You can tell how effective Alan Dershowitz has been as a member of President Trump’s impeachment team by how vehemently liberals are trying to discredit his performance thus far.
Dershowitz said during Senate trial proceedings on Wednesday that the evidence demonstrates that Trump had a “mixed motive” in asking Ukraine to investigate the Bidens, including the motive to gain a political advantage as well as advance national interests.
Well, yes, that’s the “mixed motive” every single elected official has when they make every single decision of every single day, assuming they’re not completely corrupt.
And that’s precisely the point Dershowitz so eloquently made on the Senate floor.
“Every public official that I know believes that his election is in the public interest, and mostly, you’re right,” he said. “Your 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.”
Trump’s critics are acting as though Dershowitz was arguing that anything a president does at all, so long as he believes it’s in the public interest and his own political preservation, is fair and fine, which would be absurd. But don’t count on Trump’s critics for the context of Dershowitz’s argument.
He was referring to the ridiculous “abuse of power” charge that makes up one of the Democrats’ impeachment articles, the assertion that even if what Trump did was legal, that he stood to benefit politically makes his actions in and of themselves an impeachable “abuse of power.”
Dershowitz addressed that twisted logic in previous remarks on the Senate floor. “The claim,” he said Monday, “that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the president was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase ‘abuse of power’ as a constitutionally permissible criteria for the removal of a president.”
In other words, to remove a president from office for taking lawful action that he believed advanced public interest and that happened to benefit him politically would set a stupid precedent for what justifies an impeachment.
Critics might find reason to dispute or reject that argument, but they’ve opted to rebut something Dershowitz didn’t say.
“Trump could give pardons for free to the indicted Russian hackers who attacked the 2016 election and basically encourage them to do it again in 2020, according to Alan Dershowitz and Trump’s team,” tweeted David Corn of the liberal Mother Jones.
No, that’s not what Dershowitz said.
Formerly sane Republican Jennifer Rubin at the Washington Post said the logical end to Dershowitz’s position is that Trump “can rig elections, have opponents jailed, anything to cling to power.”
No, that’s not what Dershowitz said.
New York magazine’s Jonathan Chait, an otherwise very smart liberal, summed up Dershowitz’s argument by writing, “If it helps the president win, then you can’t impeach.”
No, that’s not what Dershowitz said.
Dershowitz has all along, in fact, said that a crime or “criminal-like behavior” would merit impeachment and probably removal from office.
President Richard Nixon, for example, tried to cover up a burglary. That’s criminal-like behavior.
President Bill Clinton, for example, lied to a grand jury. That’s a crime.
Trump? Well, the worst version of events is that he withheld foreign aid (ultimately released) to Ukraine in hopes that he could get its government to investigate the Bidens in a matter that journalists themselves have been probing for years (coming away with more questions than answers). That’s not a crime, nor could it reasonably be described as criminal-like behavior.
Dershowitz isn’t even the first person to make this argument. Josh Blackman, a constitutional law professor at South Texas College of Law Houston, made the same case in an op-ed for the New York Times last week.
“Politicians pursue public policy, as they see it, coupled with a concern about their own political future,” wrote Blackman. “Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable ‘abuse of power.’”
This isn’t an argument to say that House Democrats can’t do the impeachment that they did. It’s an argument that House Democrats shouldn’t have done the impeachment that they did and that to remove a sitting president based on an “abuse of power” charge, wherein nothing even remotely illegal took place, would be a tragedy.
There’s nothing controversial about that position. But that’s why Trump’s critics aren’t addressing it.
