Maya Wiley Trump impeachment defender Alan Dershowitz's quid pro quo argument is absurd

But more than legally laughable, Dershowitz's extreme position should scare us. It would certainly scare the founders.
Image: Attorney Alan Dershowitz on a bus leaving the Capitol on Jan. 27, 2020.
Attorney Alan Dershowitz on a bus leaving the Capitol on Jan. 27, 2020.Alex Edelman / Bloomberg via Getty Images
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By Maya Wiley, legal analyst, NBC News and MSNBC

A sitting president of the United States has a quiet conversation with the president of Russia. She tells the Russian president that she’ll lift sanctions against Russia — if her counterpart opens an investigation into her political rival. “Hey, it’s a win-win,” the American leader says.

Is this hypothetical situation impeachable?

On Wednesday, President Donald Trump’s impeachment trial defense team member Alan Dershowitz told senators that, basically, the answer is no.

The following Dershowitz statement has been widely reported because it was so stunning: “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." That is an argument that would likely draw gasps of consternation from the Founding Fathers.

Dershowitz is arguing that a president potentially has the kingly power of deciding whether re-election is what’s best for the country. To make this claim, he suggests a president must have committed a crime to be impeached or something “akin to a crime,” whatever that means. Even the House Republican’s constitutional expert, John Turley, conceded that abuse of power is impeachable when he testified before the House Judiciary Committee on Dec. 4. Turley said, “There is much that is worthy of investigation in the Ukraine scandal, and it is true that impeachment doesn’t require a crime.”

History doesn’t support Dershowitz either. President Richard Nixon faced impeachment in part for trying to use the Internal Revenue Service to go after political enemies. Dershowitz tweeted on Thursday that Nixon was impeachable — but only for his established crimes, like tampering with evidence. And Alexander Hamilton, who contextualized the British “High Crimes and Misdemeanors” language in his “Federalist Papers,” expressed the need to protect the people from those who “are of a nature which may” be called “political, as they relate chiefly to injuries done immediately to the society itself.”

But let’s say for the moment that the Constitution requires a crime or criminal legal standards to convict and remove a sitting president. Dershowitz also suggested that it’s “dangerous to try to psychoanalyze a president, to try to get into the intricacies of the human mind," because any legitimate public interest concern, along with a corrupt one, is OK with righteous motivations. At least Dershowitz thinks an exchange for money is bad.

But Dershowitz also made an additional argument, which is that if nothing was ever exchanged for Ukraine aid — in other words, if a deal was offered but never completed — that also can’t be an impeachable offense.

If senators accept these arguments, they are saying that a president shouldn’t be impeached if there is any legitimate claim, no matter how unsupported by the facts or evidence of self-interest, that he was acting in furtherance of American interests (assuming of course no money actually changed hands). Since our fictitious president in my opening hypothetical isn’t taking money from Russia and believes what she is doing will be good for American interests, her actions are probably OK. This is what Dershowitz called a “mixed” motive in a series of tweets sent Thursday attempting to clarify his Wednesday testimony.

This isn’t the first time Dershowitz has made this argument. In a 2018 book he authored titled, “The Case Against Impeaching Trump,” he argued that if a president decided to let Putin invade Alaska because he or she thought Russia had a legitimate claim to that land, that president couldn’t be impeached. Do we really believe that a president can make that decision alone?

But even Dershowitz’s arguments as a matter of criminal law are sketchy. Prosecutors don’t have to prove a person’s motive or state of mind.

Certainly, if Dershowitz or anyone else on Trump’s defense team could show evidence that Trump was indeed concerned with corruption broadly in Ukraine, then Trump’s defense would be more meaningful. The problem is we have been offered no such evidence. The facts only show Trump was concerned with the Bidens, and with undermining the Mueller probe into his 2016 campaign. He then acted guilty by not informing Congress he was freezing the aid to Ukraine — aid lawmakers had appropriated. And remember that the Pentagon certified to Congress that Ukraine met its anti-corruption benchmarks.

Trump’s lawyers have given no clear defense against accusations that the president acted with “corrupt intent.” Instead, Trump has stonewalled congressional investigations.

This extreme position should scare us. It would certainly scare the founders. It also means that every person in this country standing trial for attempting to commit a crime — but who did not succeed, or confess — should just be sorry they aren’t the president of the United States.