President Donald Trump’s legal team unleashed an audacious defense argument Wednesday, asserting that a sitting president can use the power of his office to do virtually anything, provided its done with the intent of winning re-election in the national interest. The argument, from Harvard Law professor emeritus Alan Dershowitz, is grounded in a fundamentally expansive view of presidential power which–if accepted–would essentially clear Trump of impeachment charges. But legal experts were quick to point out that Dershowitz’s theory was not supported by the text of U.S. Constitution or past precedential decisions on executive authority, eliciting a series of very strong responses and retorts.
“Every public official that I know believes that his election is in the public interest,” Dershowitz said in response to a question about how presidents conduct foreign policy. “And if a president did something that 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 attorney Alan Dershowitz: "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." https://t.co/jKErQcS1Iy pic.twitter.com/zo4rL6Zbla
— ABC News (@ABC) January 29, 2020
In an extreme example, Dershowitz said that a president forcing a foreign leader to build a hotel “with his name on it” and taking a kickback that would be considered “purely corrupt and in the purely private interest,” before concluding with a more muddled hypothetical scenario.
“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,’ ” Dershowitz said. “That cannot be an impeachable offense.”
Legal experts derided Dershowitz’s theory as essentially conferring the executive with unlimited power, with many providing examples to highlight the absurdity of the notion.
Supreme Court litigator and former Acting U.S. Solicitor General Neal Katyal called the theory a “joke,” saying that “no responsible constitutional scholar in two centuries agrees with Dershowitz.”
“It’s just a ridiculous argument,” he added.
Trump attorney @AlanDersh said Wednesday that the president could take any action to boost his re-election chances if he felt it was in the public interest. "No responsible constitutional scholar in two centuries agrees," says @neal_katyal. “It’s just a ridiculous argument.” pic.twitter.com/Omg8FuauSo
— Democracy Now! (@democracynow) January 30, 2020
Constitutional scholar and University of Missouri Law School professor Frank Bowman likened Dershowitz’s proposed executive framework with that of a king “who can do no wrong in the service of his throne.”
Dershowitz stood in well of Senate & argued tht president is king who can do no wrong in service of remaining on his throne. At any previous pt in American history, he wld have been jeered off floor. Possibly ducked in Potomac. Republicans shook his hand. I despair for my country
— Frank Bowman (@FOBowman3) January 30, 2020
Attorney and impeachment expert Ross Garber called Dershowitz’s argument “patently ridiculous,” saying a president “can’t arrest opponents, block polls, break into the DNC, or do lots of other things to get elected.”
This is patently ridiculous. I assume Dershowitz will say something more correct on tv later. https://t.co/7fp15XdOWA
— Ross Garber (@rossgarber) January 29, 2020
Former federal prosecutors Joyce White Vance, Elie Honig, and Barbara McQuade also pushed back on the professor.
An incredulous Vance refuted Dershowitz with a series of rhetorical questions while Honig and McQuade both called the contention “absurd.”
If anything the president does to get re-elected is ok, could he take steps to suppress votes from the other party? Help hackers gain access to voter rolls? Stage traffic accidents at polling places to make them inaccessible? I could go on & on but you get the point.
— Joyce Alene (@JoyceWhiteVance) January 30, 2020
Dershowitz has gotten entirely too much oxygen. He makes up absurd, intellectually dishonest theories and both sides spend much of the day arguing as if they were real.
— Elie Honig (@eliehonig) January 30, 2020
Absurd argument by @AlanDersh that presidential conduct cannot be impeachable if he thinks it helps his political campaign. That would mean Watergate break-in and coverup were permissible. https://t.co/wUlOuw6RWk
— Barb McQuade (@BarbMcQuade) January 30, 2020
Dershowitz attempted to allay the backlash and refute his detractors Thursday morning, claiming they were distorting his argument.
“I did not say or imply that a candidate could do anything to reassure his reelection, only that seeking help in an election is not necessarily corrupt, citing the Lincoln and Obama examples,” he wrote. “Critics have an obligation to respond to what I said, not to create straw men to attack.”
This led to a series of social media posts that literally compared his rebuttal to his original argument.
— Kyle Cheney (@kyledcheney) January 30, 2020
Here was Dershowitz’s updated take:
What I said was that there are 3 broad categories of relevant motive:
1) pure national interest ( help the military)
2) pure corrupt motive ( get a kickback) And 3) mixed motive (help the national interest in a way that helps your reelection efforts )
— Alan Dershowitz (@AlanDersh) January 30, 2020
I gave as an example mixed motive President Lindon’s decision to send troops home from the battlefield to Indiana so that they would vote for his party. He genuinely believed that his party’s victory in Indiana was essential to the war effort, but it also helped him politically.
— Alan Dershowitz (@AlanDersh) January 30, 2020
[image via PBS screengrab]