Alan Dershowitz on Wednesday ignited probably the biggest freakout of the impeachment trial with an argument he made about presidents seeing their own reelection as being in the national interest.
For the least charitable interpretation of Dershowitz’s argument, we can reliably turn to Jonathan Chait, who summed it up as a “President Can Abuse Power If It Helps Get Them Reelected.”
Dershowitz claims that he was saying something else. As Dershowitz summed it up in an opinion piece on Thursday, he was merely arguing that “helping one’s own reelection effort cannot — by itself — necessarily be deemed corrupt.”
How can we get such differing interpretations? Is it simply that “media pundits and partisan politicians are deliberately distorting the argument,” as Dershowitz alleges?
Not really. Different people have different interpretations largely because Dershowitz made his argument in a very unclear manner. At times, he did make assertions that went further than he later claimed he was arguing.
To try and understand the argument, we need to look at the context.
Earlier in the day on Wednesday, White House deputy counsel Patrick Philbin had argued that all presidents act with mixed motives and that the presence of a political motivation in a presidential action is not inherently impeachable.
“If there were a motive that was of public interest and also of some personal interest,” Philbin argued, “we think it follows even more clearly that that cannot possibly be the basis for an impeachable offense.” As Philbin put it aptly, “All elected officials, to some extent, have in mind how their conduct, how their decisions, their policy decisions will affect the next election. There is always some personal interest in the electoral outcome of policy decisions, and there is nothing wrong with that.”
This is obviously true. Otherwise, every congressional earmark would be an impeachable offense. Every dollar Obama and his party appropriated to Planned Parenthood would be grounds for impeachment, given that Planned Parenthood funds the Democratic Party.
Dershowitz, however, took this argument further. And he got rambly at times. Here’s what we should grant Dershowitz: He was never saying a president should be able to get away with crimes aimed at securing his reelection.
Dershowitz’s whole argument, after all, is that crimes are impeachable and noncrimes are not. He’s saying here that noncriminal actions with noncorrupt motives are not impeachable, and that trying to aid your reelection cannot be considered de facto corrupt unless it also involves a crime.
But here’s one part of Dershowitz’s argument that sounds closest to an extreme claim of presidential impunity: “If a hypothetical president of the United States said to a hypothetical leader of a foreign country: Unless you build a hotel with my name on it and unless you give me a million-dollar kickback, I will withhold the funds. That is an easy case. That is purely corrupt and in the purely private interest.
“But a complex middle case is: I want to be elected. I think I am a great president. I think I am the greatest president there ever was, and if I am not elected, the national interest will suffer greatly. That cannot be.”
That cannot be what? Cannot be considered corrupt?
He’s calling it a “complex middle case” when a president declares that securing his election is in the national interest and therefore justifies his actions as being in the national interest. That’s not complex. That’s dangerous.
Earlier, Dershowitz seemed to be making a more modest argument than that: “For [an action] to be impeachable, you would have to discern that he or she made a decision solely on the basis of, as the House managers put it, corrupt motives, and it cannot be a corrupt motive if you have a mixed motive that partially involves the national interest, partially involves electoral, and does not involve personal pecuniary interest.”
He seems in this passage to distinguish between the “national interest” and the “electoral” interest, while in the other passage, he seemed to say it was valid for a president to consider his own electoral interest to be in the national interest.
Since we can’t really figure out what Dershowitz was saying, let’s settle on what President Trump’s lawyers should say, and what every conservative should say: The president may use his presidential power only to pursue the national interest. He should not substitute his own political interests for the national interest — even if he thinks his own defeat would be bad for the country.
Of course, as Philbin and Dershowitz point out, nearly all presidential actions, no matter how benign or absurd, have political motives mixed in. Defending Trump on that score is a lot easier.
Why Dershowitz went where he did is a mystery. Republicans ought to steer as far away from that as possible.
