'The Dersh' Stands Alone

Alan Dershowitz's legal arguments against impeaching President Trump have thrust him even farther into academe's margins.

February 3, 2020
 
CNN via YouTube
Jeffrey Toobin, Anderson Cooper and Alan Dershowitz

It’s significant when something stands out in today’s supersonic news cycle. And time seemed to at least slow when Alan Dershowitz offered up his defense of President Trump during the U.S. Senate impeachment trial last week. Part of that defense, in Dershowitz’s words, is that “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.”

Those comments were immediately criticized -- including by a number of law professors at Harvard University, where Dershowitz is Felix Frankfurter Professor of Law Emeritus -- as meaning that a president can do virtually anything, as long as he or she believes it’s in the public interest.

Dershowitz has since said that he was deliberately misinterpreted by his political opponents. He believes that his rivals are smart enough to know what he really meant.

The scale of that opposition -- including some 200 constitutional law scholars who signed on to a letter Friday repudiating his constitutional analysis -- suggests the debate is more complex, however.

What Dershowitz Said (And Didn't)

“I did not say that any president can do anything he wants to get re-elected as long as he believes his re-election is in the public interest,” Dershowitz said in a telephone interview Friday. “Quite the opposite -- I started my talk in the Senate by saying that I strongly supported the impeachment of Richard Nixon, and that was all about a president trying to get re-elected.”

Instead, Dershowitz said he was, in response to a question about motive from Republican senator Ted Cruz of Texas, making the following point: that if a president “does anything criminal or criminal-like or impeachable to get re-elected, the fact that he had a decent motive is utterly irrelevant.”

By the same logic, Dershowitz said, if a president’s actions are “completely legal,” and done in what he or she believes to be the public interest, then having an additional, personal motive doesn’t make those actions impeachable.

Does Dershowitz believe that Trump’s actions were “completely legal,” then? Dershowitz said he didn’t appear before the Senate to weigh in on the facts, just the theory.

In fairness to Dershowitz, he did begin his answer to Cruz by saying that “the only thing that would make a quid pro quo unlawful is if the ‘quo’ were in some way illegal.”

Even so, Dershowitz’s critics said his explanation left much to be desired.

Unconvinced Critics

“It seems that in these comments and clarifications, Alan is returning to the main points of his Senate presentation,” Charles Fried, Beneficial Professor of Law at Harvard, told Inside Higher Ed. “His clarification goes back to his principal point that a proper impeachment charge requires the violation of some criminal law -- indeed a criminal statute -- and perhaps a federal criminal statute.” Numerous scholars and commentators have pointed out that this is “incorrect,” and that contrary precedents and arguments exist, Fried added.

Even if the critics are wrong, his defense is a “perfect example of an argument which proves too much," Fried said. That is, if Dershowitz were correct, the implications of his arguments would still be “absurd” and incriminating.

Frank O. Bowman III, Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri, who helped organize the new letter condemning Dershowitz’s analysis, was less charitable.

“The fact is that Dersh is an attention-seeker,” he said in an email. “Intellectually nimble, and a good performer. But he’s never been a scholar, ever. He’s a defense lawyer with a sinecure at Harvard.”

Part of what’s troubling to scholars, beyond the motive comment, is the rest of Dershowitz’s answer to Cruz. There’s also what Fried referenced: what Dershowitz said earlier in the week on the bounds of impeachable offenses.

‘The National Interest’ and ‘Mixed Motives’

To Cruz, Dershowitz said, “Every public official that I know believes that his election is in the public interest.” President Abraham Lincoln told General William Tecumseh Sherman “to let the troops go to Indiana so that they can vote for the Republican Party,” and “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, many other soldiers who would be left without their company.”

Would that be an unlawful quid pro quo, Dershowitz continued? “No, because the president, A. Believed it was in the national interest,” and “B. He believed that his own election was essential to victory in the Civil War.”

That’s why “it's so dangerous to try to psychoanalyze a president, to try to get into the intricacies of the human mind,” Dershowitz concluded. “Everybody has mixed motives, and for there to be a constitutional impeachment based on mixed motives would permit almost any president to be impeached.”

Earlier in the trial, Dershowitz also said that only clearly defined crimes are impeachable offenses -- not obstruction of Congress or abuse of power, with which Trump is charged.

Taking on the Founders -- and 500 Colleagues

“I will ask whether the framers would have accepted such vague and open-ended terms as abuse of power and obstruction of Congress as governing criteria” for impeachment, Dershowitz said. Eventually, and boldly, he argued that Alexander Hamilton’s Federalist Paper No. 65's discussion of impeachment with respect to violations of the “public trust” has been misread by generations of scholars. The implication? Even Hamilton would be against what Dershowitz called an “expanded” take on impeachable acts and, therefore, Trump’s trial.

Those statements, among others, contradicted the analysis of 500 legal scholars who signed on to previous, December letter saying that a president’s conduct “need not be criminal to be impeachable,” as the “standard here is constitutional; it does not depend on what Congress has chosen to criminalize.”

Citing Hamilton (and, based on Dershowitz’s analysis, misreading him) those 500 scholars wrote that impeachment is a “remedy for grave abuses of the public trust.” Trump’s conduct with regard to military aid to Ukraine and the “favor” he sought from that country “is precisely the type of threat to our democracy that the Founders” generally feared when they wrote impeachment into the Constitution, the scholars added.

“There is overwhelming evidence that President Trump betrayed his oath of office by seeking to use presidential power to pressure a foreign government to help him distort an American election, for his personal and political benefit,” the letter says, “at the direct expense of national security interests as determined by Congress.”

Unsurprisingly, given that popular opinion, many scholars quickly panned Dershowitz’s speech before the Senate. (He also grabbed op-ed headlines such as, “Dershowitz May Have Argued Himself out of Relevance” (The Washington Post) and “The Dubious Impeachment Proclamations of Alan Dershowitz” (USA Today).

‘A Joke’

Laurence Tribe, Carl M. Loeb University Professor at Harvard and a co-organizer of the Friday letter against Dershowitz’s analysis, for example, wrote on Twitter last week that Dershowitz “just argued that a president who believes only he can fix it -- who thinks his re-election is vital to the nation -- can’t be impeached for abusing his power to corrupt the next election in his favor because by definition he’s doing what he thinks best for the country!!”

Nikolas Bowie, an assistant professor of law at Harvard whom Dershowitz cited during the trial, went on CNN to call his analysis a “joke.” Abuse of power, Bowie said, is in fact a crime, of which people have been recently convicted. And “criminal corruption,” he said, is not comparable to “maladministration” -- a term evoked by Dershowitz but which Bowie said was the 18th-century equivalent of getting a bad performance review.

Fried also publicly commented that Dershowitz had made the “very best argument for getting” former National Security Adviser John Bolton to testify before the Senate, to determine Trump's motives and whether they differ from the national interest. Bolton’s testimony probably won’t happen now, after Friday’s close Senate vote against calling impeachment witnesses, but it’s more than likely his appearance wouldn’t have benefited Trump.

And Bowman told the Post that Dershowitz was “essentially alone, and I mean alone,” in his views.

“What Dershowitz did,” he added, “was stand up and be a guy with Harvard attached to his name and spout complete nonsense that’s totally unsupported by any scholarship, anywhere.”

An Official Response

The new Friday letter to the Senate, organized by Tribe and Bowman, says, “[We] write to clarify that impeachment does not require proof of crime, that abuse of power is an impeachable offense, and that a president may not abuse the powers of his office to secure re-election, whatever he may believe about how beneficial his continuance in power is to the country.”

The phrase “high crimes and misdemeanors” is British Parliamentary term of art introduced into the U.S. Constitution by George Mason, “who explained the necessity for expanding impeachment beyond ‘treason and bribery’ by drawing his colleagues’ attention to the ongoing parliamentary impeachment trial of Warren Hastings,” the letter notes.

More recently, the first and second articles of impeachment against Richard Nixon approved by the House Judiciary Committee alleged both criminal and noncriminal conduct, and the third alleged noncriminal obstruction of Congress, the letter continues. “Indeed, the Nixon House Judiciary Committee issued a report in which it specifically rejected the contention that impeachable conduct must be criminal.”

As for abuse of power, the letter says, two of the three "prior presidential impeachment crises" have involved it. And even if there were no precedent, constitutional logic on it is “plain.”

Finally, the 200-plus scholars wrote, avoiding mentioning Dershowitz by name, “one of President Trump’s attorneys has suggested that so long as a president believes his re-election is in the public interest, ‘if a president did something that he believes will help get him elected, in the public interest, that cannot be the kind of quid pro quo that results in his impeachment.’”

While it’s true that such a choice is not necessarily impeachable, the letter says, if the president “employs his powers in a way that cannot reasonably be explained except as a means of promoting his own reelection, the president’s private conviction that his maintenance of power is for the greater good does not insulate him from impeachment.”

To accept this argument “would be to give the president carte blanche to corrupt American electoral democracy.”

Dershowitz and Academe

Does any of this challenge Dershowitz’s standing in academe? Is his expert analysis so left of field that he can no longer be deemed an expert, especially one affiliated with Harvard?

Bowman said Dershowitz has never really had such standing, and that he's “never done any serious legal scholarship.” Instead, Bowman said he's focused on op-eds and trying his own cases. (Perhaps most famously, Dershowitz defended O. J. Simpson.)

That Senate Republicans hail Dershowitz as an expert “just shows how desperate they are to find somebody, anybody, to tell them what they wanted to hear,” Bowman added.

Harvard had no comment on the matter of Dershowitz’s status, while Fried said that “even Harvard faculty members sometimes make arguments with absurd entailments.”

Dershowitz, of course, disagrees with his detractors. He says that he’s been intellectually alone often in his career, including in being against the death penalty in the 1960s and, more recently, for the limited use of what he's called emergency "torture warrants." He also said he wasn’t afraid to “impugn” his colleagues in asserting that they would not, in some alternative universe, support the same impeachment case against former Democratic presidential nominee Hillary Clinton.

“The burden of proof here is on those who ignore the plain language” of the Constitution on impeachment, which specifically mentions treason, bribery and high crimes and misdemeanors, he said.

“I think professors often allow, consciously or unconsciously, politics to seep into their constitutional analysis,” he added. “I've been proved right more often than not, and I think history will prove me correct here. The next time there’s a Democrat president and a Republican-controlled House, the president will be impeached and all the scholars criticizing me now will be making similar arguments.” (For the record, Dershowitz said during the trial that he voted for Hillary Clinton.)

Dershowitz is currently writing a book on impeachment.

No Misunderstanding

Politically speaking, Seth Abramson, an attorney, assistant professor of digital language arts and professional and technical communications at the University of New Hampshire and a onetime student of Dershowitz, is definitely not a fan of Trump’s: he’s written books called Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy and Proof of Collusion: How Trump Betrayed America.

That doesn’t disqualify him from having legal opinions about the impeachment, of course -- and he’s got lots of them. As for Dershowitz, Abramson said his biggest error was introducing the nonlegal concept of "mixed motives" into criminal and constitutional law, where, in his view, it doesn’t belong.

In criminal law, Abramson said in an email, no other motive beyond the criminal matters when that is proven beyond a reasonable doubt. And in an impeachment case with implications for national security, the more appropriate preponderance of evidence standard is met if it's “more likely than not that a prohibited intent was present -- whatever other motives it may have been intermixed with.”

Abramson went on to call Dershowitz’s theory of the Ukraine case “radical and dangerous” in that it turns criminal law, constitutional law and “even basic legal precepts like ‘mens rea’ on their heads: he now says a single drop of permissible intent, such as a self-purported desire to fight corruption, purifies an official act entirely.”

Dershowitz’s subsequent explanations about a crime being alleged don’t change much, Abramson added, as House managers did allege during the trial that Trump committed the crimes of bribery and obstruction. Moreover, he said, recalling and challenging another part of Dershowitz’s analysis, bribery doesn’t only occur where there is a transfer of hard currency.

“I don't think Prof. Dershowitz has been misquoted; I think he's been incoherent as a matter of law and his own knowledge of the facts of the impeachment case,” Abramson said.

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