Published by The Lawfare Institute
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The president’s defense team has thrown many arguments against the wall over the two weeks of the Senate trial. But one stands out above the rest: On Jan. 29, speaking from the well of the Senate, celebrity lawyer Alan Dershowitz made the case that “[i]f 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.”
The president’s supporters seized on the argument: “If the House can impeach a President for what it claims are self-interested motives, then majorities will have cause to impeach any future President,” the Wall Street Journal editorial board wrote. At the same time, Dershowitz's comments caused a storm of controversy among Democratic lawmakers, as well as many scholars and journalists. Lead House impeachment manager Rep. Adam Schiff accused Republican senators of granting a blank check to the “normalization of lawlessness” and later argued that there was “no limiting principle” to Dershowitz’s view. Senate Minority Leader Chuck Schumer called Dershowitz’s argument “a load of nonsense” that would “unleash … a monarch.” Writing in the Washington Post, political scientist and historian Keith Whittington argued that an embrace of Dershowitz’s argument would “crippl[e] the ability of future Congresses to hold presidents accountable for abuse of power and to deter presidents from running the risk of facing an impeachment inquiry for their misconduct while in office” and that it would mean “even the articles of impeachment that were drafted against President Richard Nixon would have been constitutionally defective.”
In response to the blowback, another member of the president’s defense team—Deputy White House Counsel Patrick Philbin—partially walked back Dershowitz’s comments the following day, offering an alternative, “narrower” theory. And in Twitter posts and a column the next day, Dershowitz denied that he had argued “that a president who believes his reelection is in the national interest can do anything,” stating that the president “cannot commit crimes.” (So, presumably, shooting someone on Fifth Avenue could be impeachable even if the president believed that committing murder would aid in his reelection and thus benefit the country.) This is in line with Dershowitz’s previous position that impeachable offenses must be confined to the criminal code—though he recently backpedaled on that as well and tweeted, with somewhat circular reasoning, that a president could also not commit other “impeachable conduct.”
But it’s worth taking a closer look at even these more “limited” arguments, because they represent the purest distillation of Trump’s many defenses: Even if all the conduct alleged by the House impeachment investigation is true, Trump did nothing wrong. What’s more, despite Philbin’s seeming retreat, his replacement argument is just as broad—and just as concerning.
Dershowitz’s argument turns on the distinction between a president acting in the interests of the nation (curbing corruption in an allied country) versus acting from personal interest (generating negative information on a political rival). He divides presidential action into three possible categories: one, in which a president acts purely in the public interest, with no personal benefit in mind; two, a case of mixed motive; and three, purely personal interest. The first is not impeachable. The third may well be impeachable. The second, Dershowitz argues, may be suspect but cannot be impeachable: “Everybody has mixed motives,” he argued on the Senate floor, “and for there to be a constitutional impeachment based on mixed motives would permit almost any president to be impeached.”
Dershowitz claims that “the Framers did not intend impeachment for mixed-motive decisions that contain an element of personal partisan benefit,” but he provides no evidence for this historical claim. His real concern appears to have less to do with history and more to do with the practical consequence of allowing impeachment for mixed motives. He argues that, if impeachment for mixed motives is permitted, then Abraham Lincoln could have been impeached for sending Union soldiers away from the front lines to vote Republican in a state election during the Civil War, or Barack Obama could have been impeached if his decision not to enforce his “red line” against Syria was in any way motivated by political calculations.
Dershowitz’s paralyzingly overcautious view stems from his mistakenly treating the category of mixed motives as one undifferentiated set, as if reasonable observers (including members of Congress) can’t tell the difference between Abraham Lincoln and Donald Trump—or the difference between 1864, in which a country fighting a civil war faced a choice between an incumbent who sought to win the war and a challenger who might well have allowed the United States to split in two, and today. Whether the balance of motives argues in favor of conviction is—as is often the case in criminal law—a question that requires the decision-maker to attend to the facts, not abstract categories. In other words, as Jamal Greene has pointed out, Dershowitz is confusing the “category of impeachable offenses” with the category of “things over which a president should be impeached.”
But there’s an even bigger problem with Dershowitz’s argument: It trivializes what counts as acting in the national interest. There is no credible case that the president acted on mixed motives when he sought to strongarm the Ukrainian government into announcing an investigation into the Bidens and alleged 2016 election interference by Ukraine—a conspiracy theory for which there is no evidence. Rather, the evidence overwhelmingly suggests that the president held up military aid to Ukraine for the sole purposes of securing his own reelection by harming a potential political opponent and bolstering his political legitimacy by undermining the intelligence community’s conclusions that Russia interfered in 2016.
So, to fit Trump’s behavior into the second category of nonimpeachable mixed motives, Dershowitz has to radically expand that category. Specifically, Dershowitz needs any presidential action that’s motivated by political considerations to qualify as one that also has some element of public interest—hence, his argument that “every public official that I know believes that his election is in the public interest.” In other words, if the president takes an otherwise-legal action to further his reelection campaign, he cannot be impeached for that action, because he can plausibly argue that his motives were in the public interest. If he believes he is a good president and his continued time in office would be good for the country, then his behavior is by definition public minded. According to Dershowitz’s argument, it seems that only a purely pecuniary interest—say, a sack of cash deposited on the president’s desk in exchange for an action with no conceivable public benefit—could qualify as a breach of the president’s oath.
This is the authoritarian argument for acquittal.
The president takes an oath to “faithfully execute the office of President of the United States” and, “to the best of [his] ability, [to] preserve, protect and defend the Constitution of the United States.” He is also charged to “take care that the laws be faithfully executed.” If these requirements mean anything at all, they require the president to put the country’s interests above his own. Part of the president’s responsibility is to exercise judgment as to situations when improving his political chances cannot be squared with the national interest. A president who brought the country to the brink of nuclear war just to goose election turnout in his favor would have abused his power, no matter how good he thought his presidency was for the nation; at some point, vanity, ego and delusion graduate from personal flaws to impeachable offenses, because they make it impossible for the president to carry out his constitutional responsibilities. Fortunately, past presidents, even the flawed ones, have generally been able to tell when the national interest requires them to put their personal interests aside.
But Trump is not an ordinary president. From the very beginning, he has shown an inability to even consider that the national interest might require him to put anything above his own personal interest. He has used his position to enrich himself and his family. He has tried to turn the Department of Justice into both his own personal legal defense team and a bludgeon against his enemies. And he was willing to endanger a U.S. ally for no other reason than to marginally improve his election chances. In a perverse way, Trump’s character failings almost make it harder to pin corrupt intent on him: He may very well believe, like King Louis XIV, l'état c'est moi—that he is the state and that anything that’s good for him is good for the country. But solipsism is not a defense to incapacity to fulfill the oath of office. It just shows that he was never truly equipped to swear the oath in the first place.
While Dershowitz was walking back his initial argument, the rest of the president’s team was making arguments designed to look reasonable by comparison. Philbin disclaimed the more “exaggerate[d]” version of Dershowitz’s argument and sought to make what he described as “a more narrow point,” emphasizing an argument he had made the previous day. As Philbin put it to the senators, “Even if there was only one motive—under the theory of abuse of power House managers have presented, that the subjective motive alone can become the basis for an impeachable offense—we believe it’s constitutionally defective. It is not a permissible way to frame a claim of an impeachable offense under the Constitution.”
Despite Philbin’s description of his own argument as “narrow,” its implications are no less far-fetched than are those of Dershowitz’s claims. According to Philbin, in the absence of an underlying criminal offense alleged in articles of impeachment, any inquiry into presidential motive is out of bounds. This would mean, for example, that there would be no bar to a president blocking military aid to Israel unless the Israeli prime minister publicly accused the president’s electoral challenger of anti-Semitism—a hypothetical posed to Trump’s defense team by Sen. Angus King. Philbin, tellingly, deemed the question “irrelevant” and refused to answer.
The one thing that can be said for Philbin’s argument is that it doesn’t derive from the same l’état c’est moi thinking as does Dershowitz’s. But it’s no less authoritarian in effect. There are just as many noncriminal ways for the president to harm the nation and violate his oath as there are criminal ones. Walling off presidential motive as impenetrable from congressional scrutiny would gut the impeachment power as a check on the presidency.
Without a majority of senators throwing their votes behind calling witnesses, the Senate appears ready to speed toward acquittal of the president. Unless it can somehow manage to acquit Trump while condemning his team’s legal arguments, it will be providing a dangerous grant of approval—not just to Trump, but to his successors—that, when it comes to the presidency, the personal isn’t just political. It’s the only thing that matters.