Impeachment over, the danger of the Dershowitz doctrine
WASHINGTON — President Donald Trump’s impeachment trial ended in an acquittal on Wednesday after Supreme Court Chief Justice John Roberts said, “Senators, how say you,” and the Republicans in the Senate, except for one, rose to say “not guilty.”
Sen. Mitt Romney of Utah was the only Republican to breaks ranks and say Trump was guilty of abuse of power, though not obstruction of Congress.
As Trump’s Senate trial solemnly concluded on Day 13, the only suspense by the time of roll calls on two articles was whether Sen. Joe Manchin of West Virginia would side with his Democratic colleagues.
He did.
Several of Manchin’s Democratic colleagues, clued in, backslapped and hugged him before the votes for sticking with the team.
The chamber was packed for the first time to witness an outcome never in doubt. There were never the 67 votes needed to convict.
Two members of Trump’s 2016 campaign team were in the gallery — manager Corey Lewandowski and his deputy, David Bossie. I saw Bossie make a fist and pump it slightly to mark Trump’s victory after Roberts declared Trump acquitted.
The third presidential impeachment trial in the nation’s history yielded a president emboldened, not humbled. We saw that in Trump’s defiant State of the Union address on Tuesday night.
Trump is now unrestrained and unrepentant.
That’s the dangerous legacy of the Dershowitz doctrine, spawned at the impeachment trial by one of Trump’s defense lawyers, retired Harvard Law School Professor
Alan Dershowitz.
Dershowitz provided a license for future excess from Trump as he offered up, in his defense of the president, an extraordinary and expansive view of presidential powers.
Trump was impeached on two articles: abuse of power and obstruction of Congress. The House impeached Trump for pressuring Ukraine to dig up dirt on former Vice President Joe Biden and his son, Hunter. Hunter had the extraordinarily poor judgment to land a lucrative position on the board of Burisma, a Ukraine energy company, while his father was in office.
Under the Dershowitz doctrine, acting to advance a personal political goal — such as re-election to public office — is in and of itself in the public interest.
“Every public official that I know believes that his election is in the public interest. And mostly you are right. Your election is in the public interest,” Dershowitz said. He was replying to a question from Sen. Ted Cruz, R-Texas, about whether, as a matter of law, it matters if there was a quid pro quo.
“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,” Dershowitz argued.
Citing President Abraham Lincoln during the Civil War Dershowitz said when “Lincoln told General Sherman to let the troops go to Indiana so that they can vote for the Republican party — let’s assume the president was running at that point — and it was [in] his electoral interest to have these soldiers put at risk the lives of many other soldiers who would be left without their company — would that be an unlawful quid pro quo?
“No, because the president, A) believed it was in the national interest but B) he believed ... his own election was essential to victory in the Civil War. Every president believes that. That is why it is 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.”
In the Spring of 2004, I audited Dershowitz’s criminal law class when I was a fellow at Harvard’s Institute of Politics.
Dershowitz was a wildly entertaining professor, a raconteur. Dershowitz used his own celebrated cases — from Claus von Bülow to Martha Stewart and more — in his class.
I dug up my notes. “A confession,” Dershowitz once told us, “could be a harmless error.”
Everything, however, cannot be explained away by claiming no harm. We’ll see what the Dershowitz doctrine unleashed.
Dershowitz later tried to walk back his Trump defense. But the damage is done.
The lead House impeachment manager, Rep. Adam Schiff, DCalif., in his closing argument, implored Republicans not to take the cover Dershowitz offered. Do not, Schiff urged, “fall back on a theory of presidential power so broad and unaccountable that it would allow any occupant of 1600 Pennsylvania Avenue to be as corrupt as he is.”