe as anything done by Trump. Richard Nixon resigned before a near-certain impeachment in the House and conviction by the Senate over the Watergate scandal, which mostly concerned a cover-up of his connection to a burglary at Democratic National Committee headquarters. Nixon was obviously motivated by a desire to boost his chances of re-election, but neither he nor his staunchest advocates ever claimed he had some inherent right to do anything and everything to win. Republicans insisted for years that Nixon was innocent and being hounded by a liberal media witch hunt (the past is prologue!), but never disputed that if he were actually guilty, that would be unacceptable. After a secret tape recording made clear that Nixon had directed a cover-up of his role in the burglary, Republicans changed their tune, making clear to the leader of their party that he'd have to resign to avoid conviction in the Senate, which he did.

Bill Clinton was only the second president after Johnson to be impeached, after a series of sordid and unethical episodes that come nowhere near Nixon's misconduct, let alone Trump's. Clinton apparently lied under oath about an extramarital affair during a sexual harassment lawsuit and then obstructed justice during the subsequent investigation by tampering with evidence and asking others to lie for him. Democrats at the time largely rallied behind Clinton, but in retrospect his actions were indisputably sketchy: He had a sexual affair with a much younger White House intern, and even if his testimony about that might not meet the technical standard of perjury, it was certainly dishonest. In the post-Me Too era, it's exceptionally difficult to defend Clinton, given the sheer number of credible accusations of sexual misconduct made against him. Still, neither Clinton nor his supporters ever argued that he had some inherent right to do whatever he liked and remain president.

While declining to comment on the specific arguments made by Dershowitz, his former Harvard Law colleague Laurence Tribe agreed that Trump's acquittal in the first impeachment trial paved the way for the misconduct that got him impeached a second time.

"The first impeachment led almost inevitably to the second once Trump, whose whole modus operandi is built on lying, cheating, and stopping at nothing to secure power and fame was validated by the Senate's unfortunate acquittal the first time around," Tribe told Salon by email.

"Having thought nothing of exposing the people of Ukraine to slaughter at the hands of Russia by threatening to withhold congressionally appropriated aid in an effort to pressure Ukraine's president Zelensky into injuring Biden by pretending to be investigating him and his son criminally, Trump upped the ante by threatening criminal prosecution of Georgia's Secretary of State Raffensperger in order to get Raffensperger to steal that state's electoral votes from Biden and, when that failed, by inciting insurrection by an armed and angry mob in a treasonous attempt to overturn the results of the 2020 election."

Once again, Senate Republicans have acquitted Trump even though he is obviously guilty, which is precisely the same position they took during his first impeachment. On that occasion, only one Republican senator had the fortitude to vote to convict, and at least this time around Sen. Mitt Romney of Utah was joined by six of his colleagues: Richard Burr of North Carolina, Bill Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania. Their names will be remembered honorably, but it's hard to say whether they have a future in the Republican Party considering that the other 43 GOP senators, along with the vast majority of Republican House members, voted against impeachment, effectively endorsing Trump's coup attempt.

Just as they argued in 2020 that threatening a country with foreign invasion unless they help you cheat in an election isn't extortion, Republicans have argued this year that telling your supporters to take over the Capitol unless Congress helps you steal an election isn't inciting a riot. Motivated by a mixture of partisanship, career opportunism and fear of Trump's increasingly fascistic supporters, they have reinforced the idea in MAGA world that if their Dear Leader doesn't win an election, that election simply does not count.

So where do we go from here?

The best-case scenario is still disgusting: Trump could be shoved down the Republican Party's collective memory hole and dismissed as an aberration, one to be forgotten as we resume the more or less functional democratic politics that existed in our country before Trump took office. The worst-case scenario, however, is all too plausible: Trump, or someone very much like him, gets elected president in the future, understanding full well that now, for Republicans, the Dershowitz precedent holds that there is no legitimate way for them to lose an election.

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