Election Law

Dershowitz: Quid pro quo to win election isn't impeachable when politician thinks it's in the public interest

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President Donald Trump’s impeachment defense lawyer Alan Dershowitz argued Wednesday that a president can’t be impeached for a quid pro quo that is intended to help him win an election when he thinks winning is in the public interest.

Dershowitz said such an offense is not impeachable because there is no corrupt motive, report the Washington Post, NBC and the New York Times here and here. Dershowitz has previously argued that the meaning of “high crimes and misdemeanors” requires a criminal act for impeachment.

The New York Times suggests arguments on behalf of Trump have changed over time. At first, Trump argued that there was nothing wrong with his phone call with Ukrainian President Volodymyr Zelensky. Trump asked Zelensky to investigate whether former Vice President Joe Biden stopped the Ukrainian prosecution of his son, a paid board member with a Ukrainian gas company.

After claims that Trump had held up aid to Ukraine to pressure Zelensky to investigate, defenders of the president said the holdup was for foreign policy purposes. Now, former National Security Adviser John Bolton reportedly claims in a draft book that Trump told him that he wanted to hold up aid to Ukraine until an investigation was announced. Dershowitz’s expansive argument for presidential power followed.

Dershowitz spoke in response to a question from Republican Sen. Ted Cruz of Texas. “As a matter of law, does it matter if there was a quid pro quo? Is it true quid pro quos are often used in foreign policy?” the question read.

The question, according to the New York Times, appeared designed to elicit a response that a quid pro quo isn’t unusual in matters of foreign policy. The legal team for Trump has already made that argument.

Here is what Dershowitz said: “The only thing that would make a quid pro quo unlawful is if the quo were in some way illegal. Now we talked about motive. There are three possible motives that a political figure can have—one, a motive in the public interest. … The second is in his own political interest. And the third, which hasn’t been mentioned, would be in his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one for just one moment. Every public official that I know believes that his election is in the public interest. And mostly you’re right. 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. …

“It’s so dangerous to try to psychoanalyze a president, to try to get into the intricacies of the human mind. Everybody has mixed motives, and for there to be a constitutional impeachment based on mixed motives would permit almost any president to be impeached. How many presidents have made foreign policy decisions after checking with their political advisers and their pollsters? …

“We may argue that it’s not in the national interest for a particular president to get reelected over a particular senator or a member of Congress. And maybe you were right, it’s not in the national interest for everybody who’s running to be elected. But for it 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 interests. …

“It would be a much harder case 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’s an easy case. That’s purely corrupt and in the purely private interest. But a complex middle case is: ‘I want to be elected. I think I’m a great president. I think I’m the greatest president there ever was. And if I’m not elected, the national interest will suffer greatly.’ That cannot be an impeachable offense.”

According to the Washington Post, Dershowitz’s argument “seemed to take GOP senators by surprise, and few were willing to embrace his argument.”

Dershowitz tweeted Thursday that his argument had been “willfully distorted.”

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