Dershowitz: Trump pursuing quid pro quo to help re-election is not impeachable

One legal expert called Dershowitz's argument "absurd and outrageous." Another called it "inane."
Image: Alan Dershowitz
Alan Dershowitz, a retired Harvard law professor on President Donald Trump's, speaks to reporters as the impeachment trial shifts to questions from senators on Wednesday, Jan. 29, 2020.J. Scott Applewhite / AP

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By Allan Smith

Alan Dershowitz, a member of President Donald Trump's legal team, argued Wednesday that a quid pro quo arrangement that benefits the president politically is fine because all politicians believe their elections are in the public's interest.

He said that if Trump did withhold nearly $400 million in aid to pressure Ukraine to announce investigations of Democrats to help his campaign, it wasn't an impeachable offense because Trump thinks his election would be to the country's benefit. Therefore, he had no corrupt motive.

"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," he said during the first day of the question-and-answer period of the Senate impeachment trial.

Dershowitz said there were three possible motives for a quid pro quo in foreign policy: the public interest, personal political interest and personal financial interest.

In the end, he argued, only the latter is corrupt.

"Every public official I know believes" their election "is in the public interest," Dershowitz added.

Dershowitz's argument was met with swift pushback.

NBC News/MSNBC legal analyst Neal Katyal, a former acting U.S. solicitor general, called Dershowitz's argument "inane."

"That would allow a president to do literally anything and destroy re-elections as a check on presidential behavior," Katyal said. Referring to former President Richard Nixon's involvement in the operation at Democratic national headquarters in 1972 that led to the Watergate scandal, he said: "I'm sure Nixon thought the break-in was OK because it aided his re-election, which was supposedly in the public interest, too."

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Erwin Chemerinsky, dean of the University of California, Berkeley law school, said he thought Dershowitz's argument was "absurd and outrageous."

"It means that a president could break any law or abuse any power and say that it was for the public interest because the public interest would be served by his or her election," he said.

And a Democratic aide working on impeachment said that if Dershowitz's argument is to be believed, then "nothing" is impeachable.

"The president's lawyer actually argued today that a president is acting in the public interest if he believes it will help him get re-elected," the aide said. "Seriously. If President Trump's misconduct wasn't impeachable, then nothing is. Under this argument, even Richard Nixon wasn't impeachable."

On Thursday, Dershowitz said his comments were being "willfully distorted" by the media.

"They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything," Dershowitz tweeted. "I said nothing like that, as anyone who actually heard what I said can attest."

The House charged Trump with abusing his power by pushing Ukraine to announce investigations of Democrats while withholding hundreds of millions of dollars in aid and an White House official meeting for Ukrainian President Volodymyr Zelenskiy, contending that Trump did so to "cheat" in the coming election.

Trump and his allies have denied any link between the withholding of aid and the investigations he sought. But The New York Times this week published details of an unpublished manuscript by former national security adviser John Bolton, reporting that Bolton claimed that Trump directly linked investigations and aid in a discussion in August. Trump denies having done so. NBC News has not seen the manuscript or verified the claim.

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House Intelligence Committee Chairman Adam Schiff, D-Calif., was given the chance to respond to Dershowitz's argument, which he said he thought would provide "carte blanche" for such quid pro quo deals in the future. Schiff, the lead House impeachment manager, used a hypothetical scenario to make his point: What if President Barack Obama had told Russia in 2012 that he would withhold aid to Ukraine unless it launched an investigation of his Republican challenger, Mitt Romney?

"Do any of us have any question that Barack Obama would be impeached for that conduct?" he asked.

Speaking in 1998 about the impeachment of President Bill Clinton, Dershowitz, a retired Harvard law professor, said in an interview with CNN's Larry King that an impeachable offense "certainly doesn't have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty. You don't need a technical crime."

Dershowitz disavowed those comments last week, tweeting: "To the extent therefore that my 1998 off-the-cuff interview statement suggested the opposite, I retract it. Scholars learn to adapt and even change old views as they do more research."

Alex Moe contributed.